On December 21, a 3-judge U.S. District Court in Dallas ruled that Dallas County cannot continue to use vote-counting machines that “de-select” votes cast when a voter uses the straight-ticket device and also votes individually for a candidate from the same party. The case is Texas Democratic Party v Dallas County, 08-cv-2117. Here is the 10-page decision.
With eSlate voting machines, the kind of machines used by Dallas County, when a voter uses the straight-ticket device, and then also decides to cast an individual vote for the nominee of the same party, the machine assumes the voter doesn’t want to vote for that particular candidate and subtracts the voter’s vote for that one particular candidate. The machine tries to warn the voter that he or she has therefore not cast a vote in that particular race, but the warning is not clear. See this story.
The ruling does not say these machines violate the Constitution. Rather, it says that when Dallas County started using that type of machine in 1998, that was a voting procedure change and it should have been submitted to the U.S. Justice Department for pre-clearance. Texas is one of the states that cannot change its election laws or practices without permission from the Voting Rights Section of the U.S. Justice Department. The three judges on the case were Judge Jorge Solis, a Bush Sr. appointee, and Judges Reed O’Connor and Edward Prado, both Bush Jr. appointees.
The Texas Democratic Party has been fighting vote-counting systems with this characteristic since 2007. It filed an earlier lawsuit, Texas Democratic Party v Williams, in federal court in Austin, allleging that use of these machines violates the Constitution. However, U.S. District Court Judge Sam Sparks had ruled against the party on August 16, 2007, and the 5th circuit had upheld Sparks’ ruling on July 30, 2008. The Democratic Party had then taken that case to the U.S. Supreme Court, which had declined to hear it on January 12, 2009.
It isn’t likely that the Justice Department will approve this type of voting machine. In November 2008, in the Texas State House 105th district election, the vote had been: Republican Linda Harper-Brown 19,857; Democrat Bob Romano 19,838; Libertarian James Baird 1,061. Although election officials had argued that the number of voters who are confused by the machine is a small number of voters, the concrete example of this particular legislative race shows that even a small number of confused voters can be a serious problem.
Perhaps the Texas legislature will solve the problem by simply repealing the straight-ticket device, which is inherently confusing. In recent years, Illinois and Missouri have repealed it.
Straight party ticket voting is for lazy slack jaws. I will be happy when our state gets rid of it and voters will actually have to think about candidates. I am sure we’ll hear the belly-aching from Reps and Dems who will be inconvenienced to spend an additional 60 seconds in the ballot booth. My precinct votes 75% straight party vote. It could be chaos here!
Illinois’ politicians all cried and complained when straight party voting was eliminated. “It would create confusion” and would make it take longer to count votes.
Well, 15 years later, none of these “supposed” problems seems to have shown up.
train111
Straight-party voting is inherently confusing?! I would tend to agree with #1 that, if anything, it’s too simplified. (OTOH, as the first local Green Party candidate on the ballot in my county, I had to fight semi-official misinformation suggesting that our counting machines would invalidate mixed or split tickets. . . .)
The reason I characterize it as inherently confusing is that there are always confusing combinations of actions by voters. Voters will inevitably use the straight-ticket device but then also vote for individual candidates. North Carolina formerly ignored votes for individual candidates, for voters who had used the straight-ticket device for an opposing party. The 4th circuit said that was unconstitutional and forced North Carolina to honor the vote for the individual candidate. The other variation is here, in the Texas matter, where voters use the device and then vote for individual candidates of the same party.
There is also confusion with the device in Oklahoma, where the legislature mandates on straight-ticket device just for the presidential election, and another straight-ticket device for all the other partisan offices. It’s ludicrous to have such a device for just one office, but that is Oklahoma.
The Democratic Party doesn’t want to get rid of straight ticket voting. They would rather have an issue of victimization.
The whole idea of “emphasis” or “make sure” votes on paper ballots is to prevent election officials from marking a vote on a race that the voter skipped because he voted a straight ticket. It makes no sense to have a straight ticket device, if you still have to go down and vote for every office. It only makes sense if you want the opportunity to change votes.
When the legislature considered eliminating straight ticket voting, one Democratic senator posited a scenario where a voter had carefully considered each office and candidate on their own individual merits and chosen whom to vote for, and then rhetorically asked whether such a voter who had carefully considered each candidate individually shouldn’t be able to mark one box for the lot of them.
He also suggested that voters might get frustrated with delays due to voters requiring longer to vote. Implicit in this is that straight ticket voters are readily identifiable which infringes on their right to a secret ballot, and may result in voter intimidation. Imagine a somewhat shy first time voter who had carefully prepared to vote spending hours pondering each office, waiting in line next to an impatient individual who shifts their weight from foot to foot, muttering under his breath for voters in the voting booths to hurry up and just mark a straight ticket.
One county election official testified that if straight ticket voting were eliminated he would need to provision more voting machines. Implicit is that he considers the share of straight ticket voting in a precinct when allocating voting machines, since it varies geographically and is racially correlated.
If he didn’t, then voters in certain areas where voters were less likely to vote a straight ticket would face delays. If he did, then voters in other areas might be pressured to vote a straight ticket, or overlook races to which the straight ticket did not apply, such as non-partisan offices or special elections.
In 2008 in Harris County, there was a special election for a state senate seat, so that the straight ticket did not apply. Even though the race was placed first on the ballot, above the straight ticket and presidential race, there was a 16% undervote in the hotly contested race for an open seat. In contested legislative races, the undervote was more typically 4 or 5%. Even in cases where a candidate was unopposed, the undervote was typically around 20%.
Non-partisan races were also overlooked. In one school district at the bottom of the ballot, 58% of voters did not vote.
Whether a voter voted or not in a race is a combination of a straight ticket vote and marks in the individual race. But there can be two adjacent races, one with Republican and Libertarian candidates and the next with Democratic, Republican, and Libertarian candidates. If someone votes a Democratic straight ticket, they haven’t voted for one race, but have in the other. Should feedback occur warning that one race was not voted in? And a voter may interpret feedback as condemnation or that the right to a secret ballot is compromised. Did you really mean to not vote for the powerful County Judge? Or what if you vote a straight ticket but want to actively not vote for anyone in a single race?
With an interactive device, you may end up with different interpretations based on the sequence that a voter voted.
It is interesting that the district court decision kept referring to the pre-1998 system as both paper ballot and punch card. How likely is that a “emphasis” voter would go through a completed ballot and check that all his chads weren’t left hanging.