| There is an ongoing debate over how to count the so called "emphasis votes" in the HD-105 recount in Irving in the uncalled race between incumbent Republican Linda Harper-Brown and Democrat Bob Romano. Harper-Brown currently leads by 20 votes.
At issue, a recent ruling/instruction by the Secretary of State's Elections Division that Democrats claim contradicts an earlier policy. For review, Ann McGeehan, Director of Elections, posted the following notice to Election Clerks on October 31 which details how this type of vote should be counted.
The following are quick reference rules for counting a ballot:
- An individual mark, or "cross-over voting," always overrides the straight-party mark. Individual marks include write-in votes.
- An individual vote for a candidate in the same column as a straight-party mark is regarded as an "emphasis" vote and does not invalidate the straight-party mark. If the only individual votes are emphasis votes, the vote is tallied the same as a straight-party vote without regard to the emphasis votes.
- Individual marks for more than one candidate in the same race constitutes an overvote, and neither candidate receives a vote. (This is the rule for general election for state and county officers, when only one vote is allowed in each race. In certain local elections, more votes are allowed, e.g., at-large voting.)
Bruce Sherbet, Dallas County Elections administrator posed the following question for the recount.
"In a recount, if a DRE image shows that the voter cast a straight party vote by there is no vote for the candidate of that same party (indicating it was deselected) does the straight party vote override the deselection (thus giving a vote to the candidate that was deselected)?"
Ann McGeehan of the Secretary of State's division responded in this letter (PDF).
It continues to reference a prior court ruling from 2007 between the TDP and Roger Williams where the court rejected arguments that "absent votes" on electronic eSlate machines (which would be the equivalent "emphasis voting" at issue in the HD-105 recount) could not be summarily judged and counted as emphasis votes because "voters engaging in such behavior were equally or even more likely intending to make no selection in a particular race". The 5th Circuit US Court of Appeals upheld that ruling.
While I'm in favor counting every vote and agree that it sounds like the SOS is reversing an earlier opinion, I hate to say that I actually agree with the SOS on this issue. The problem is the difference of how emphasis votes are marked on electronic ballots versus paper ballots.
Remember all the hoopla about the potentially malicious email that circulated telling people that to vote for Obama they needed to vote straight party Democrat and then also "emphasize" their vote by selecting him again? And remember how everyone tried to correct that rumor by mentioning that selecting Obama again actually deselected him from your ballot? That's all correct- for electronic voting machines which many Texas voters use and nearly all the urban counties.
Problem is, if you mark an "emphasis vote" on a paper ballot that is counted by hand or scanned in, that type of emphasis vote DOES NOT discard your vote for them. That's exactly what the original Oct 31 SOS advisory was referring to.
The problem is that on paper ballots an emphasis vote is a proactive mark which is plainly visible in a recount with no question of the intent of the voter. Why? Because on paper, a mark made for a straight party vote doesn't not automatically make a mark or selection for every candidate of that party on the ballot. It can't, it's paper. Therefore, making an emphasis vote by marking a candidate again visually reinforces a vote for that candidate on a paper ballot. In a recount, this would be obvious in reviewing the intent of the voter, separate from how a machine may have scanned the ballot.
BUT on an electronic ballot, like that used in the HD-105 race (specifically the iVotronic machine made by ES&S- view here), selecting the straight ticket option automatically fills in all candidates of that party on the screen with an X. An emphasis vote would occur by someone selecting a candidate who already had an X by their name. This deselects the candidate on that ballot and does so in the exact same way as if the voter wanted to cast a straight ticket vote but not vote for any candidate in a specific race (for whatever reason).
Because the electronic vote leaves no mark by "emphasizing" the vote which is the same end result as no mark made by choosing to skip the race it is impossible to determine the intent of the voter barring some other clear pattern on the ballot.
In more simple terms, on a paper ballot you "opt in" to the straight ticket vote and additional "opt ins" appears as clear intents to vote for that candidate. On the iVotronic, your "opt in" of the straight ticket immediately (and visually) "opts you in" for all of that party's candidates making any additional "opt in" emphasis votes to appear the same as "opted out" intended votes.
Therefore, the SOS's ruling appears contradictory only because electronic voting machines create a contradictory environment for casting and counting the vote. Which says more about the stupidity of electronic voting machines and their ballot design than the SOS.
Update: Phillip may be providing another perspective on this in the morning. I should make it clear the obviously I favor a Romano win, and if there are some additional fact to this story that alter the landscape, I very much want to hear that perspective. |
