Concerns About New York's New Voting Machines

Study argues that new voting systems purchased in New York could lead to significantly higher rates of spoiled ballots

The ES&S DS200 (to be used in New York City, among other jurisdictions) has an unusual feature: unlike most optical scan systems, if a voter makes a mistake (voting for two candidates when only entitled to vote for one or not voting for a candidate or issue), the machine doesn't "spit" the ballot out and direct the voter to correct the mistake. Instead, it keeps the ballot and gives the voter the opportunity to either cast the ballot as is (in which case, the mistake will remain, and the voter's vote in that contest not counted) or request the ballot back, to make a correction.

We can imagine reasons why election officials may want systems that keep the ballot rather than automatically sending them back to the voter for correction. Automatically sending the ballot back would likely slow the process down (every time a voter made a mistake, the machine would send back the ballot, the voter would have to review, and all the while other people would be waiting on line), and there are legitimate concerns about voter privacy (will other voters or poll workers see the filled out ballot when it comes back out of the machine?).

But in a state like New York, where voters are used to machines that won't allow them to overvote (it is impossible to vote for more candidates than you are allowed to vote for on lever machines), where there is fusion voting (the same candidate listed twice or three times under different parties in the same contest), and there are very often contests where voters can choose up to two or three or four candidates, there is reason to be concerned that a significant number of people will overvote ballots, and as a result, won't have their votes counted. This is particularly worrisome because, as a Brennan Center analysis has shown, New York's current requirements for what must be on a paper ballot makes them more confusing than necessary to use.

A recent study out of Florida, confirms that this is a potentially serious concern. The authors of this study argue that counties which used the ES&S DS200 had an overvote rate on Election Day 2008 that was as much as 18 times (!) that of the systems used in other Florida counties (if a ballot is overvoted, it will not be counted).

Paul Malischke, a voting rights advocate in Wisconsin, says his state conditioned its purchase of the DS200 on a promise from ES&S that the machine be reconfigured to immediately return a ballot to the voter if it detects an overvote.

It's not clear that this is possible in New York, and no doubt, given their privacy and voting time concerns, many election officials would be opposed to such a reconfiguration. But at the very least, the State Board and legislature should be looking at this issue and figuring a way to address it.

The Brennan Center, Usability Professionals Association, Center for Plain Language and Design for Democracy, urges the State Board to conduct usability testing to figure out how best to educate voters and poll workers about this potential problem, and to figure out what changes to the state's ballot layout and design requirements would make it less likely that people will overvote.

In a close election, as Florida and a few other states could tell New York, large numbers of overvotes can be an election nightmare, resulting in recount litigation, and shaking the faith of the public in their voting systems.

The State Board and State legislature should be taking action, soon, to address this problem. It should be addressed before these machines are deployed statewide, not after a close election, when the problem could lead to a post-election meltdown.

The fastest way to handle the overvote situation is to send it back to the voter immediately. Then that voter can step aside and be counseled by a pollworker, while other voters can use the tabulator. This method has worked well in Wisconsin for over a decade with the Optech Eagle optical scan tabulator.

The way the DS200 is configured for New York, when it detects an overvote, the ballot is held by the machine. No one else can insert his or her ballot into the tabulator while the voter is deciphering the error message on the screen. If there are other people waiting behind the voter, there will be pressure for the voter to make a hurried decision without understanding the consequences. Also, the voter must make this decision before the voter has a chance to review the ballot, since it is out of view in the top of the machine!

When returned to the voter, how will the correction be done, crossed out or if many, voided and then the voter receives a new ballot?

For undervotes, there must be a clear message that allows the voter to indicate they did not want to vote in those races or for that issue and if they did, to return the ballot showing where the undervote needs to be corrected.

Michael H. Drucker
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