Although both sides have declared victory, the race to replace State Senator Carl Krueger remains too close to call. The preliminary results released by the Board of Elections show David Storobin with a 143 vote lead over Lew Fidler. While severalnewsoutlets have focused on the 757 absentee ballots which remain to be counted, recent anomalies with New York's voting machines show that in a very close contest, only a hand count can ensure that the right contestant has won.
Just last month, the results of an upstate City Council race declared to have been won by challenger Augustine Beyer by a single vote were overturned after a full hand recount revealed a two-vote discrepancy that tilted the race in incumbent Richard Slisz’s favor. The voting machine was unable to read one improperly marked ballot where the voting oval had been circled rather than filled in. The hand inspection was enough for election officials to determine that the voter's intent had been to vote for Mr. Slisz. Perhaps more troubling however, was the second ballot with a vote for Mr. Slisz’s that was never scanned or registered by the machine at all.
Furthermore, the results from a Daily News investigation into the exceptionally high overvote rates the Brennan Center uncovered in the South Bronx indicate that these voting machines are far from infallible. The Daily News found that one of the machines used to scan ballots in the South Bronx made errors in reading nearly 70 percent of ballots during the September 2010 primary.
In our report analyzing overvote rates in New York, we listed one of the precincts in Mr. Kruger’s district — AD 46, ED 051— as having Brooklyn’s 8th highest overvote rate in 2010. Many other precincts in this senate district did not provide any data at all, but given the demographics of the district, it seems likely that there were other precincts with high overvote rates both in 2010 and 2012. In some of those cases, voter intent may be clear to the human eye, but not a machine.
Unfortunately, New York City does not publish the number overvotes — as is done in Rockland County— making it virtually impossible for anyone outside the Board of Elections to identify areas where voting machines have registered high rates of uncounted votes.
A provision adopted by the City Board of Elections requires a hand recount of paper ballots in contests where the margin of victory is less than 10 votes or half a percent of the total votes cast. Given the newness of these machines and recent history, even a margin slightly higher may warrant a careful hand recount to ensure that the actual winner is declared the victor. If a recount does happen, look for totals (and maybe even the declared winner) to change.
We’re always interested in learning about new projects to improve elections, so we thought we would share an exciting new proposal to make it easier for election administrators to improve ballot design. By applying the basic design principles to ballots, Field Guidelines to Ensure Voter Intent proposes to publish a series of books with guidelines and examples of common ballot design problems to help election officials employ ballot design techniques that help ensure that every vote is cast as voters intend.
As the Brennan Center found in Better Ballots, common problems due to poor ballot design and instructions have led to the disenfranchisement of hundreds of thousands of voters. As recently as last week, we were reminded of the importance ballot design can play in a close election. The results of a hotly contested City Council race in upstate New York were overturned after a hand recount found that a voting machine had not properly counted two ballots. One of the two ballots in question was improperly marked; a voter had circled an oval instead of filling it in. Although the machine was unable to detect the vote, the voter’s intent was clear to election officials as they reviewed the ballot. The margin of victory in that election was a single vote. Mistakes like these can often be prevented through clearer instructions on how to properly mark a ballot.
In this upcoming election season, we hope to see more important tools like these that will help election officials prepare for elections.
The Brennan Center released a report this week detailing the tens of thousands of votes that were lost in New York because voting machines read their choices as “overvotes” – the invalid selections of more than the allowable number of candidates. Instead of returning the ballot, as is done in many other jurisdictions, the ballots were retained and the machine displayed a screen message using complex election jargon that gave voters misleading cues about their options. In the 2010 election, this confusing message led to as many as 20,000 lost votes in the governor’s contest alone and as many as 60,000 lost votes across all contests. The New York Times, Daily News, WNYC, and Politico have all done a great job covering the story.
The Brennan Center and others warned state election officialsabout the potential problems that would arise due to this confusing message. Represented by the Brennan Center, the NAACP New York State Conference, the National Coalition on Black Civic Participation, Families United for Racial and Economic Equality, and several individual plaintiffs filed a lawsuit against the New York State and New York City Boards of Elections in June of 2010 over the discriminatory impact on minority voters.
Our new study confirms that people of color were disproportionately likely to lose their vote. One percent of black and Hispanic voters in New York City did not have their votes for governor counted. In two predominantly Hispanic election districts in the South Bronx, nearly 40% of all votes were not counted in 2010; despite our repeated requests for an investigation into the overvotes in the South Bronx, we are not aware that one has been conducted. Our report also details problems with ballot design, finding that voters were more likely to cast an overvote in a race where candidates for the same office were displayed across two rows of the ballot (such as in the governor’s contest and in Sen. Kirsten Gillibrand’s U.S. Senate contest).We estimate that if no revisions are made to the overvote message, over 100,000 votes in New York could be lost in the 2012 election, when turnout will be much higher.
Fortunately, as detailed in the report, the State Board of Elections has agreed to adopt a better overvote warning in time for the 2012 election. But more steps can and should be taken to prevent lost votes. Election officials should make election results available by precinct; those results should report the number of overvotes in each contest on the ballot. When problems are discovered, election officials should be empowered required to investigate the reasons for high overvote rates. Ballots should be treated as public records to allow members of the public and voting experts to determine if ballots were in fact overvoted or simply recorded as overvotes because of a machine error. And states should reexamine their ballot design requirements and provide election administration officials with the guidance and flexibility they need to create voter-friendly ballots.
The recommendations are not specific to New York and can serve as models for jurisdictions across the nation to ensure that votes are counted as they were intended to be cast. The new report is available through the Brennan Center’s website.
The Brennan Center submitted testimony today before the New York City Council Committee on Governmental Operations. The Committee held a hearing on a resolution calling on the New York State Legislature and the Governor to pass legislation to improve paper ballots in New York State. One of the bills supported by the City Council’s resolution is the Voter Friendly Ballot Act of 2011 – the product of collaboration between the Brennan Center, the Usability Professionals Association, AIGA, and Assemblyman Brian Kavanagh.
Late last week we were happy to announce a big win for New York's minor parties and all of New York's voters, as we settled our lawsuit on behalf of three of New York's minor parties against the state Board of Elections. The lawsuit challenged a discriminatory vote-counting practice called "double voting."
Essentially, when a candidate ran for two different party lines for the same office, some voters were choosing to "double vote": that is, mark in the paper ballot with multiple votes for the same candidate on the different party lines. Under the old practice, New York's new voting machines accepted such ballots, counted these ballots as having a single vote for the candidate on the major party line (e.g. Democrat or Republican), and ignored the voter's attempt to vote on the minor party line as well. Now, voters will be notified of the problem and given opportunities to make sure their vote counts for the party of their choice.
Sam Roberts at the New York Times City Room reported:
Under a consent decree signed approved Thursday by Judge Jed S. Rakoff of United States District Court in Manhattan, the board agreed to reprogram voting machines before the 2012 general election to prevent people from voting more than once for the same candidate.
“They have to put a very bold message on the screen that says basically: ‘You voted incorrectly. Your candidate preference is clear, but your party preference is not,’ ” said Daniel Cantor, executive director of the Working Families Party. “Then you get to press a button and get your ballot back so you can fix it. Our view is that voters who mean to vote for us will want it to count.”
The improvements that will come from this settlement will help improve elections for all New Yorkers.
We've blogged before about serious concerns the Brennan Center and other New York voting rights groups had about policies adopted by the State Board for New York's new electronic voting machines, which will be used statewide for the first time this September. After extensive research, we have concluded that these policies violate New York State law and should have been precleared with the Department of Justice, pursuant to Section 5 of the Voting Rights Act. This apparently was not done. We have alerted the Department of Justice, and the New York State and City Boards to our findings. A copy of the letter detailing our findings, and a press release can be found here and here.
Last week's election presents
more evidence, if any was needed, of the potentially disenfranchising effects of
poor design. As a political blog in Seattle noted, a poorly-designed ballot probably caused as many as
40,000 King County voters to miss a property tax State Ballot Initiative.
As you can see from this picture of the ballot:
The contest was placed
immediately below the instructions and to the left of all other contests -- very easy for voters to miss. What can
election officials do to avoid these kinds of mistakes in the future? Well, one thing is to use design checklists, like those provided by the Design
for Democracy and the Brennan Center. But I'm not sure that in this case, either of those checklists would have
alerted officials in King County to the problem. (While both checklists emphasize
the importance of consistency in presentation -- and having all contests except
one to the right of the instructions is certainly inconsistent -- I'm
afraid this direction would have been too general to provide sufficient warning
for many officials).
And while it's easy, in retrospect, to say this
problem should have been obvious, I don't think that's fair. Such
problems are almost never obvious beforehand. Election officials and
others working on forms are usually on tight deadlines, trying to get
the ballots to fit into limited space and ensuring that everything and every
name is correct. Even if they are only focused on how a design
might confuse voters, they are often so familiar with the design that they're blind to problems; for the very same reason that it's often so difficult to
spot one's own typos.
What probably would have alerted
officials to this problem ahead of time, and at little or no cost, would have
been a simple usability test: observing ten or fifteen King County citizens as
they "voted" on the ballot before the design was
finalized. This solution is simple, easy and cheap. The Usability Professionals
Association has a great explanation of how it's done.
If county officials watched a dozen people fill out
the ballot, at least a couple might have accidentally skipped the
ballot initiative. And, with that, officials would have been alerted to
the fact that their ballot contained a serious flaw.
The ballot eventually got it's
usability test, of course...but on Election Day. And
approximately 40,000 voters showed -- a little too late -- that this particular ballot
design failed.
Jackson Pollock? Perhaps Brice Marden? Afraid not. Unfortunately, those frenetic abstract gestures to the right were made by a Minnesota voter on a ballot rather than a canvas (click image to see ballot).
The Senate contest between Al Franken (D) and Norm Coleman (R) is still undecided, as the recount has now stretched well into holiday shopping season (the widget posted below should provide the most up-to-date tally). Interestingly, a number of media outlets have posted features on their sites that allow anyone to examine all the contested ballots. The first time I scrolled through the Star Tribunes' version, "Ballot Challenge," one thing quickly became clear: usability, the ease at which voters are able to correctly navigate and mark a ballot, appeared to be a significant issue for some voters. As a result, there's a chance their vote won't count in a race that could very well be decided by a handful of votes.
This morning, I turned to Dana Chisnell, a researcher who studies "how people interact with technology specializing in design for older adults, ballot usability, and plain language," for insight as to why some of these challenged ballots have been miss marked, mangled, and must now go before a canvassing board to be interpreted. The analysis below is by no means exhaustive, but merely a sampling of her genius. For more on her work, click here to read her postings on the Usability Professional's Association blog.
The ballots we discussed can be found on the Minnesota Public Radios feature, here. Click on the ballots to see them larger.
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