Confusion Reigns, Legal Challenges Loom as Hundreds of Thousands Votes May Not be Counted Due to Maddeningly Confusing Ballot Design, Procedures
UPDATED: Registar's Office Say They Plan to Examine Non-Partisan Ballots, Will 'Seek Legal Authority to Count Those Votes'...
By Brad Friedman on 2/7/2008, 12:29pm PT  

We believe we can now pull this issue up out of the weeds a bit, after more than 24 hours of trying to make sense of what the Los Angeles County Registrar's office has been describing to the media as "real clear."

What's clear is that the only thing that's clear is the fact that the county's new acting Registrar of Voters, Dean Logan, has seriously blown his first outing since coming South from his disastrous 2004 Washington state gubernatorial election debacle.

Unless swift action is taken by Logan and CA Sec. of State Debra Bowen, it's likely that hundreds of thousands of voters may have been disenfranchised in last Tuesday's Democratic Primary Election...

As we reported in some detail Tuesday, there was, and still is, massive confusion about how Independent (also called Non-Partisan, also called Decline-to-State or DTS) voters were to cast their ballots to ensure they were counted in the LA County election.

In this, the country's largest county, which is larger than two-thirds of the nation's states, there are more than 700,000 such voters. After speaking to poll workers and voters, and combing media reports, there may be just about as many "real clear" explanations for how those DTS voters were supposed to have a) asked for, and then perhaps have received, the correct ballots to vote in the Dem Primary and then b) filled in special bubbles at the top of the ballots, which supposedly instruct the optical-scan machines to read the ballots as Dem primary votes, on the premise that the machines will end up counting the votes accurately.

If independent, non-partisan, DTS voters were lucky enough to not be auto-registered with the "American Independent" party instead; and if they knew to ask to vote in the open Democratic Primary; and if the poll workers knew to give them non-partisan ballots anyway; and if they were properly instructed to vote on that ballot in one of the booths marked as "DEM," with the Dem candidate InkaVote machine template booklet in it; and if they were told by the pollworker to be sure to fill in the bubble above the Presidential candidates' names to specify that this ballot should be counted in the Democratic Primary; and if they remembered to do it; and if their ballots were accurately counted by the optical-scan tabulators, then chances are good they may have successfully voted in the election.

If, on the other hand, as we're hearing from many voters and pollworkers, those voters were incorrectly handed Democratic ballots, as opposed to non-partisan ones, then it sounds like they will also stand a good chance of having their vote, counted (accurately, or otherwise) in the Dem Primary.

That's a lot of "ifs," of course, and the latter scenario relies on pollworkers getting the proscribed process wrong, in order for the vote to have a chance of being counted right.

And when the county Registrar's director of media operations, Paul Drugan, suddenly sounds like Don Rumsfeld, when quoted in the LA Daily News saying "Are some voters confused? Yes, they are. Is it widespread or systemic? I don't think that it is," we can only marvel at the disaster that very-recently-resigned, former Registrar and Diebold cover girl Conny "Cut and Run" McCormack left behind for Los Angeles to dig out of.

"Real Clear Instructions"

"It would almost be counterintuitive for someone to miss," acting Registrar Logan told AP with, presumably, a straight face the day before the primary. "We have put this information in voter education materials, and we've provided real clear instructions."

Really? Not according to the voters and poll workers and Election Integrity experts The BRAD BLOG has spoken to over the last day. We've yet to speak to anybody in the Registrar's office, because they've yet to return our phone calls.

The confusion surrounding what could well be regarded as "California's Butterfly Ballot", if any of the vested Democratic candidates have the common sense to mount a legal challenge to this mess, is incredible.

An email to The BRAD BLOG from a woman who served as an LA County Precinct Captain underscores the massive confusion:

There were 6 of us that worked in my precinct and we all thought that a voter registered as non-partisan who requested to vote as a Democrat was to be given a Democratic ballot and sent to the Democratic booth. We then instructed them to mark number 6 when in the Democratic booth in order to specify that they were non-partisan voting as a Democrat. The precinct ballot reader did not reject those ballots. Around noon I called my precinct coordinator to ask for clarification on the non-partisan/Democratic choice and she affirmed that we were using the correct procedure. Now I wonder if those ballots will be counted by the central tabulator because the number 6 bubble is marked but the ballot is Democratic.

The bad news: This Precinct Captain seems to have gotten the procedure wrong.

The good news: The non-partisan voters to whom she gave Democratic ballots, instead of the non-partisan ballots they should have been given, will likely have their votes counted in the Democratic Primary. Which is more than can be said about those who non-partisan voters who received the "correct" ballot.

The precinct captain had one part right, concerning instructing voters to fill in "the number 6 bubble"; but she, her co-workers and those who took the instructions from her precinct coordinator gave voters the "wrong" ballots, according to the prescribed procedures. And yet, those ballots likely were counted, unlike many of those who were given the "correct" non-partisan ballots but didn't know to fill in "the number 6 bubble."

On the Democratic ballot, there was no need to fill in that bubble. Even though it appeared in the following "real clear instructions" found in the "Official Democratic Sample Ballot and Voter Instructions" booklet mailed to voters who were registered as Democrats in LA County:

"Real clear" enough for ya? And remember, voters registered as Democrats didn't even need to fill in the bubble at all, but were given the above instructions in the mail nonetheless.

Our friend Mimi Kennedy, an Election Integrity advocate and chair of the national Progressive Democrats of America, also served as a Poll Inspector, in charge of one precinct in LA County on Tuesday.

She was so concerned about getting all of the procedures correct that she went to a precinct captain training session not once, but twice, just to make sure she got all of the complicated procedures correct. She also reviewed the instructional DVD given to pollworkers by the County, as well as the three thick pollworker procedures manuals.

She failed to get the non-partisan ballot procedure "right" anyway.

On Election Day, she went by the book, taking guidance from the Poll Coordinator, Registrar Hotline, and the manuals in an attempt to preserve the legitimacy of every vote. She tried to find out about the importance of marking or not marking the bubble, after she'd heard that Logan had been on the radio saying failure to mark it could ruin the ballot. None of the experienced pollworkers she worked with knew the answer either.

The day after the election, she reviewed the instructional DVD, looking for crucial instructions she thought she might have missed. One segment showed a Roster Clerk discussing the Non-Partisan procedures Kennedy had followed correctly. The Roster Clerk is seen on the video, turning to a back page in the Roster, which Kennedy had only been told to use for signing in registered voters, not for troubleshooting.

At the bottom of the page in fine print (which she read while freeze-framing the DVD) she saw the only reference in any of the materials she was given, regarding the selection of party designation by a non-partisan voter.

The fine print on the freeze-framed DVD said:

All nonpartisan voters receive a nonpartisan ballot, they will make a selection on their ballot while voting indicating their preference to vote the party’s candidates.

"There was no reference to the urgency of that ballot mark," Kennedy told The BRAD BLOG. "Clarity is crucial on Election Day. In that brief moment at the polls, a voter is making a difference between life and death for some, war and peace for us all. This kind of obfuscation is unconscionable."

Though Kennedy gave out the correct, non-partisan ballot to DTS voters who requested to vote in the Democratic primary, she says nothing in her classes or training manuals directed her to instruct voters to fill in "the number 6 bubble."

If they did not, and the comments given to the media by acting Registrar Logan are to be believed, then those voters will not have had their votes counted in the Democratic Primary.

Local Election Integrity advocate Judy Alter, the director of Protect California Ballots, told us a similar story. "In the training I got" as a Poll Monitor, she wrote, "the trainer said the [Non-Partisan] ballot was for the voters who only wanted to vote on the initiatives and for no presidential candidate."

She, like the first Precinct Captain mentioned above, was under the impression that DTS voters who wanted to vote in the Democratic Primary were to be given a Democratic ballot.

She, too, was wrong.

"The Dimensions of This"

"If you think about the dimensions of this," the founder of California's Courage Campaign, Rick Jacobs, told the Daily News, "three-quarters of a million people in Los Angeles County alone are Decline-to-State voters. I think this could be the difference between one candidate and another getting delegates and potentially getting the nomination."

Even if a hand count examination of all ballots is done, it may be well impossible to sort out the mess no matter what, since some of the op-scan bubbles on the non-partisan ballots are used for different purposes, depending on whether the voter filled in the "Democratic" bubble, the "American Independent" bubble (that party also had an open primary in which DTS voters could vote if they wished), or none of the above.

"Bubble 11 is for Hilary Clinton...Bubble 13 is for Barack Obama. If someone is voting American Independent, bubble 9 is for one of their candidates, but it's also for John Edwards," if the voter was attempting to vote in the Democratic Primary, Jacobs said. "So it's a true mess. And regrettably, people are going to be disenfranchised."

He said his organization would "take any legal action necessary," to deal with the situation.

As we reported on Tuesday, LA City Attorney Rocky Delgadillo may be interested in helping. At least he's making noises to that end. He issued a statement yesterday, "calling upon Secretary of State Debra Bowen and L.A. County Registrar Dean Logan to review the county's unique and potentially confusing ballot design."

"It would be unfortunate if non-partisan voters, confused by the county's unique 'double bubble' ballot design, did not have their vote counted," he said, urging Bowen and Logan "to do everything within their power to ensure that every vote is counted, and to carefully weigh voter intent against this confusing Los Angeles County ballot design."

"Los Angeles' non-partisan voters must not be disenfranchised because of a confusing ballot design," he added.

Nonetheless, for many, it's likely too late.

"No Evidence of a Problem"

Although Logan's failure to note the obvious problems with the county's "Double Bubble" issue is obvious, it was his controversial predecessor, Conny McCormack, who originally implemented the ridiculous scheme.

Last summer, after computer scientists and security experts commissioned to test the state's voting systems found myriad security problems, McCormack complained loudly about new systems and security mitigation requirements put in place by SoS Bowen. She charged that there was not enough time to implement the changes just six months before the Primary without putting votes and voters at risk. McCormack then resigned at the end of December, just one month before the Primary.

She now serves as a paid election industry consultant for two different organizations and lives in the town of Whittier with her husband, and in denial. She is also still complaining about Bowen's new requirements, despite the fact that world-class testers found they were able to penetrate both the physical and software security measures to take control of every system tested, without the use of source code, within minutes.

Despite that, last weekend McCormack, in a Whittier Daily News feature article, said, "there's no evidence of a problem," with the state's voting systems.

Given the problems and poll worker confusion which have emerged from the procedures she put in place before cutting and running from Los Angeles County, it's ironic that McCormack is now working for the Pew Charitable Trusts as a consultant and adviser "on a project on online training for poll workers," according to the paper.

By way of still further troubling irony, they report "she also is a consultant for the International Foundation of Electoral Systems, for which she will assist Puerto Rico with its voter registration system."

If you close your eyes and wish hard enough, like McCormack, and the bulk of the mainstream corporate media who have failed to cover all of these issues for so many years, you too will be able to see "no evidence of a problem."

ADDENDUM/UPDATE...

After shamefully downplaying the problems affecting thousands of voters yesterday by reporting "Few election glitches, except for independents," the LA Times is now following up with new information on the debacle from acting Registrar Dean Logan:

Spurred by confusion over Tuesday's voting, acting Los Angeles County Registrar Dean Logan said Wednesday that his office will examine more than 94,000 ballots cast by nonpartisan voters to determine how many votes for presidential candidates may have gone uncounted.

Logan said he also will try to determine whether the uncounted ballots would make a difference in the way delegates are apportioned between the Democratic presidential candidates and, if so, will seek legal approval to count as many as possible.
...
"We are going to go back and look at those ballots and make a determination of how many made a presidential selection without marking a bubble," Logan said. "If we can clearly identify the voters' intent, we will seek legal authority to count those votes."
...
Logan said election workers had identified about 189,000 votes cast by nonpartisans in Los Angeles County. About half of those people marked a bubble indicating they were voting in a party primary, which leaves more than 94,000 ballots in doubt. That number is expected to rise as the count continues, Logan said.
...
The presidential ballot for independents who voted in the Democratic primary was the same as the ballot for those who voted in the American Independent primary.

In the American Independent contest, there were three candidates running, while the Democratic Party had eight. The bubbles for the first three candidates in each party were in the same position on the ballot, making it impossible to tell after the fact if a voter was voting Democratic or American Independent --- unless that person also filled in the bubble indicating party preference.