Dec 07 2009

Memo of Law in Undervote Case

Published by at 10:19 am under Elections

We’ve filed a memorandum in support of our case.  You can view it here.

5 responses so far

5 Responses to “Memo of Law in Undervote Case”

  1. # on 08 Dec 2009 at 5:56 pm by Paul Malischke

    Your memorandum states:
    “Currently, in accordance with HAVA, the M100 provides error notification for overvotes,”

    However, I suspect the ES&S M-100 fails to meet the clause (II) below, from HAVA 301.a.1.A:
    “(A) Except as provided in subparagraph (B), the voting system (including any lever voting system, optical scanning voting system, or direct recording electronic system) shall …
    (iii) if the voter selects votes for more than one candidate for a single office …
    (II) notify the voter before the ballot is cast and counted of the effect of casting multiple votes for the office;”

    The Wisconsin Government Accountability Board was recently asked to approve the ES&S DS200, but they were unable to find any such notification. Please check your M-100 or its documentation and let us know the exact wording of such notification, if any.

    Cheers,
    Paul Malischke

  2. # on 09 Dec 2009 at 8:20 am by Mark Shelden

    Interesting point Paul. The message on the machine certainly doesn’t have that language. I’m guessing that the feeling of various certification authorities is that the requirement here is met by either instruction from the judge or instructions in the directions given to voters.

    It should be remembered that some states have a purely educational aspect to their error notification and the technology is not used to notify voters. I was surprised to learn that in my recent research.

    I’m going to be curious to see how the DS200 and similar systems are accepted. I have a concern that giving too much of a message to voters is going to confuse and intimidate them. It’s another reason I feel the undervote notification is so wrong. We need to focus our voter education efforts on real problems.

  3. # on 09 Dec 2009 at 1:20 pm by Paul Malischke

    I agree that “the requirement here is met by either instruction from the judge…”, but only if the system requires pollworker intervention. The M-100 and the DS200 hold the overvoted ballot and invite the voter to press the “Accept” button, and cast a spoiled ballot. It’s easy to do without getting any help from a pollworker or election judge.

    By contrast, the Optech Eagle and the Premier Accuvote TSx immediately return the overvoted ballot to the voter. This technique invites the voter to examine their ballot for errors, and allows time for the pollworker to help. On the Eagle, the override button is hidden, so the voter cannot cast the overvoted ballot without pollworker intervention.

    The 2002 Voluntary Voting System Guidelines (VVSG) do not include the HAVA requirement, since it was written before HAVA. The DS200 was certified this summer by the EAC to the 2002 VVSG.

    A few days ago, I wrote to the EAC’s advisory commttee and asked them to change the VVSG so that an overvote ballot is immedialey returned to the voter. More at http://www.fairelectionswi.com/Overvote/Overvote.html

  4. # on 09 Dec 2009 at 2:02 pm by Champaign County Clerk

    Paul, this is an interesting issue that actually came up during the time that we were looking at equipment. There are good points on each side of it. I know some people are adamantly opposed to the M100 because of the so called incentive to accept. I believe I disagree, because I think the secrecy of the ballot is enhanced by keeping it in the machine. But my opinion is certainly not strong on this.

    I’m going to do some more research on overvotes and spoiled ballots that will hopefully be able to give us some good numbers on the number of problems that are slipping through. It will also be interesting to see how the numbers change as people become more accustomed. A comparison of over and undervotes from the primary of 2006 with our 2010 primary ought to give us an idea as to whether we’re making progress with education and design measures.

  5. # on 09 Dec 2009 at 2:16 pm by Paul Malischke

    Your points about secrecy are a lot more convincing when it comes to undervotes. Undervotes are usually intentional.
    However, overvotes are not. They are almost always due to an error, perhaps because of bad ballot design, voter error, or a tabulator out of calibration. Before a voter casts a spoiled ballot, it is most important that they get the ballot back in order to examine it, get an explanation if needed, and a chance to correct the ballot. No voter wants to throw away their vote.

Trackback URI | Comments RSS

Leave a Reply