Asks for 'Precinct-by-Precinct Reconciliation' of Poll Rosters to Begin Accurately Accounting for Tens of Thousands of Non-Partisan Voters Who Cast Machine-Unreadable Ballots
By Brad Friedman on 2/18/2008, 6:18pm PT  

California Sec. of State Debra Bowen wants Los Angeles County's acting Registrar of Voters, Dean Logan, to check the poll rosters of thousands of precincts in order to help accurately count tens of thousands of currently uncounted ballots cast in the Super Tuesday Democratic Primary.

As The BRAD BLOG pointed out last week, tens of thousands of currently uncounted ballots cast by Non-Partisan voters who chose to cross over and vote in the Democratic Primary, but who failed to ink in a second bubble meant to instruct voting machines to count the ballots as Democratic votes, can be counted accurately, as per the voters' intent, if Logan bothers to check those poll rosters.

Bowen, who sent a 3-page letter [PDF] to Logan after our article pointed out that he was simply wrong, in his own report [PDF] to the County Supervisors, when he claimed that it was "impossible" to determine the intent of the voters on those ballots.

It's not, and Bowen clearly seems to understand that, as evidenced by both her letter to Logan and comments she made last Friday on Northern California National Public Radio affiliate KQED, where she said she was "shocked" to hear that the debacle had happened in several elections previously...

Bowen said Friday that she was "shocked" to hear that L.A. County's "Double Bubble" ballot had been used before, and, as we confirmed in an earlier report today, which showed that the county's former Registrar of Voters, Conny McCormack, who designed the ballot, failed to do anything to correct the problem, despite uncounted Non-Partisan ballots rates of some 40% in previous elections.

"No one could have predicted this," McCormack told the LA Times today, in her best imitation of Condoleeza Rice, despite the fact that the problem was perfectly predictable. The paper also indicated today that officials at the Registrar's office knew of the problem months ago, well before McCormack abruptly vacated her post, just over a month before Election Day.

"I certainly wasn't aware of this," the Secretary commented on KQED's Forum program last week. "The ballot design is done down at the county level," she said, adding "I was shocked to hear it, frankly."

She concurred with us, however, that most of the county's thousands of currently uncounted ballots can be counted, and counted accurately.

"A visual inspection of these ballots, alone, will not tell us which primary and which candidate the voter intended to cast a ballot in," Bowen correctly pointed out on Northern California's National Public Radio affiliate station on Friday. We had made the same point earlier in the week, while explaining that the dearly departed McCormack's insane ballot design specified use of the same line of bubbles for recording votes in both the Democratic and American Independent Party Primaries on Non-Partisan (NP) ballots given to voters who were registered as Decline-to-State (DTS).

An examination of the precinct poll rosters, however, will likely offer the information needed to count virtually every ballot 100% accurately to the voter's intent. Bowen concurs.

"I've asked Los Angeles County to do a precinct-by-precinct reconciliation of the roster that is used when voters sign in," Bowen told KQED, following up with an example of how the procedure might work once the poll rosters are examined. Poll workers had been directed to cross out NP and write-in either DEM or AI next to the voters' names when they asked to vote in one of the open primaries.

"Let's say that there are five Decline-to-State voters in a particular precinct, and they all asked for Democratic Party ballots" Bowen explained, "This would not be surprising. I don't think we had a lot of people requesting American Independent Party ballots. If that happens, and in that same precinct you find the five Decline-to-State voters did not fill in the bubble [specifying which party's primary the ballot should be counted in], it is then safe to assume that they all intended to vote in the Democratic Primary because you didn't have anyone request an American Independent Party ballot in that precinct."

"I think if Los Angeles County does that," she continued, echoing the point we've been trying to make noise about since last week, "they may well be able to count many of these otherwise uncountable ballots."

But what of those precincts where there were Non-Partisan voters who chose to cross over and vote in the AI Primary? Though Bowen agrees with us, that the number of such ballots is likely incredibly small, she also points out an important provision of the California Election Code in her letter to Logan.

She writes that "Elections Code section 15154(c) does not permit the acceptance of a ballot in which the choice of the voter is impossible to determine," before quoting, as Logan did in his report to the County Supervisors, from the sub-section of that provision:

If for any reason the choice of the voter is impossible to determine, the vote for that office shall not be counted

In almost every case, however, if the poll books are examined, it will not be impossible to determine the choice of the voter.

Last week we pointed out several options which are available for counting the vast majority of the currently uncounted ballots accurately. In the case of precincts where there are no NP-AI voters specified in the poll roster, all NP ballots without a Dem or AI bubble filled in, but with a Presidential choice on them, can safely be presumed to be votes in the Democratic Primary, as Bowen confirmed. They can, and should, be counted immediately.

Where there may be one NP-AI voter or more recorded having voted at the precinct, but fewer correctly-bubbled NP-AI ballots, we had offered two different options last week which would have counted almost every single ballot accurately, while vastly reducing the current miscount rate (all of the currently uncounted votes have been miscounted as "undervotes," as of now, even though they were not undervotes) to almost 0%.

The first option was to simply count all such ballots as Democratic Primary votes, given the low number of NP-AI crossover voters over all. Though there would be a small error-rate with such a method, the electronic machines used to count ballots in L.A. County and elsewhere, routinely have an "acceptable" error-rate that is already as high or higher. The other option was to count them all as Democratic ballots, but then reduce each candidate's tally by a mathematically statistical proportion based on the number of NP-AI cross-over voters at the particular precinct.

However, given the law quoted by both Logan and Bowen, pointing out that "if for any reason the choice of the voter is impossible to determine, the vote for that office shall not be counted," we'll give the benefit of the doubt, and point you instead to a far simpler, and fail-proof suggestion sent to us by a BRAD BLOG reader just after we'd posted our article last week.

Her suggestion assures that every vote counted will be known to have been 100% accurately counted, beyond a shadow of any legitimate doubt:

You may have thought of this, but to count the votes in precincts where there are AI crossovers, you simply take the count for the democratic candidates and reduce EACH candidate's vote count by the number of AI voters. That will ensure that no AI vote goes to a Democrat.

Sure enough, though that plan would lead to a minuscule handful of potentially uncounted Democratic votes, the plan would otherwise work, and should be instituted, without delay, by acting Registrar Logan. Particularly as the deadline for final certification of results at the county level is quickly arriving. Results must be certified locally, and then sent to the SoS within 28 days of the election held on February 5th.

One last point worth reiterating, with all of the above in mind...

Article II of California's state constitution has a new provision added overwhelmingly by the voters via Proposition 43, on March 5, 2002, in response to the Presidential Election debacle in Florida.

The line added to the constitution by voters states clearly: "A voter who casts a vote in an election in accordance with the laws of this State shall have that vote counted."

No "laws of this state" were violated when voters failed to fill in the "Double Bubble" on those Non-Partisan ballots, as per the confusing and ridiculous scheme (not a law, or part of the state Election Code) courtesy of the Los Angeles County Registrar.

Furthermore, California's Election Code, Section 19001, states that all code requirements "shall be liberally construed so that the real will of the electors will not be defeated by any informality or failure to comply with all of the provisions of the law."

So Mr. Logan, enough excuses. It's time to count the damned votes. All 100,000 of them, if that's what needs to be done to ensure the voices of Los Angeles County voters are heard.

What say we put the voters first for a change?

Please support The BRAD BLOG's Fund Drive and our continuing coverage of your election system, as found nowhere else. Click here for a number of cool new collector's edition Premium products now available for new contributors!

Recent BRAD BLOG coverage of L.A. County's "Double Bubble" Trouble...