New Planned Method for Counting Uncounted Non-Partisan Crossover Ballots, as Proposed by Dean Logan in Response to Sec. of State's Request, Will Needlessly Disenfranchise Thousands of Legal Voters
SoS Bowen Must Intervene Again to Assure All Votes That Can be Counted ARE Counted...
By Brad Friedman on 2/26/2008, 10:20pm PT  

[UPDATED 2/27/08 2:00pm PT, after speaking with Bowen's office about this. The update, which includes her current response to Logan's proposed counting scheme, is posted at the bottom of this report.]

I hate to counter the adulation of so many of the good groups out there claiming "victory" and "a happy ending" today in the "Double Bubble" ballot dispute in Los Angeles County, but I must. The "victory" they are now referring to, with the best of intentions, as "Great news!" is much less than it appears. Though if you don't look closely, it might otherwise look like a "victory." Unfortunately, it isn't.

Unless something changes, and quickly, Los Angeles County's acting Registrar of Voters Dean Logan is preparing to disenfranchise thousands of voters who cast legal ballots in the Super Tuesday Democratic primary election.

In the 3-page letter [PDF] sent by Logan to CA Sec. of State Debra Bowen yesterday, the recently-arrived, but still-befuddled, county clerk details how he now plans to potentially toss out thousands of votes, while inappropriately awarding disproportionate votes in favor of only some candidates, in response to the "Double Bubble" ballot debacle reported by The BRAD BLOG (most recently here), in great detail previously...

Some weeks ago Logan asserted it would be "impossible to determine" the intent of tens of thousands of ballots cast in the state's open Democratic primary in a way that would ensure voter intent was recorded accurately. Thankfully, he has now amended his position, after a directive from Bowen, claiming he can count some, but not all of them. To carry out his latest ill-conceived scheme, he has now devised a ridiculous method to count what he inaccurately describes as, "all votes where the voter intent can be reasonably and legally determined."

That's a small step up from his previous unsupportable position, but still seriously flawed and still failing the voters of the country's most populous county.

In addition to still disenfranchising thousands of voters, and inaccurately offering an undeserved margin of victory to some candidates in various precincts through his planned scheme, he is also setting a horrible precedent for counting ballots --- or in this case, not counting them --- in the state in the future. That, even though there is a perfectly accurate and simple way to count almost every single ballot cast in the election...if Logan bothers to do so.

What happened, in brief...

In short, anywhere from a conservative 50,000 to 100,000 ballots legally cast in the open Democratic Primary by Non-Partisan (NP, sometimes known as Decline-to-State or DTS) voters could not be counted accurately by the optical-scan counting machines in L.A. County after the election. The reason is that, due to a ridiculous scheme put in place by LA's previous Registrar, who quit just prior to the election, NP voters who chose to "cross over" and vote in either the open Dem or American Independent Party primaries had to fill in a second bubble on the paper ballot specifying which primary their NP ballot should be counted in.

The instructions to fill in that second bubble, in addition to the voter's Presidential selection were unclear at best. The result is thousands of ballots which contain votes for a Presidential Candidate, but where no party preference (DEM or AI) is specified.

Further compounding the problem is that the ballot design was such that the bubbles numbered from #8 through #10 were used to select candidates from both the DEM and AI primary, depending on which party's primary the NP voter intended to vote in. Bubbles #11 through #15 were for Dem candidates only, since that party had more candidates on their primary ballot than the AI party did.

The type of ballot card used in L.A. County has only bubbles/ovals on it, no candidate names, to be filled in by the voter after the ballot card is placed into the party-appropriate ballot template/booklet (see graphic at left). So it's impossible to determine --- by looking at the ballot alone --- for which party's primary, a Presidential vote was meant to be cast, unless the "Double Bubble" has been filled in.

However, as I described on February 14th, almost every single ballot can be counted accurately in accord with the voter's intent, as required by CA state law, if the Registrar bothers to examine the poll rosters which will reveal how many NP voters chose to cross over and vote in either the Dem or AI primaries in each precinct.

My description of that method of determining nearly all of the currently uncounted/miscounted ballots was followed by a letter from Bowen to Logan, requesting that he inspect the poll books immediately in order to determine the data needed to count as many of the ballots as possible.

He has now done so.

Logan's bad new plan...

Today's letter from Logan announces that he plans to:

a) Count all unbubbled NP ballots with a Presidential selection on them as Democratic votes, in precincts where the pollbooks show no NP-AI ballots were cast.
b) Count all unbubbled NP ballots with a Presidential selection in bubbles #11 through #15 as Democratic votes, and discard all votes recorded in the #8 through #10 bubbles, if any NP-AI crossover votes are noted in the pollbooks as having been cast in the precinct.

Logan's plan to discard thousands of votes cast in the #8 to #10 bubbles (candidate names were rotated at the various precincts) is ridiculous, unnecessary and unfair to candidates who happen to be in those slots on the ballot. The ill-conceived plan will also lead to a lopsided result in favor of candidates lucky enough to have been listed on the ballot in the #11 to #15 bubbles in any particular precinct.

Rather, as we suggested previously, due to the small number of NP-AI votes cast overall in the election, nearly every unbubbled NP ballot with a Presidential selection on it can be counted accurately if all such ballots are first counted as Democratic votes, with the number of unaccounted for NP-AI votes in any precinct then being subtracted from each candidate's total in the precinct.

In that way, we can be assured that every vote that can be counted, has been counted, and has been counted accurately, as the voter intended.

As Logan currently plans to count the votes, a lopsided result will occur and, additionally, thousands of ballots will have been needlessly --- and illegally --- discarded and uncounted.

What's Wrong with Logan's Plan...

Consider the following imaginary L.A. County precinct to help understand what is admittedly a confusing process, thanks to former Registrar of Voters Conny McCormack. The solution, however, to the mess she created (she knew that some 40% of NP ballots had gone similarly uncounted in three previous elections, but didn't bother to change the ballot design), is thankfully a simple one.

Sample L.A. County Precinct

NP-Dem voters according to the poll roster: 100
NP-AI voters according to the poll roster: 5

NP ballots with a Presidential candidate selected and the party bubble filled in as...
Dem: 51
AI: 4

Total uncounted/unbubbled NP ballots with a Presidential candidate selected: 50

From subsets of...
Unaccounted for (uncounted) NP-Dem ballots: 49
Unaccounted for (uncounted) NP-AI ballots: 1

To assure that as many votes as possible are counted accurately --- without legal question and to the accurate intent of the voters in our sample precinct --- Logan simply needs to count all 50 of the uncounted ballots as Dem votes, and then subtract 1 vote from each Dem candidate to assure that none of them received a vote they were not entitled to.

A small number of ballots, under this method, would not be counted as cast, but, given the disproportionately huge number of NP-Dem ballots versus the relatively tiny number of NP-AI ballots, the resulting uncounted votes would likely be less than the "acceptable" error-rate of L.A.'s current optical-scan counting machines anyway.

By contrast, according to Logan's currently planned method, a large percentage of those 50 ballots, in our sample precinct, would go unnecessarily uncounted, simply because they happen to have been cast for one of the candidates with the bad luck of being assigned one of the bubbles numbered from #8 to #10 in that particular location.

The result of Logan's method, aside from unnecessarily discarding thousands of legal votes, could also mean a potentially lopsided count for candidates who are unfortunate enough to find themselves listed in Logan's "uncountable" bubbles #8 to #10.

Eg. In some imaginary precinct, Clinton may be listed at bubble #8 and would have received 100 attempted votes. Obama might be listed on bubble #11 and would have also received 100 attempted votes. In this case, by Logan's method, if a single unaccounted for NP-AI ballot was cast in the precinct, Obama would receive all of the 100 votes he's entitled to, but Clinton would receive 0 votes. In that scenario, a likely one in many of L.A.'s more than 4000 precincts, Obama would end up receiving an inappropriate 100 vote advantage over Clinton in that particular precinct.

Paging Debra Bowen. Again...

California's Sec. of State Bowen stepped in previously to order Logan to review the precinct poll rosters to collect the data needed to accurately count as many ballots as possible.

In her Feb. 14 letter [PDF] she wrote that "If the intent of any of these voters can be ascertained, Los Angeles County would be in the position to count votes for president that, to date, have gone uncounted," after examining the rosters.

She went on to assert to Logan that they "both share the goal of accurately counting each and every vote in every case in which the voter's intent can be clearly determined," and of the importance of "reassur[ing] the public that every effort is being made to count every vote where the voter's intent can be determined."

If Bowen is to be taken at her word then, and I have full confidence that she can, she now needs to step in again and order Logan to use the collected poll roster data to "count every vote where the voter's intent can be determined," since it should now be easy to do with the number of NP voters, as listed in the poll roster, at Logan's disposal following his review.

If Logan is allowed to toss out thousands of ballots, which could otherwise be easily counted, it will set a horrible precedent for vote counting in the state of California under Bowen's watch.

Count the ballots. It's the law...

Rick Jacobs of the Courage Campaign, who has been on the front line of the "Double Bubble" ballot battle since even prior to Election Day, tells me his organization's analysis of the uncounted ballots has determined that the ultimate results will not be changed if the currently uncounted ballots are counted. I haven't done a similar analysis, so I'll presume his group's analysis is correct, though AP suggests that delegate totals may, in fact, be changed depending on the final results.

Nonetheless, no matter how the results may or may not be changed in the ultimate outcome of the election, Bowen must refuse to allow Logan's current scheme, due to the terrible precedent that it will set. Tossing out countable votes should never be an option, and certainly not one that Bowen should countenance during her so-far impressive tenure.

She needs to step in once again and demand that every vote be counted, as required by both state law, which requires that the election code "shall be liberally construed so that the real will of the electors will not be defeated by any informality," and the state Constitution of California which states, in Article II in no uncertain terms: "A voter who casts a vote in an election in accordance with the laws of this State shall have that vote counted."

The clock is ticking. Local results must be certified before the 5th of March. Count the ballots, Mr. Logan. All of them.

UPDATE 2/27/08 9:47am PT: According to Pasadena Star-News, Bowen's press spokes is quoted as saying: "Secretary Bowen is pleased that the county is taking steps to count all the votes where voter intent could be reasonably determined." While that's a bit vague, and leaves a door to counting all ballots open as I see it, I've got calls in to the SoS' office to see if I can learn more. If they confirm that her office is really fine with tossing thousands of countable votes, as you may suspect, I'd disagree. Will update here with anything additional that I'm able to learn from them.

UPDATE 2/27/08 2:00pm PT: I've now gotten to chat, about all of this, with Bowen's spokesperson, Nicole Winger, whose carefully worded statement to the Pasadena Star-News is mentioned in the update above. As I suggested there, her statement was indeed "vague" and not accidentally so. We chatted about the details of the full article above to make sure she understood that Logan is proposing discarding possibly thousands of ballots that can --- and according to CA state law and constitution, must --- be counted. She will be sharing that information with the others in the office, including Bowen.

For the moment, she tells me that Bowen's office is still learning the details of Logan's proposed plan.

He had asked, in his Feb 25th letter [PDF] to her, detailing his new plan, for her "concurrence with the approach and intent of" his proposed counting scheme.

However, Bowen's office has notably not issued one at this time. For the moment, that's about all I can report. Will update again when/if things change...

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