Voter Intent - The Coming Battle Over Write-In Votes In Municipal Election Hand Count

Nick Moe started a write in campaign for Assembly Chair Ernie Hall's seat two weeks before the election. That's not much time to get the word out.  He said he was motivated by Hall's cutting off debate over the Mayor's sudden and, some say, draconian labor ordinance.

Moe totally surprised everyone but, maybe, himself.  The write-in candidate was only 93 votes behind Hall.  When Lisa Murkowski did her write-in campaign after losing the primary to Joe Miller in 2008, she had months and millions to get her message across.

 But while many Anchorage residents assume that Nick Moe is trailing by 93 votes, that isn't exactly clear.  Actually, the Municipal Elections Board has not given any votes to Nick Moe yet.  The official results only list "Write-In."  From the election results page:

ASSEMBLY DISTRICT 3 - SEAT D
		Total
Number of Precincts		26
Precincts Reporting		24	92.3%
Times Counted		8031/37964	21.2%
Total Votes		7163
HALL, Ernie		3628	50.65%
Write-in Votes		3535	49.35%

 
The scanners on the voting machines have identified them as votes for a write-in candidate, but the write-in votes have NOT actually been looked at to see if they are all for Nick Moe.  Presumably, most of those votes are for Nick Moe, though a certain number could be for other candidates, like Mickey Mouse. 

According to Deputy Election Clerk Amanda Moser, on Thursday at 6 pm in City Hall, the election officials will announce which absentee and questioned votes will and will not be counted. Those disqualified will be notified and given a chance to appeal between the end of the qualification review and Thursday night.  (Actually, they may already have begun this, I forgot to ask if they'd finished the verification.)

Friday, at 8 am, they will begin to count them.  If, and only if, the number of votes for the write-in candidate exceeds the number of votes for Ernie Hall, will they then look to see the names of the write-in candidates.  Of course, if it is anywhere close, I suspect the Moe campaign will want a hand count.

When I saw Moe last Thursday at the "It's Our Oil" rally, I asked him what lay ahead.  Basically he said he needs to now raise money for attorneys to make sure he gets every write-in vote.  He says he's worried about people who might have written in his name, but not filled in the oval next to it.  You can hear him in this short video tape.




When I asked the Municipal Clerk on Friday about what would and wouldn't count I was told they have to follow the law.

The Election Handbook says:

Write in votes are only allowed during Regular and Special Municipal Elections, and are not allowed during a Run-off Election.

So far so good, this was a regular election, not a run-off election.

To be a valid write-in vote, the oval next to the candidate's name must be filled in and the candidate's name marked in the area of the ballot that has a blank space provided for this purpose.

The Municipal Code says (I've bolded the most pertinent parts):

28.70.030 - Rules for manually counting ballots.

A.   The election board shall manually count ballots according to the following rules:

1.   Ballots marked by the use of cross-marks, "X" marks, diagonal, horizontal or vertical marks, solid marks, stars, circles, asterisks, checks or plus signs that clearly indicate the oval or the square the voter desires.

2.  A failure to properly mark a ballot as to one or more candidates or propositions does not itself invalidate the entire ballot.

3.  If a voter marks fewer names than there are persons to be elected to the office, a vote shall be counted for each candidate properly marked.

4.  If a voter marks more names than there are persons to be elected to the office, the votes for candidates for that office shall not be counted.

5.  The mark specified in 1. of this subsection shall be counted only if it is substantially inside the oval or square provided, or touching the oval or square so as to indicate clearly that the voter intended the particular oval or square to be designated.

6.  Improper marks on the ballot shall not be counted and shall not invalidate marks for candidates or propositions properly made.

7.  An erasure or correction invalidates only that section of the ballot in which it appears.

8.  In order to vote for a write-in candidate, the voter must:

a.  Write in the candidate's name in the space provided;

b.  Mark the oval or square opposite the candidate's name in accordance with subsection A.1 of this section; and

c.   Not have marked ovals or squares in excess of the number of offices available.

9.  A write-in vote for a candidate whose name is also printed on the ballot may be counted only if the oval or square preceding the written name is filled-in, the oval or square preceding the printed name is not filled-in, and the number of filled-in ovals or squares does not exceed the number of offices available.

10.  A write-in vote shall not be counted in a runoff election.

11.  A sticker bearing a candidate's name may not be used on the ballot.

B.   The rules set out in this section are mandatory and there shall be no exceptions to them. A ballot shall not be counted unless marked in compliance with these rules. 

The rules say that the oval must be marked.  There's a lot of leeway - X, diagonal, asterisks, checks, etc. - but something has to be in the oval.  B says that it's mandatory and no exceptions.

The Murkowski Write-In Court Case- The Primacy of Voter Intent

The 2008 election questions about how to decide which write-in votes would count ended in the Alaska Supreme Court, a case called Miller v. Treadwell.  Miller was arguing, among other things, that if people mispelled Murkowski's name, the votes shouldn't count.


The basic principle articulated by the Court was the primacy of voter intent and thus minor spelling errors didn't matter:

"Voter Intent Is Paramount, And Any Misspelling, Abbreviation, Or Other Minor Variation In The Form Of The Candidate's Name On A Write–In Ballot Does Not Invalidate A Ballot So Long As The Intention Of The Voter Can Be Ascertained."

There are several clear, more specific, statements about spelling in the decision.  Here's one, for example:

Our interpretation of AS 15.15.360 permitting abbreviations, misspellings, or other minor variations in the form of the name of a write-in candidate so long as the intention of the voter can be ascertained is also consistent with the federally mandated standard for counting the write-in votes of those voters living or serving in uniform overseas. The Uniformed and Overseas Citizens Absentee Voting Act provides that in counting the ballot of a uniformed services voter or other voter who is overseas, “[a]ny abbreviation, misspelling, or other minor variation in the form of the name of a candidate or a political party shall be disregarded in determining the validity of the ballot, if the intention of the voter can be ascertained.” ^FN15 The Alaska Administrative Code incorporates this requirement into state law. ^FN16 Miller's proposed construction of the statute would require us to impose a different, and more rigorous, voting standard on domestic Alaskans than on those who are serving in the military or living abroad. Our construction of AS 15.15.360 treats overseas and domestic Alaskan voters equally, ensures that each write-in vote is treated equally and counted in the same manner, and avoids valuing one person's vote over that of another. ^FN17

Even though Nick Moe's name is much easier to spell, it's possible someone might misspell it.  If they do, and it's clear they meant Nick Moe, the guidance from this decision is that it should count for Nick Moe.  But, I suspect, if someone writes in Micky Mouse, Moe would have a hard time claiming they meant Nicky Mo(us)e. 

When it came to filling in the ovals - or at least marking them somehow - the Court ruled that blank ovals, even with Murkowski's name next to it, should not be counted.

In part the misspelling rule was based on the argument that the law didn't explicitly say the name had to be spelled correctly, but the state law clearly said the ovals had to be marked.  The Municipal law follows the state law closely.  You can see above that it clearly says the ovals have to be marked (A1 says the oval has to be marked.)  It's 'mandatory' (B says the rules above are mandatory.)


What It Means

• Misppellings, as long as voter intent is clear, should be counted for the write-in candidate.
• Along with the name written in, the oval must be marked.  It doesn't have to be filled in completely, but there has to be some mark in the oval.

How does this relate to the Court's "Voter Intent" principle?

"Voter Intent Is Paramount. . .  So Long As The Intention Of The Voter Can Be Ascertained."

I think there are two different things to consider here:

1. The mechanics of the voting machines and determining the voter's intent among two or more candidates whose names are printed on the ballot
2. Determining the voter's intent if they write in a name

Let me explain.  Marking the ovals is necessary for two reasons:
1.  To identify one's preference among the candidate names printed on the ballot
2.  For the voting machines to scan the winners, the oval has to be substantially filled in.

However, if the voter writes in a name, but doesn't mark any oval for that race, one has a likely presumption that the voter's intention is the candidate whose name is written in.

One could ask why it would be necessary to fill in the oval as well.  The Supreme Court decision in Miller v. Treadwell says, when discussing spelling, that mistakes shouldn't disenfranchise people.  For example, the decision says:

Alaskan voters arrive at their polling places with a vast array of backgrounds and capabilities. Some Alaskans were not raised with English as their first language. Some Alaskans who speak English do not write it as well. Some Alaskans have physical or learning disabilities that hinder their ability to write clearly or spell correctly. Yet none of these issues should take away a voter's right to decide which candidate to elect to govern. We must construe the statute's language in light of the purpose of preserving a voter's choice rather than ignoring it. As we have consistently ruled, we remain “reluctant to permit a wholesale disfranchisement of qualified electors through no fault of their own, and ‘[w]here any reasonable construction of the statute can be found which will avoid such a result, [we] should and will favor it.’ ” ^FN14

So, the Court has said to allow for errors and mistakes.  What about the error of thinking that if you write in the name, you don't have to fill in the oval?  The voter intent is clear and the Court doesn't want technical errors (where the intent is still clear) to prevent someone's vote from counting. So it would seem to meet their idea of Voter Intent.

Moe's attorney's could argue that this reasoning should be applied to ballots where Moe's name is written in, but the voter has not marked the oval.  That when the names are printed, an oval has to be marked to distinguish which one was selected.  But if there is a write-in, a marked oval isn't necessary.  This assumes, of course, none of the other ovals in that race are marked.

The Court recognized in Miller v. Treadwell, that reading the ballots by the machine isn't absolutely necessary.  In 2008 they found, over Miller's objection, that votes for Murkowski that didn't show up in the machine count (because the oval wasn't marked enough for the scanner to read it) could be counted if the handcount found a mark that touched the oval.

This discussion (Section IV in the Court's decision) gets a little detailed.  Basically Miller argued that the hand count shouldn't look at any ballots that the scanner didn't count as a write-in vote.  The court concluded that since the scanners don't segregate or sort the ballots and since there were enough write-in ballots to win, the Division of Elections had to go through the ballots to see if there were enough of the write-in votes for one candidate to win.  And when they did this, they might find ovals that were marked enough to tell voter intent, but not enough to have registered on the scanner.  The hand counters did find more write-in votes for Murkowski than the scanner did.  So, the extra write-in votes that the hand counters found (above what the scanner counted) were valid. 

On the other hand, they rejected Murkowski's argument that ballots that had her name written in, but hadn't marked the oval at all, should be counted.  This seems to be, at least partly, based on the fact that the law very explicitly says that the ovals have to be marked for the vote to count.

Could Moe's attorneys persuade the court that the principle of intent should invalidate that part of the law because if someone writes in a candidate's name, they clearly have intent to vote for them?  That it's inconsistent with the Voter Intent principle? It would seem they rejected that argument in Miller v. Treadwell, but I haven't read all the briefs so I don't know for sure that the argument was made.  A cautious court would leave that for lawmakers to change. 

Another potential issue that Moe could conceivably argue is that if people from his district voted questioned ballots on ballots that didn't have his race on them, but they wrote in his name on the ballot, the vote should be counted because

1. they were eligible to vote for him, and
2. they showed intent to vote for him

I suspect this would be a hard case to win.  First, I don't know if there even are any such marked questioned ballots.  Second, the instructions for questioned ballots say that if the ballot is different from their district's ballot, they may not be able to vote for all the offices.  (See this post for a picture of the orange  "Notice To Questioned Ballot Voters.") Though, I have to say, as a poll worker who gave voters questioned ballots this election, I suspect this piece of paper was not given to every person voting a questioned ballot.  Either the poll worker didn't know they were there or just forgot to give them out with every questioned ballot.

Moe's comments in the video make it clear that he plans to push for every ballot that has his name on it and some mark in the oval to count.  And it would seem that the Miller v Treadwell decision supports him.

If he were to take it further than that and argue those ballots with his name written in that do NOT have the oval marked should count, I think it will be a harder sell. He can argue it's consistent with the Court's principle of favoring Voter Intent.  But the opposing side will argue that the statute very clearly says the ovals must be marked.  They'll also argue that voters who want to vote every item in their district race can vote in their home precinct, can vote in one of three centers that have all the ballots, or can vote early or absentee.  If they choose not to take one of those options, it's the voters choice.

Besides, there is no place on the ballot to clearly add a write-in for a race that doesn't appear on the ballot.

What adds to the significance of each ballot is the fact that Ernie Hall has been a regular supporter of Mayor Fink [Sullivan, the younger] on many, if not most, important votes.  If Moe were to win this seat, it would put those who generally oppose the Mayor in the majority in the Assembly.  So we can bet that every vote will be fought over.