'X' MARKS THE SPOT, OR DOES IT? AN ANALYSIS OF VOTER INTENT LAWS AND THEIR IMPLICATIONS FOR COUNTING PAPER BALLOTS.

AuthorKopko, Kyle C.
  1. INTRODUCTION

    The COVID-19 pandemic of 2019-2020 changed the daily lives of billions of people across the globe. As stay-at-home orders went into effect, governments were forced to modify a wide range of activities that, under normal circumstances, would have occurred through in-person events. This included the conduct of elections. According to an analysis by The Washington Post,1 at least 23 states2 and the District of Columbia changed their election procedures to allow for some form of vote-by-mail (VBM) due to the COVID-19 pandemic. At the time of the report, approximately 84% of U.S. voters had the ability to cast a ballot by mail.3 These changes in election laws resulted in historic VBM voter participation. At the time of this writing, Professor Michael McDonald's U.S. Election Project reported that at least 65,642,049 voters cast a mail-in ballot in the 2020 election.4 Compare this with the 2016 presidential election, which yielded 47,015,596 early votes--that is, both in-person early voting and VBM.(5) Clearly, the total number of VBM ballots in 2020 alone eclipsed the total early votes cast in 2016 and previous presidential elections.(6) The magnitude of this change is difficult to overstate.

    While there are a number of benefits associated with VBM, such as minimizing public health risks during a pandemic and providing a convenient way of casting a ballot, the increased use of VBM presents some potential challenges for election administrators.(7) Because VBM employs the use of paper ballots,8 voters may mark their ballot in a manner that is not consistent with ballot instructions. Specifically, improperly marked ballots raise questions as to a voter's intent, and whether the ballot should be counted (in whole or in part). In the event of a close or disputed election, state statutes, administrative codes, and other guidance promulgated by the state's chief elections office dictate the rules/standards by which election administrators determine voter intent and, ultimately, whether to count a given ballot. However, in the event that legal guidance is ambiguous or vague, or simply does not address a particular scenario in which a ballot is marked improperly, then election administrators are faced with the difficult task of determining the ballot's validity and for whom a vote should count.

    Previous research indicates that individuals who count ballots under ambiguous counting guidelines may be influenced by the subconscious bias of motivated reasoning, particularly if an individual counting ballots prefers one candidate or political party over other alternatives.(9) As such, the expansion of VBM, coupled with imprecise ballot-counting standards, could prove problematic if there are a large number of improperly marked ballots and/or a closely contested election.

    This article proceeds as follows: Section II, provides a brief overview of the Help America Vote Act of 200210 and its requirement that states adopt a uniform standard to determine voter intent. This section also provides examples of problematic ballots that election officials may encounter during the counting process. Most of these ballots are modeled off of actual disputed ballots from the 2008 Minnesota U.S. Senate election, and they serve to illustrate the difficulty in determining a voter's intent with a high degree of certainty." The last part of this section provides a brief theoretical overview of ballot-counting provisions based upon concept of rules versus standards. Section III addresses legal specificity for ballot-counting laws or administrative regulations in all 50 states and the District of Columbia. Specificity is measured in two ways: For jurisdictions that provide pictorial examples of what does or does not constitute a valid expression of voter intent, specificity is measured as a count of the total number of pictorial examples. For those jurisdictions that do not employ pictorial examples, specificity is measured by a word count of the legal provisions. Jurisdictions are then grouped into four categories, based upon the type of guidance provided (pictorial examples or word count) and whether the jurisdiction provides examples/words that are above or below the median for each respective modality. Section IV reviews the relevant scholarly literature that discusses psychological biases as applied to the ballot-counting process. Finally, this article concludes by making policy and procedural recommendations to mitigate the potential problems associated with ballot-counting rules that are ambiguous, vague, or simply do not provide ample detail to resolve a ballot in which voter intention is not obvious.

  2. THE FEDERAL REQUIREMENT OF VOTER INTENT STANDARDS AND HYPOTHETICAL BALLOTS

    Before the 2000 presidential election, states were largely free to enact legislation and promulgate rules relating to the administration of elections via the U.S. Constitution's Tenth Amendment.(12) However, after the 2000 presidential election and significant voting problems in Florida,13 Congress passed, and President George W. Bush signed into law, the Help America Vote Act (HAVA) of 2002.(14) Among other things, HAVA required states to adopt "uniform and nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting system used in the [s]tate."(15) As a practical matter, this meant that states could not allow counties or other political subdivisions to use non-uniform ballot-counting rules; a ballot that was improperly marked or was in dispute must be counted using the same process and guidelines to discern a voter's intent, regardless of which county reviewed the improperly marked ballot.

    It is important to underscore that HAVA did not create a national standard by which to evaluate the validity of a ballot or a voter's intent. States were left to determine for themselves what was an appropriate definition, particularly given the fact that states could control which voting methods, machines, and associated technology would best meet their needs.(16) Thus, what constitutes a valid vote for a given voting method may vary from state to state.(17)

    But how does one define a valid vote, or a voter's intent? This varies depending on election method and technology. For direct-recording electronic (DRE) machines, such a determination is often straight-forward. Typically, a machine will note, in real-time, if a voter has improperly selected a candidate, or a machine will ask voters to confirm their selection(s) using a touch-screen mechanism. The DRE machine then provides the voter the opportunity to correct their mark if it is not placed as the voter intended. Once a voter makes a change and confirms their selection, the ballot is accepted as a valid vote. However, DRE machines are limited to in-person voting and do not address the concerns of providing voting opportunities for millions of voters during a pandemic. As such, during the COVID pandemic, paper ballots were the only practical option available to election administrators, by default.(18)

    For the vast majority of paper ballots, which are usually optical scan ballots, determining whether a voter has properly expressed their vote intention, constituting a valid vote, also is straight-forward. If a voter completely fills in an oval, circle, box, connects an arrow, etc., for the designated candidate(s) of their choice consistent with ballot instructions, that will signal a voter's intent and the ballot will be counted as a valid vote for virtually all jurisdictions.(19) Figure 1 and Figure 2 present examples of appropriately completed optical scan ballots. For each of these ballot examples, Candidate A would receive the vote (assuming normal ballot-counting processes) because a completed mark appears within the designated voting area next to a candidate's name.

    Now, consider several hypothetical examples, each of which poses some level of difficulty in determining a voter's intended vote choice, because a voter did not appropriately mark the ballot. For the time being, consider these ballots in a vacuum without the benefit of guidance from any election laws or an examination of the ballot as a whole (where a voter likely would have made marks for candidates running for other offices). In the absence of clear statutory or regulatory guidance, how might officials dispose of these issues?

    In examining these ballots, one could argue that the voter expressed a preference for Candidate A in Figure 3 and Figure 4 (simply because the voter placed a mark in the area assigned to Candidate A), and that signifies voter intent. Therefore, since the voter intended to vote for Candidate A, the ballot should be counted for Candidate A. But, as a matter of law, these votes may or may not be counted. Much depends on statutory definitions or administrative policies promulgated by the chief elections officers in each state. In the absence of clear guidance for election officials--and, for that matter, clear instructions for voters--reasonable people may disagree whether and how to count inappropriately marked ballots; some may count the vote for Candidate A, others may reject this particular portion of the ballot because voter intent is not obvious or not without ambiguity. Consider Figure 3, where the oval is partially filled. If this ballot were not counted by an optical scan machine,20 or if an observer or candidate raised an objection to the consideration of this ballot, how might an election official treat this ballot? On one hand, an election official could conclude that this example constitutes a vote because a mark was made in the designated voting area next to a single candidate's name. On the other hand, an election official may conclude that the voter changed their mind or had second thoughts about supporting Candidate A. Instead of erasing the mark or requesting a new ballot, the voter simply did not complete the oval and decided not...

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