California's Butterfly Ballot?

by: David Dayen

Mon Feb 04, 2008 at 13:13:41 PM PST

If you declined to select a political party when you registered to vote, you can still vote for Barack Obama if you request a Democratic ballot from the poll worker. Make sure you mark "Democratic" in the appropriate space or the vote might not be counted.

Vote might not be counted, ay?  What's this all about?

Turns out that in Los Angeles County, if a DTS voter requests their Democratic ballot and casts their vote, but does NOT mark "Democratic" in the appropriate space, the vote will indeed not be counted.  The ballot will go through the scan-tron machine, not register as a counted vote, AND will not spit back out for the voter to fix.  In LA County, they feed the ballot through the tabulator right in front of the voter, presumably to prevent errors just like this.  But this one doesn't get caught in all the tests.

This seems to me significant just as a voting rights issue.  There are 776,000 DTS voters in LA County alone, which is ¾ of everyone who has voted in the first four Democratic primaries thus far.  Setting up an additional hurdle for these voters if they want to participate in the Democratic primary, and then NOT INFORMING THEM if they fail to clear that hurdle, seems to me to be just completely unacceptable.

Here's the ballot, and you can see that there's virtually no reason to give people something else to screw up.  There's only one bubble to fill out, and it's already been implicitly "filled out" when they asked for the ballot in the first place.

Our friends in the Courage Campaign (who are urging DTS voters to vote in the Democratic primary) sent a letter to the Los Angeles County Registrar of Voters, noting that the law is pretty clear on the issue:

The statute is clear: voters who have already affirmatively requested a Democratic ballot and cast a vote for a Democratic candidate, but who inadvertently fail to mark line number 6, must have their vote counted.  To do otherwise is contrary to the statute.  We can find no statutory basis for requiring voters to mark additional boxes to indicate that they are DTS voters requesting a partisan ballot.

I'm trying to get a PDF of the letter up as well, but I'm all thumbs with this pesky technology, so bear with me.  The point is that a lot of people tomorrow may not realize that their vote is in risk of not being counted.  Which is terrible for democracy, regardless of preference in the primary race.

[UPDATE by Julia] The full letter from our (Courage Campaign) lawyer is now on the flip.  It was faxed this morning and Steven has had several discussions with the LA County ROV about this already.

Dear Mr. Logan:

I write on behalf of our client, Courage Campaign.  Courage Campaign has recently embarked upon a campaign to educate Decline to State  (DTS) voters about their right to request and vote a Democratic ballot in the February 5, 2008 Presidential Primary Election.

As you know, as of January 8, 2008, 19.66% of the nearly 3.9 million registered voters in Los Angeles County -- over 776,774 voters -- have declined to state their party affiliation and are thus eligible to vote for a Democratic presidential candidate.  Barriers to voting for DTS voters are already high, since many do not know that they are allowed to vote in the Democratic Primary for president.  In addition to those barriers, we are gravely concerned that on February 5, 2008, a great many of the ballots cast by these DTS voters will be invalidated.

We have reviewed sample Democratic and American Independent ballots that DTS voters will receive once they affirmatively request them.  (See attached).  DTS voters requesting partisan ballots and registered Democratic and American Independent voters will receive the exact same Ink-a-Vote ballot. However, contrary to statutory provisions set forth in the Election Code, Los Angeles County requires DTS voters to complete an additional hurdle by marking either box number 5 (for American Independent ballots) or box number 6 (for Democratic party ballots) or their vote for President of the United States will not be counted.  Invalidating a ballot based solely upon the failure to mark a box, (box 5 or 6) even though the voter has cast his/her ballot for a candidate for president,  constitutes an improper basis for rejection and a policy that violates the rights of DTS voters. (See Cal. Elec. Code § 15154(c).)

Furthermore, the Precinct Ballot Reader (PBR) equipment in place at every polling place will not notify DTS voters that they have failed to mark box numbers 5 or 6 when they have requested a Democratic or American Independent ballot. The PBRs will only notify voters if they have overvoted or left the ballot completely blank meaning that DTS voters will not know if their choice for President will count.

The statute is clear: voters who have already affirmatively requested a Democratic ballot and cast a vote for a Democratic candidate, but who inadvertently fail to mark line number 6, must have their vote counted. To do otherwise is contrary to the statute. We can find no statutory basis for requiring voters to mark additional boxes to indicate that they are DTS voters requesting a partisan ballot.

Section 13102(b) of the Elections Code, which authorizes persons who have declined to state their party affiliation to vote in the partisan primaries of those parties which have made the required authorization, does not indicate that the voter need do anything more than request a partisan primary ballot to do so. Section 13102(b) states in part:

At partisan primary elections, each voter not registered as intending to affiliate with any one of the political parties participating in the election shall be furnished only a nonpartisan ballot, unless he or she requests a ballot of a political party and that political party, by party rule duly noticed to the Secretary of State, authorizes a person who has declined to state a party affiliation to vote the ballot of that political party.

(Emphasis added.)[1] Indeed this is consistent with the Secretary of State's posted instructions for DTS voters on its website and the information provided from virtually every other California county elections official. (See California Secretary of State website, available at http://voterguide.sos.ca.gov/v...

Under Section 13102(d), county elections officials must maintain records of which  political party's ballot was requested pursuant to subdivision (b) or whether a nonpartisan ballot was requested, by each person who declined to state a party affiliation. These record-keeping requirements, as specified in Section 13102(d), do not require a DTS voter to mark any additional spaces to have their vote counted. Accordingly, record keeping obligations should not intrude upon the rights of DTS voters and we believe there are many other ways that the Registrar can properly maintain its records and still satisfy its statutory responsibilities. If the additional requirement is a function of the limitations of the Inka-Vote system, solutions must be immediately implemented to eliminate these extra hurdles.

When DTS voters affirmatively request a Democratic ballot and mark a choice for president they have satisfied their obligations under the Elections Code. Their ballot should accordingly be counted.  We therefore urgently request that you immediately amend your policies in a manner consistent with state law so that the votes of DTS voters requesting partisan ballots will count.  Anything less threatens to disenfranchise a significant segment of the electorate in LA County. We seek to resolve this issue as soon as possible before tomorrow's election and before the canvass commences and so that we may, if necessary, pursue any legal options.

In this historic Democratic primary election, all voters who have answered the call to exercise their right to vote should be confident that the ballot they cast will be counted.

Please contact me to discuss this issue further.

Sincerely,

Steven J. Reyes
Associate Attorney
Kaufman Downing LLP

UPDATE: The AP has a story up.  The acting registrar (Conny McCormack left in the middle of last year because Debra Bowen asking her to actually verify votes was just too taxing) had this to say:

"It would almost be counterintuitive for someone to miss," said Dean Logan, the acting county registrar. "We have put this information in voter education materials, and we've provided real clear instructions."

So, they've done all they could... except reminding people when it goes through the ballot feeder, which would take approximately five seconds.