Mississippi Ballot Will Disenfranchise Hundreds of Thousands of Voters

September 12, 2008

For Immediate Release
Contact: Tim Bradley, Brennan Center for Justice, (646) 452-5637

Ballot Experts Urge State Officials to Place Wicker-Musgrove U.S. Senate Contest at Top of Ballot with Other Federal Races

Jackson, MS – Today the Brennan Center for Justice at NYU School of Law, a non-partisan advocate for voting rights and sound ballot design, released a letter sent yesterday to Mississippi state officials sharply criticizing their intention to place November's Wicker-Musgrove U.S. Senate race at the bottom of Mississippi's ballot, far from the other federal races listed in the 2008 election.

Concerned that the confusing layout will mislead and disenfranchise hundreds of thousands of Mississippi voters this November, particularly low-income and minority voters, the Brennan Center's 2-page letter to the Mississippi Governor, Secretary of State and Attorney General comes one day after the New York Times called attention to the controversial ballot in a national editorial, "Mississippi's Ballot Trick".

In the letter, Lawrence Norden, Counsel at the Brennan Center and co-author of a recent study on Ballot Design called Better Ballots, cites multiple studies on how contest placement greatly affects the accuracy of voters' choices, and urges Mississippi officials to reverse their decision and place the contest towards the top of the ballot with the other federal races.

"Poor ballot design—such as placing a U.S. Senate race at the bottom of a ballot, when all other federal races are at the top—frustrates voters, undermines confidence in the electoral process, and often results in the loss of a large number of votes. In Better Ballots we found that placement of a contest on a ballot has a tremendous impact on whether voters' choices are accurately recorded. When a contest is not placed where voters expect it to be placed, those voters are more likely to make errors—and in particular, to miss the contest altogether," writes Norden.

  • In 2006 in Sarasota County, the contest for Congressional District 13 was displayed on the touch-screen machines' ballot in a place that made it difficult for many voters to find. The result was that approximately 15% of voters using these machines did not record a vote in the Congressional race, compared to just 2.5% of voters who voted on absentee ballots (which did not use the confusing design).
  • In Mississippi in 2002 and 2004, we saw that the further down on a ballot a contest is placed, the less likely voters are to vote on it. Approximately 3%—or 18,000—of all voters failed to record votes in Congressional races at the top of the ballot in Mississippi in 2002. By contrast 21%—or more than 140,000 voters—did not have votes counted on a statewide Amendment, located at the bottom of most ballots that same year. Similarly, in 2004, 7%—or 88,000 voters—failed to record a vote on a widely publicized Amendment related to gay marriage.
  • Low-income and minority voters are likely to be disproportionately impacted by the decision to move the U.S. Senate contest to the bottom of the ballot. For instance, only 3.5% of voters in counties with median incomes of greater than $32,500 failed to vote on the gay marriage Amendment in 2004; that number increased to 5.8% for counties with median incomes between $25,000 and $32,500, and jumped again to 10.6% for counties with median incomes below $25,000. Similarly, just 4.7% of voters in counties with less than 30% African American population failed to cast a vote on the gay marriage Amendment; in counties with more than 30% African Americans, that number was 9.2%.

"We do not believe that your placement of local special election contests at the end of the ballot in recent years should have any impact on where to place the Wicker-Musgrove U.S. Senate contest this year. Local contests are always at or near the bottom of the ballot in Mississippi, regardless of whether they are part of a special election. In the special race to fill the remainder of Trent Lott's term, the Wicker-Musgrove race, most voters will expect to find it near the top of the ballot, with other federal and statewide contests. We can think of no legitimate public purpose in designing a ballot that will conflict with those expectations. For that reason, and to prevent widespread voter confusion and disenfranchisement in this Senate race, we strongly urge you to reverse your decision and place the Wicker-Musgrove race on the same portion of the ballot as all other federal contests," writes Norden.

The full letter is available here.