REPORT
I. INTRODUCTION
This resolution urges adoption of counting standards for paper and optical scan ballots when it is necessary to hand count them consistent with the American Bar Association’s (ABA) mission and goal to “advance the rule of law at home and throughout the world.” A clear statement from the ABA on the issue of statewide ballot-counting standards is needed in order to ensure that 16 years after Bush v. Gore such standards are in place as soon as practicable.
The ABA recognizes that few states and territories, hereafter states, have clear statewide or territorial (statewide) standards in law or regulation, and that a few states have nothing in law. Only a hand-full of states have pre-determined standards governing how a ballot will be hand counted in the event of a recount or contest. A significant number of states have an unclear standard that may be interpreted differently across the state for ballots with the same marks. These states generally rely on the “voter’s intent” -- without more -- as the standard to be used to hand count ballots. This standard is not compatible with a clear, statewide standard for counting optical scan or other ballots in situations requiring a hand count. The ABA urges states with a general “voter intent” standard, as well as those states without any statewide standard in place, to adopt laws and regulations consistent with this resolution. The adoption and consistent enforcement of uniform standards will promote fair and transparent elections and avoid the arbitrary interpretation of ballots during a formal canvass, recount or contest of an election.
II. BRIEF HISTORY OF THE NEED FOR STATEWIDE BALLOT COUNTING STANDARDS
In Bush v. Gore, 531 US 98 (2000), decided December 11, 2000, the Supreme Court, by a 7-2 decision, held that standard-less manual recounts violate the Fourteenth Amendment’s Equal Protection Clause. As one commentator describes the case:
Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county.
The Help America Vote Act of 2002 (HAVA) was passed in 2002 in response to the 2000 presidential elections. HAVA was to assist with improving voting systems and voter access. It established minimum election administration standards for states and units of local government with responsibility for the administration of federal elections.
Among other state mandates, HAVA required that states develop uniform definitions of what constitutes a vote in Section 301(a)(6) of the Act:
Each State shall adopt uniform and nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting system used in the State.
Despite the Supreme Court’s decision in Bush v. Gore, and the mandate in HAVA, many states have failed to address this constitutional equal protection concern. Pre-existing uniform statewide standards not only promote fair and transparent elections, and avoid arbitrary interpretation of ballots once an election is finished and decisions about counting can be influenced by knowing who will benefit given a certain interpretation, but they are mandated by federal law, and the US Constitution.
This resolution does not take a position on individual state “voter intent” laws, rather it urges them to implement rules, regulations and policies that clarify such standards prior to the general election. Voter intent is one common ballot-counting standard found in many state laws, but there are states with other standards for ballot counting, such as those that require all ballots to conform to the directions on the ballot and be read by voting machines, and other states that have statewide direct record electronic (DRE) equipment and, therefore, have not felt the need for statewide paper ballot counting standards. Any statewide standard that is clear and ensures that all voters who mark their ballot in the same manner are counted (or not) to ensure equal protection is the focus of this resolution.
States such as Oregon, Washington and Colorado have virtually all voters in the state vote-by-mail, which usually means a paper ballot. Additionally, voters may vote by paper when being assisted at “curb-side” stations. Other voters may vote by mail under the Uniform Overseas Assistance Voting Act (UOCAVA) which means that all states will have at least some hand-count ballots.
Some states suggest that a voter’s intent should be readily ascertainable from ballots that are marked and cast in compliance with the applicable balloting instructions. A non-conforming ballot, (i.e., one that is marked in a manner that disregards the balloting instructions and prevents the ballot from being tabulated by mechanical means) may not be counted. If the ballot is non-conforming due to a voter’s choice in how it is marked, this is clear policy. Even in such states, however, some consideration needs be given to ballots that cannot be machine-read due to situations not caused by the voter, such as ballots damaged in transit through the US mail, or ballots that are damaged once in custody of local election officials. Additionally, is the marking through a name by “X” or a line indicative of an intent to support, or an intent not to support the candidate whose name has been so marked under statewide standards? Or, are comments, whether positive or negative, that are written on a ballot on or near a slate of candidates, a specific candidate or text of a referendum to be regarded in determining the intent of the voter if such comments appear to clearly indicate intent? In such situations, guidance on how to handle ballots when they cannot be counted by voting equipment must be clear if the right to equal protection is to be given meaning. The confusion is evident by recalling the media events following the November 2000 Florida presidential vote.
There are states that have state law indicating that ballots are to be counted if the voter’s intent is clear and that have gone on to further set out statewide guidance as to what that policy means. Virginia, for example, developed such a document in 2001, and has subsequently amended it several times, to incorporate new examples. It is now entitled, “Ballot Examples - Hand Counting Printed Ballots for Virginia Elections or Recounts,” available at http://elections.virginia.gov/Files/ElectionAdministration/ElectionLaw/ExamplesforHandcounting.pdf. This guidance document uses pictorial examples of marked ballots based on actual examples election officials have seen, and indicates which kinds of markings should be counted, and which cannot be counted, in conformity with state law. Oklahoma’s current procedure for hand-counting ballots is located in Section 230:45-5-12 in the Oklahoma Administrative Code, online at www.sos.ok.gov/oar. The rules for counting, which contain descriptions of valid and invalid markings, are located in 230:45-5-19. Colorado addresses the issues through the Colorado Secretary of State Election Rules [8 CCR 1505-1], http://www.sos.state.co.us/pubs/rule_making/CurrentRules/8CCR1505-1Elections.html in Rule 18. Uniform Ballot Counting Standards. These examples demonstrate appropriate ways in which several states have addressed the issue. As stated above, however, the majority of states do not have clear pre-determined standards. Illustrating the importance and ease of understanding rules that are in place, the following select examples from Virginia and Colorado are provided below:
