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Bubble trouble

Richard L. Hasen is a professor specializing in election law at Loyola Law School.

Election administrators have a tough job. They need to pull off a massive voting and vote-counting effort in a short time frame with a limited budget and a slew of underpaid poll workers. Some hiccups are inevitable. At my polling place Tuesday morning, for example, the machine that scans ballots for errors wasn’t working; a technician was “on the way.” A poll worker simply put my ballot and others in an envelope, and I left with the confidence that it would be properly handled and eventually counted.

Still, some problems can be avoided with a little common sense. And the “bubble trouble” fiasco in Los Angeles County -- which led many independent voters to cast ballots that may not be counted in the Democratic primary -- is simply inexcusable.

Here’s the issue. In California, each political party decides whether independent voters -- technically called “decline to state” voters -- can cast ballots in its primary. The Democratic Party and the American Independent Party allow that.

This caused minor confusion up and down the state as election officials tried to sort out which primary ballot, if any, to give to decline-to-state voters. But a problem specific to Los Angeles was much more serious. For their votes in the Democratic or American Independent primary to count, decline-to-state voters here had to fill in a bubble at the top of the ballot indicating which primary they were voting in. A voter who failed to fill in that bubble -- such as a decline-to-stater choosing Barack Obama -- would not have had his or her presidential vote counted. Only votes on local and state propositions would be recorded.

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The printed instructions on the ballot (as well as the registrar’s website) were confusing and unfamiliar. They directed “nonpartisan voters” to fill in the extra bubble. Did decline-to-state voters know they were also “nonpartisan?” Moreover, some independent-minded decline-to-state voters intending to vote in the Democratic primary could have ruined their ballots by indicating they were voting “American Independent.”

Paul Drugan, executive assistant with the L.A. County registrar-recorder’s office, told The Times that the instructions were clear and voters were educated about the problem, but he acknowledged that his office foresaw the problem months ago.

Now lawyers are dealing with the registrar-recorder’s office and the secretary of state, demanding that decline-to-state ballots get another look and that every effort be made to count ballots for voters who skipped the extra bubble. While those votes won’t change the statewide results, some Democratic delegates are chosen based on the winner of each congressional district. That decline-to-state voters -- suspected to heavily support Obama -- could affect the delegate count is not beyond the realm of possibility. It’ll probably be days before the registrar gets a clear picture of how many ballots we’re talking about.

It never should have come to this. As we learned from the Florida 2000 butterfly ballot and more recent snafus, bad ballot design causes serious problems. Rather than try to educate voters about a complicated system, it is better to design a simpler system. Such a system would have prepared ballots that were pre-marked “Democratic” or “American Independent” so that decline-to-state voters would not have had to go through this potentially disenfranchising hassle. In San Francisco and Riverside counties, decline-to-state voters who asked for them simply got Democratic or American Independent Party ballots.

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At the very least, the instructions should have been much clearer. There was no reason to use terminology, such as “nonpartisan,” that didn’t match that of the voter registration forms. And something has to be done so that independent-minded voters don’t get confused by the American Independent Party label.

Poll workers are the first line of defense against ballot mistakes, and they should have been trained to be on the lookout for this problem. If the system is too complicated for poll workers to learn in their 90-minute training, it is too complicated for voters.

Let’s hope the county does a better job in June and November. Designing a ballot that lets people cast a vote that actually counts needs to be a top priority. Running elections is a tough business, but it is not rocket science.


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