Voter Friendly Ballot Act is Good for New York

Published in the Poughkeepsie Journal.

Recently, President Obama announced the creation of a federal commission to help improve citizens’ voting experiences at the polls. Here’s an obvious suggestion for improvement in New York: Make our ballots easier for voters to use.

In your polling place in November, things may have looked a little bit different than in the past. For the first time, New Yorkers used optical scanning machines and paper ballots to vote in a presidential election. Many voters, particularly older voters and those with impaired vision, found the paper ballots difficult to read and use. This is because they did not change to reflect our new voting system: Our ballot requirements stayed the same while our ballot size shrunk significantly. As a result, voters faced a crowded and confusing ballot that at best made the voting experience more difficult and at worst invalidated otherwise legitimate votes.

New York’s ballots are governed by strict, outdated guidelines intended for the retired mechanical voting machines. These rules do not allow best practices for paper ballots, and led to our 2012 ballots containing complicated instructions, outdated symbols, small text size and confusing oval placement. Unfortunately, without a change in New York’s codified election law, local election officials are prevented from improving the voter experience in their community.

There can be little question that poor ballot design leads to a far more negative experience for voters. As a 2010 statewide survey by the League of Women Voters found, up to 20 percent of voters had problems completing the paper ballot. Poorly designed ballots can invalidate votes and interfere with the integrity of our election process. The Brennan Center has estimated that design defects in ballots and voter instructions contributed to the loss of several hundred thousand votes in the last two federal elections. Evidence suggests that low-income and elderly voters particularly bear the brunt of poorly designed ballots, raising fundamental issues of access to the political process.

We can do better.

The Voter Friendly Ballot Act of 2013, sponsored by state Assemblyman Brian Kavanagh and endorsed by the AARP, the Brennan Center for Justice, and many other organizations concerned with voting rights, would set new standards to ensure that New Yorkers can vote with confidence while preserving flexibility for local election administrators. Voter instructions would be shortened and clarified, legibility would be increased by reducing the maximum number of languages appearing on the ballot, and text size would be made more readable, among other improvements.

There are many complex issues facing our voting system that President Obama’s commission needs to address. For our ballot design problems, however, the solution is simple— update our rules so they better reflect our new voting process and improve the voting experience of all New Yorkers.

Overvotes: Phantoms of the Ballot Box

The New York State Board of Elections, New York City Boards of Elections, and voting machine manufacturer ES&S each released reports yesterday detailing the results of an investigation into the abnormally high numbers of lost votes attributed to “overvoting” in the South Bronx in 2010. The upshot is that a machine defect led to “phantom votes” on at least one machine used in the 2010 election, resulting in some candidates receiving more votes than they should have, and the choices of many more voters being voided when the machines detected both actual and phantom votes in the same contest. Now that the reports on how this happened are out, election officials must make sure that what happened in the Bronx in 2010 does not happen again in the future.

Voting machines record overvotes when they detect more than one candidate selected for a contest. In such cases, no vote is recorded for any candidate in the overvoted contest, regardless of the voter’s actual intent. The Brennan Center first uncovered a high number of overvotes in the South Bronx while reviewing documents produced for discovery in a litigation it brought against the State and City. It published its findings in Design Deficiencies and Lost Votes; the report notes that in some election districts up to 40% of the votes cast did not count.

The investigations conducted by the City, State and ES&S conclude that the unusually high overvote rates were not due to voter error, but rather a malfunction in the voting machine once it became heated after a couple hours of use.  The malfunction resulted in a distortion of the ballot images as read by the machines, causing blank ovals to appear darker than they should have. The machines registered these darker images as votes. These “phantom votes,” either led to some candidates getting extra votes (if no candidate had been chosen by a voter) or overvotes (if the voter had filled out a different oval for another candidate in the same contest). 

While the machines in New York provide voters with a warning when ballots cannot be read because of overvoting, the warning used complex election jargon that gave voters misleading cues about their options. Voters in these predominantly Hispanic South Bronx districts apparently chose to override this message without understanding the result was that their votes were not counted. Fortunately, as part of a settlement agreement reached with the State, New York’s voting machines will be reprogrammed before the presidential election in November with an overvote warning message that uses plain language that more clearly explains to voters if the machine is having problems reading their ballot.

We applaud the State and City Boards for conducting a thorough investigation of this matter. The State Board of Elections has forwarded their report to the U.S. Election Assistance Commission so that it can be distributed to other jurisdictions across the country using the ES&S DS-200.

However, more steps need to be taken to prevent lost votes in the future by detecting these problems when they arise. Election officials in New York should publish election results by precinct and report the number of overvotes in each contest. Rockland County already does this. The only reason the Brennan Center was able to discover this anomaly was by reviewing documents obtained in the course of litigation. Had we not done so, the problems in the South Bronx would have likely gone undetected and the machines would continue to be used election after election. It should also be noted that we did not receive complete data from New York City or from other jurisdictions in the state that use the DS-200. As a result, there is no way of knowing where else these kinds of problems may have happened. 

The other factor that could decide the Senate contest in Brooklyn

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 several news outlets 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 8^th 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.

Machine Malfunctions in the Bronx

This Daily News Editorial may provide some insight as to what happened on Election Day in the Bronx’s P.S. 65 where the Brennan Center uncovered extremely high overvote rates—detailed in Design Deficiencies and Lost Votes.

Poor Design Leads to Lost Votes Across New York State

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 Times, Daily News, WNYC, and Politico have all done a great job covering the story.

The Brennan Center and others warned state election officials about 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.

Brennan Center Testifies in Support of a Better Ballot

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.

Brennan Center City Council Testimony on Res. 671-A