Guest Post: Ned Foley on Alaska and the potential for litigation

Ned Foley of the Moritz School of Law at the Ohio State University weighs in on our recent discussions about Alaska.  For those who don’t know, Ned is one of a few experts on the legal and political wrangling in Coleman vs. Franken, and I appreciate his willingness to muse on this issue. Crossposted at

I haven’t looked into the details of the Alaska law on this–at least not yet–and let’s hope no situation arises where the outcome matters on how a dispute over write-in ballots is resolved.  But what worries me most in what I have seen as a result of the previous Election Update posts is that apparent discrepancy between the text of the statute and the view of Alaska’s Elections Director, as reported by Slate and the Anchorage Daily News.

The statute says that, to be conducted, a write-in ballot must meet this requirement regarding the write-in candidate’s name: “the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.”  This statutory language is odd.  It appears to permit only the candidate’s “last name” to suffice, and to disqualify any mistakes regarding a candidate’s first name.  For example, “Mark Murkowki” or “Jane Murkowski” would be rejected because neither is consistent with Lisa Murkowski.

But what if the ballot has “Lis Murkowski” with the “a” missing from Lisa?  Or “Liza Murkowski,” with a “z” instead of an “s”?  That’s not “as [the name] appears on the write-in declaration of candidacy.”  Sure, despite the discrepancy, we all know the voter’s intent in this situation.  But Alaska’s statute has an important extra provision: “The rules set out in this section are mandatory and there are no exceptions to them.  A ballot may not be counted unless marked in compliance with these rules.”  This provision would seem to prohibit judges and election officials from giving leeway to voters in counting ballots based on discerning evident voter intent despite minor deviations from the rules.

(By the way, on the specific issue raised by Paul in response to Thad, it would seem that this statutory provision indicates that a ballot should NOT be counted if the oval is completely unmarked even if the name is correct. The statute says that write-in ballot is counted if both “the oval is filled in” and the name is correctly included.  While there may are different ways to mark the oval validly, as Paul observes, not marking it at all would seem to fall outside of statutory compliance, and the provision says that no ballot may be counted unless it complies.)

Of course, this “mandatory compliance” provision doesn’t completely resolve all statutory doubt: maybe writing “Liza Murkowski”, despite the mistaken “z” for “s” is close enough to count as being the same as the name “as it appears on the write-in declaration of candidacy”.  The argument is that Lisa and Liza really are the same name, at least compared to Mark or Jane. If so, then the voter would have complied with the relevant mandatory rule, and there would be no need to make an exception.   But the problem with this sort of argument is that this key provision seems to tell judges and officials to err on the side enforcing the counting rule strictly, which would mean that “Liz” and “Liza” really aren’t the same as “Lisa” (despite obvious voter intent).

But the Alaska Elections Director was quoted as saying that “Lisa M” would be acceptable even if “Lisa” alone wouldn’t be enough.  That position seems inconsistent with the statute.  “M” is not the same as the candidate’s last name, which is required.

What I fear is litigation based on an argument that voters relied on the public pronouncements of the state’s Election Director, which appeared in the leading newspaper in the state’s largest city. Even if the Elections Director is flatly wrong under the statute, a court might accept a “due process” argument based on voter reliance.  There is some case law around the country to support that kind of argument.  (I haven’t looked at Alaska or Ninth Circuit precedents specifically on this point.)  That kind of reliance argument, by the way, did not play a role in Coleman v. Franken, because there was no claim that voters were relying on the possibility that election officials would engage in an excessively lenient interpretation of the rules for submitting absentee ballots in Minnesota.

More recent news stories from Alaska indicate some effort to clarify the situation:

Let’s hope that the issue is sufficiently clarified that it does not become a practical problem.   Or that the election is not close enough for the issue to make a difference.

Gronke on Hall on Alaska

Thad Hall notes at Election Updates the Alaska statute regarding state law on rules for counting ballots, including write-ins.

I don’t agree with Thad, however, that the key question here is whether the oval is filled in properly. The law specifies that nearly any mark (“making “X” marks, diagonal, horizontal, or vertical marks, solid marks, stars, circles, asterisks, checks, or plus signs that are clearly spaced in the oval opposite the name of the candidate”) in the oval will count.

I have two reactions to Thad’s post. First, anyone taking the time to write in some variant of Lisa Murkowski would be likely to be able to make a mark in the oval (and one expects that the Murkowski campaign will go to great lengths to educate voters about the procedure).

Second, after Franken v. Coleman, can we actually be sure how a state or federal court will determine voter intent if there is a write-in but no mark in the oval? Maybe I can convince Ned Foley to weigh in…

2010 early voting calendar

Update: new, improved, and available in PDF form. We’ve also provided a link to our Excel dataset. Check it out

We’ve just posted our early and absentee voting calendar for the 2010 general election. As Paul has noted, the election has already arrived in many states, with absentee ballots being delivered now in nearly half of America’s states.

The calendar itself is a work-in-progress: if you notice any glitches or errors – or just have comments – we’d love to hear from you.

It’s not readily printable yet – short of taking a screen capture – but we’ll be producing a true hard copy version as soon as possible, and that will be available at the same address.

Welcome to election “day”

We are working on an update to our 2008 early voting calendar.

The 2010 version should be available at soon, but already, we’ve discovered a substantial number of states who have moved up their no-excuse absentee mailing timeline to correspond to the 45 day MOVE ballot transit requirement.

As a consequence, election “day” starts on Monday for millions of American. And about a week later, almost every state with significant numbers of no-excuse voters will have mailed out ballots. Pretty amazing. 

Crossposted at

DC learns what it means to have a week-long “election day”

This story in the Post is not a surprise to anyone who follows early voting.

All I can say to the Fenty and Gray forces is that early voting, in as much as we can generalize from other races in other states and localities, is more likely to reshuffle the electorate than change the electorate.

The fact that early voting is higher in Fenty strongholds may mean that Fenty has a better funded, better organized get out the vote operation.  But it may also mean that areas where Fenty has more support are areas with voters who are, on average, whiter, better educated, and have higher incomes.

One important difference, however, is that this is a local race, and we have little empirical data on the turnout effects of early voting in local races.  Many of us–me included–believe the impact is much greater in this contests.  In addition, this is a relatively “high profile” contest, which will should only increase the turnout impact of early voting.

The reports of confrontations at the early voting stations is a cause for concern.  I wonder what election day will bring.  The next week should be interesting.  Hope my friends Alysoun and Rokey at the DC office are hanging on.  It will be a busy week.

Crossposted at

Outstanding ballots in Alaska

As I worried last week, the Miller camp has leveled charges of “ballot counting monkey business” in the closely contested Alaskan GOP Senate primary.

The Anchorage Daily News now tallies 23,472 uncounted or “question” ballots.

In another interesting twist, because the list of names of who requested an absentee ballot are public records (as in all states), Miller is also charging that voters who requested absentee ballots are being contacted and asked about their vote.

I am not familiar enough with how the system works in Alaska, but I would not be surprised to learn that candidates are able to get a list of the names of registered voters whose ballots had been counted up to any particular day. This means that a campaign can target specifically those absentee voters who ballots were requested but not yet counted.

This may be another unanticipated consequence of the postmark law.

More on Alaska and Australia: Is there a security issue in postmark states?

A colleague in the elections community sent along this observation, which is pertinent to any state that requires ballots only be postmarked, but not delivered by Election Day.

They are sitting in post offices or they’re in postal bags somewhere.

What if somebody, who already knows the Murkowski/Miller race is close, wanted to try and affect the outcome of the election and decided not to deliver a batch of ballots or discarded them?

Allowing timely postmarked ballots adds a security threat to the election when there are ballots out there floating around and elections officials don’t even know where they are. It also adds an extra difficult issue of what to do when the postmark is unreadable or is totally missing.

Check your next stack of mail. There are almost always some items in there missing a postmark.

Guest Post: Todd Donovan on IRV and the slow count in Australia

Todd Donovan of Western Washington University writes to me about alternative voting (or IRV) and how this can be impacted by large numbers of ballots being counted after Election Day:

The long count of votes in Australia is somewhat complicated by the Alternate Vote (AV) system used there.

Under AV (known as Instant Runoff Voting in the US), voters rank their preferences for all House of Representative candidates on their ballot.  In the initial round of vote counts on election night only “ordinary votes” (cast at the polling place) are processed.  The candidate with the least first preference votes is eliminated. A second round of counting then proceeds, with the eliminated candidate’s ballots being examined so that her supporters’ second preference votes may be transferred to the remaining candidates. These transfers continue until someone emerges with a majority.

But as pre-poll, postal, absentee, and provisional ballots are received after election day, the process is ran again. Since the final count can be contingent on the order that lower-ranking candidates are eliminated, everything is ran again from scratch – even in districts where a candidate had reached a majority in previous counts. In the vast majority of districts, the leading candidate on election night will win the seat.  In a seat where the margin is razor thin, additional ballots and new preference transfers can cause things to bounce around a bit.

Cross-posted at Election Updates.

The long count in Oz

I spent the end of last week in Bellingham, WA (a wonderful city by the way–but keep it a secret!) and experienced the impact of a “slow count” firsthand. At least in Washington, the vote totals are updated daily, and for the press, this seems to provide an ongoing source of breathless coverage, as pundits (my friend Todd Donovan, a professor at Western Washington among them) speculate about the remaining ballots.

But much of our conversation as the week went on centered on the Australian election.

Nearly a week after polling day, as many as two million “special” ballots remain uncounted in the Australian federal election, and the balance of party control remains in question. While the parties continue to maneuver over potential governing coalitions, 14% of ballots cast have yet to be counted.

How did Australia get into this situation?

Observers of elections in the United States have lots of experience with slow counts.

In Alaska’s Senate primary battle between Joe Miller and incumbent Lisa Murkowski, Miller currently holds a 1,900 vote lead with 10,000 absentee votes left to be counted. According to the Alaska Secretary of State’s website, “early” and “in-person absentee” ballots are counted “from election night through up to 15 days after the election.” Unlike many other American jurisdictions, Alaska is a “postmark state”: so long as absentee ballots are mailed on or before Election Day, they will be counted up to the 10th day after the election. The slow count in Alaska is exacerbated by another provision in state law that early in person votes cannot start to be processed until 8 pm on Election Night.

So too in Washington State, voters only need postmark their ballot by Election Day. Election outcomes can play out over a period of several weeks while ballots trickle in to local offices and are processed and counted. The Gregoire/Rossi vote count in Washington’s very close Governor’s race in 2004 was a good example, but ongoing coverage of close races in the state continue to provide examples.

California regularly has slow counts for a different reason. The state allows absentee ballots to be returned to any precinct in the county on Election Day. (121,274 ballots were returned in LA County’s 2008 general election in this way.) Obviously, these ballots cannot be processed — signatures verified, envelopes opened, voter intent determined, and votes counted — until well after the polls close.

So where is Australia? It turns out that, in some ways, Australia has adopted the worst of all rules — at least in terms of determining an election outcome on a timely basis. Like many things in Australia, according to Todd, the country’s election law is a fusion of America and Britain, with a bit of Australasian flair.

The various categories of non-precinct-place voting in Australia are wide-ranging:

  • An absent voter in Australia votes on Election Day, but outside of her home division.
  • An interstate voter casts a ballot outside his home state, but on Election Day. (These citizens can cast a ballot at an ‘interstate voting center’, but we’re not sure how these ballots are counted (or transmitted).)
  • A pre-poll vote is what Americans would understand as an early in-person vote. The ballot is cast in a voter’s home division, before Election Day, at an early voting center or any divisional office.[fn]Both pre-poll and postal voters need to satisfy one of a number of conditions, but these are relatively lax. For example, the conditions include “being 8km away from your polling place on Election Day,” or “traveling or unable to leave work.” A similar condition applies to voters in Virginia who work in DC and it has resulted in a notable spike in “excuse required” absentee voting in that state.[/fn]
  • A postal vote would be understood by Americans to be an absentee ballot. Like Alaska and Washington, a ballot need only be postmarked, not necessarily delivered, by Election Day.

In Australia, these non-precinct-place ballots are known as “declaration votes”. Unlike regular polling-place votes, the Australian Electoral Commission (AEC) is expressly forbidden from even opening the envelopes of declaration votes until after Election Day.

So, like Alaska, California, and other jurisdictions before it, Australia now finds that the outcome of its election hinges on a slow and methodical count of absentee ballots. The diverse voting methods and lenient policies are doubtless a boon for many voters, but as with any aspect of electoral administration, there’s a cost to be borne. In this case, the price is a slow count.

This is not a problem, per se. Indeed, ensuring the widest possible franchise in a country with mandatory voting is a laudable goal. But it is something for election administrators and policymakers to pay heed to. Still, in Australia’s case, the Electoral Commission might look to the example of Oregon (a state with a great deal of practical experience in this area), and allow officials to open, verify, and process — though not actually count — ballots before Election Day.

Crossposted at Election Updates.

Limiting over-votes in New York state

Apologies for being a little late on this one, but it is worth linking. As New York begins to move from older voting technology (lever machines) to modern optical-scan machines, NYU’s Brennan Center is drawing attention to a potential programming problem:

Under the new system voters will fill out a paper ballot and then “scan” them into an electronic machine. The State and City Boards have set up the new machines so that they do not give voters adequate warning of “overvotes”– ballots that cannot be read in full because the machine reads the ballot as having too many votes for a particular contest. Instead of returning the ballot, as is done in many other jurisdictions, in New York the ballot will be retained, and a computer screen with present the voter with a confusing message that includes a green “cast” button. Voters are not told that if they press the green button, their vote will not count.

What’s striking about this problem is that it is easily avoidable. Election jurisdictions are able to control whether the machine “warns” voters, or not. It’s an question of programming, not a technological limitation. Indeed, the Center notes:

The only other time these voting machines have been used in the same way in a major election (13 counties in Florida in 2008), they produced overvote rates almost 14 times higher than expected, with thousands of votes for the presidential contest rejected – in comparison to almost no votes rejected in the 36 counties that automatically returned the ballots.