The Brennan Center for Justice at NYU School of Law is pleased to share its latest publication Design Deficiencies and Lost Votes. It has now been over a decade since the 2000 Election debacle that brought us Bush v. Gore. In that election, thousands of Floridians accidentally selected more than one candidate for President; their votes didn’t count. Our new study demonstrates that the problem hasn’t entirely disappeared. We find that tens of thousands of voters in New York did not have their votes counted in 2010 because the machines read their choices as “overvotes” – the invalid selection of more than one candidate.
As mandated by federal law, when a voter marks more than the allowable candidates, voting machines must warn the voter and give her an opportunity to correct her ballot. But the warning message on New York’s voting machines used complex election jargon and gave voters misleading cues about their options. The study estimates that if no revisions were made to the message, over 100,000 votes in New York could be lost in the 2012 election.
Our study found that people of color were disproportionately likely to lose their vote as a result of the confusing overvote message. One percent of black and Hispanic voters in New York City did not have their votes for Governor counted. And in two predominantly Hispanic election districts in the South Bronx, nearly 40% of all votes were not counted.
Fortunately, the New York State Board of Elections has agreed to adopt a better overvote warning in time for the 2012 election. But as the report makes clear, there is more to be done. To identify areas with high overvote rates, election officials should report election results by precinct that include the total number of overvotes. When problems are discovered, election officials should be required and allowed 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 an overvote due to a machine error. Finally, 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 highlighted in this report should serve as models for further improvements across the country.