This topic is monitored by Moritz Law Professor Mary Beth Beazley
Ballot Design Issues for 2004 Election
Since the 2000 election, voting technology has started to receive significant attention, as voters realize that their ability to vote may be helped or hindered depending on whether their precinct uses punch cards or optical scanning equipment, lever machines or DRE (Direct Recording Electronic) systems. Another significant factor in voting technology, however, has received much less attention from the public: the way that ballots are designed.
Knowing potential pitfalls in various types of ballot designs makes it easier for responsible voters to use the power of the ballot accurately and completely. While the variety of ballot designs makes it difficult to describe all possible problems that voters may face, three aspects of ballot design are particularly likely to affect whether voters vote in all races, and whether voters cast their votes accurately: (1) the method of presenting races to be voted on, (2) the order of candidate names within each race, and (3) the language used to describe the issues that voters must decide with a "for" or "against" vote. In Ohio, the method of presenting races can vary from county to county and even from precinct to precinct, depending on the voting technologies mentioned above. Name order and ballot language decisions, however, are closely regulated by state law.
Method of Presenting Races to Be Voted On
The method of presenting races to be voted on is important because it may affect the "fall-off" rate, or the rate at which voters fail to vote in every race on the ballot. While some fall-off may well be voluntary, ballot designs that make it easier or harder to vote may affect whether voters complete their ballots. The major factor controlling presentation of races is the type of voting technology, and the paragraphs below note some fall-off problems typical with commonly used voting systems.
Races out of range of vision
Generally, all lever machines and some DRE technology systems present voters with a ballot on which all of the races and issues are seen at once. In lever-machine precincts in particular, the "all races at once" method of presentation can cause fall-off problems when some voters do not see certain races or issues (and thus, do not vote in those races) because the races are displayed out of the voter's range of vision. 1 This problem may be less significant in DRE-technology precincts, because some DRE machines use flashing lights to identify each race or issue, and the lights continue to flash until the voter has voted that race or issue or has cast his or her ballot (for example, by pressing the "VOTE" button). Some DRE machines use a series of computer screens to identify races, which would also ensure that the voter has all races within his or her range of vision (presuming the voter does not cast his or her vote before seeing all screens).
Before pulling the lever or pressing the button to vote, voters who face "all races at once" ballots may wish to step back and review the whole ballot to make sure they have recorded a vote in each race in which they wish to do so.
Punch card ballot systems and some DRE systems present the races to voters with a series of pages or screens. In most punch card systems, voters use one card to vote. The voter uses a device to punch through the card's numbered holes, lined up in a machine to match races listed in a booklet that may be part of the voting apparatus. The number of races, candidates, and issues, naturally, will determine whether voters are presented with a thick booklet or a thin booklet when they cast their votes. Some DRE systems mimic the punch card system by taking voters through a series of screens rather than a series of pages, with one or more races to vote on each screen.
Some voters neglect to complete the entire ballot when using punch card booklets or multi-screen DRE systems — perhaps by choice, perhaps because they think that they have already voted in the races in which they have an interest, or perhaps due to voter fatigue.
One reality of American-style democracy — where voters elect numerous individual officeholders rather than simply voting for the political party of choice — is that voters have many, many decisions to make on election day. Unprepared voters may be particularly likely to feel pressured by those who may be waiting in line, become confused or frustrated by the large number of choices to make, and quit before they finish voting in all races. Thus, voters whose precincts use punch card ballots or multi-screen DRE machines may wish to carefully preview the races before they go into the voting booth; knowing how many races and issues they can expect to see on the ballot may help to avoid voter fatigue.
Two-sided and multi-page optical scan ballots
In precincts that use optical scan technology, voters may be presented with one or more 8-1/2-by-14-inch pieces of paper, which may be printed on one or both sides. Voters are usually asked to use a pen or pencil to fill in a "bubble" next to the name of the candidate or issue position that they wish to vote for. Unintended fall-off is usually not a problem in "Point-of-Entry" optical scan precincts, because this technology requires the voter to feed the ballot into a reader that scans the ballot and then informs the voter of any undervotes or overvotes. The voter is then allowed to make any changes so that the ballot accurately reflects the voter's intent. Not all optical scan precincts use the Point-of-Entry system, however, so voters in optical scan precincts can make sure they have seen all of the races by (1) verifying that they have all of the pages of the ballot and (2) reviewing both sides of each page of the ballot.
Candidate Name Order
The order in which candidates' names are listed on the ballot can have a significant effect on close elections, particularly in less-publicized races. Studies have shown that being the first candidate listed for a race can give a candidate a two-to-three percentage point advantage. 2 Perhaps this benefit occurs because Americans tend to review most information in their lives in a top-to-bottom, left-to-right way, and — especially in less-publicized races — may simply decide that the first candidate is "good enough" without reviewing the rest of the candidates.
Other ballot-design problems can also make name order significant. For example, some ballot designs may have unnoticed flaws that make it more difficult for voters to determine which hole to punch, which button to push, or which lever to pull to select a particular candidate. (The "Butterfly Ballot" is a famous example of this type of problem.) On ballots with design flaws, some positions — such as the first or last position on a list — may be clearer than others, and thus more advantageous to the candidates in those positions.
One method that can be used to combat both of these problems is "rotation" of candidate names. Rotation means simply that each candidate for an office appears in the first position on the ballot (and in every other position) no more or no less often than his or her opponents. Thus, if there are seven candidates for an office, each candidate would be in the first position in one-seventh of the precincts, in the second position in one-seventh of the precincts, and so on. No system can completely negate the differences caused by different ballot positions. Rotation of candidate names, however, can lessen the harm caused by an unlucky ballot position by spreading the benefits and burdens of each position as equally as possible among all candidates.
Ohio is one of the few states to require rotation. In 1949, a voter initiative added Article V, Section 2a to the Ohio Constitution. That section requires that voters must vote for each office separately (thus making illegal the "straight ticket" method of voting) and requires the General Assembly to "provide by law the means by which ballots shall give each candidate's name reasonably equal position by rotation or other comparable method . . . ." A recent study on the impact of name order notes that not all rotation methods are equally effective, and it specifically recommended that all states rotate names precinct by precinct, the way Ohio does. 3 Ballot rotation creates more work and expense for election officials, but it pays for itself in voter confidence in the integrity of the electoral process.
Even though rotation may lessen the harms caused by flawed ballot design, voters would do well to take care when matching the lever, button, bubble, or punch card hole to the chosen candidate or position. Voters can visit their county board of elections before election day and ask to see and try out the type of voting system used in their precinct. In the alternative, on election day a voter may ask a poll worker to demonstrate how the ballot operates and which buttons or levers match which candidates. Ohio law also allows voters to ask for help if it is needed, and to request a new ballot to replace a spoiled or mismarked ballot. While voters who make mistakes on DRE machines or lever machines can usually correct the mistake simply by pressing the correct button or pulling the correct lever, a punch card voter must ask for a new card (and Ohio law requires that the poll workers provide the voter with a new card, and with a second new card if needed). Of course, the voter must request help before the ballot is cast; once the voter has done so — whether by pressing the "VOTE" button, pulling a lever, or inserting a card in a slot — it is too late to request a new ballot.
Ballot Language Used to Describe Issues before the Voters
Voters cast two different kinds of votes: they can vote for a particular candidate or they can vote for or against a particular issue. Because the language used to describe issues can affect voter decisions, how that language is chosen can be controversial.
Generally, there are four types of statewide issues that appear on the ballot: (1) Constitutional amendments proposed by the state legislature, (2) Constitutional amendments proposed by initiative petition, (3) Statutes proposed by initiative petition, and (4) Referendum petitions submitted to block enacted legislation from taking effect.
Because the full text of proposed issues or statutes would often be too lengthy to appear on a ballot, voters are presented with a short description of the issue and asked to vote for or against it. Accordingly, the language used to describe the propositions becomes very important. Since 1978, the Ohio Constitution has required that the language of all statewide proposals be approved by the Ballot Board. The Ballot Board consists of the Secretary of State, who chairs the board, and four other members, appointed by the Senate President, the Senate Minority Leader, the Speaker of the House, and the House Minority Leader. Section 3505.061 mandates that no more than two of the appointed members of the board can be members of the same political party.
The Ballot Board was created in 1974, as a result of a constitutional amendment that was proposed by the legislature. The amendment mandated that a Ballot Board draft the ballot language describing only amendments proposed by the legislature, provide timely procedures for challenging ballot language, and provide information to voters about proposed amendments. Four years later, the legislature proposed and voters passed, a constitutional amendment requiring the Ballot Board to draft ballot language describing all statewide issues.
The Ohio Constitution requires that when voters are asked to decide the validity of a proposed constitutional amendment or statute, the Ballot Board must make sure that arguments for and against the amendment or law are prepared and made available to voters for their guidance (3505.062, 3505.063).
Article XVI, Section 1, of the Ohio Constitution gives the Ohio Supreme Court jurisdiction to hear cases challenging the proposition language. Section 3505.062 requires that the ballot board must "[c]ertify the ballot language and explanation, if any, to the secretary of state no later than eighty days before the election at which the proposed question or issue is to be submitted to the voters." The deadline for filing actions challenging ballot language, explanations, or procedural issues is 64 days before the election. The Constitution notes that ballot language may be held invalid if is "such as to mislead, deceive, or defraud" the voters; the Ohio Supreme Court has clarified these terms by noting that ballot language "must fairly and accurately present the question or issue to be decided in order to assure a free, intelligent and informed vote by the average citizen affected." The court laid out a test in 1981, noting in particular that the use of "language which is 'in the nature of a persuasive argument in favor of or against the issue'" is prohibited. Perhaps because of the effectiveness of the checks and balances provided by the Ballot Board, there have been almost no significant challenges to statewide proposition language for over 20 years.
Voters can educate themselves about propositions by contacting the state board of elections; as noted above, state law requires that ballot language and other relevant information about issues on the ballot must be prepared by 80 days before the election. The Ohio Constitution requires that each proposition's text, and the text of the arguments and explanations for and against the proposition, must be published three times in at least one general circulation newspaper in each county of the state. Furthermore, Section 3505.06 requires that the full text of each proposed question, issue, or amendment must be posted in each polling place in some spot that is easily accessible to voters.
Educating themselves about voting technology — as well as about the races, candidates, and issues — is something all voters can do to get the best use of the power of the vote.
[Posted: July 14, 2004]
1. See Susan King Roth, Disenfranchised by Design: Voting Systems and the Election Process , 9 Information Design Journal (No. 1, 1998) (available from: http://informationdesign.org/downloads/doc_roth1998.pdf ).
2. E.g., Jon A. Krosnick, Joanne M. Miller, & Michael P. Tichy, An Unrecognized Need for Ballot Reform , in Rethinking the Vote: The Politics and Prospects of American Election Reform 51, 64, 66 (Ann N. Crigler, Marion R. Just, & Edward J. McCaffery, eds., 2004).
3. Id. at 70-71.