JOINT INFORMATIONAL HEARING

DISCUSSION OF PROBLEMS FACED BY VOTERS AT THE 2008 PRESIDENTIAL PRIMARY ELECTION

OVERVIEW

Various types of problems are not uncommon during statewide elections in California and perhaps even inevitable given the large number of voters, poll workers, and polling places involved. According to the Secretary of State’s January 22, 2008 report of registration, there are currently 15,712,753 persons registered to vote in California. Furthermore, there were approximately 23,000 voting precincts and 100,000 poll workers involved in the February 5, 2008 Presidential Primary Election.

Typical election day problems, which are usually intermittent and anecdotal, include: ballot shortages; polling places not opening on time; voter or poll worker confusion regarding procedures or polling place locations, and equipment failures. These kinds of problems are not usually systemic and in most cases, adequately addressed by local elections officials. Exceptions to this rule do occur however. For instance, the last three Statewide Primary Elections have seen problems beyond the ordinary, some of which have directly led to major policy changes.

For instance, during the March 2, 2004 Statewide Primary Election, failures related to electronic voting systems led to the disenfranchisement of thousands of California voters. In Orange County, thousands of voters were provided with the incorrect electronic ballots or mistakenly cast electronic ballots before they were finished voting. This had a direct effect on the outcome of a Democratic County Central Committee contest and possibly other races as well. In Alameda County, encoding machines necessary to operate the voting devices failed in 24 percent of the polling places and an entire race for a Republican County Central Committee seat failed to even appear on the ballot. In San Diego County, encoding device failures caused the delay in opening of over one-third of all polling places – the last one not opening until after 11:00 a.m.

As a result, former Secretary of State Kevin Shelley decertified and conditionally recertified all electronic voting machines in use in California at the time by requiring additional safeguards. That same year the Legislature enacted a statutory requirement that all electronic voting machines provide a voter verified paper audit trail as a means to help ensure that voter intent was correctly recorded.

During the June 6, 2006 Statewide Primary Election, Kern County provided numerous polling places with incorrect activation cards necessary to operate its electronic voting machines. This too resulted in major delays in opening the affected polls on time. According to testimony given by county officials at a follow-up hearing conducted by the Senate Select Committee on Integrity of Elections, the problem was aggravated by a decision not to train poll workers on the procedures for using paper back-up ballots.

During the recent February 5, 2008 Presidential Primary Election, there were far more reports of ballot shortages than normal. These reports included several counties from throughout the state. The shortages appeared to mainly be the result of a higher-than-anticipated number of unaffiliated (decline to state or DTS) voters exercising their option to request and vote a Democratic Party ballot. Current law permits qualified political parties to allow DTS voters to participate in their primary elections. For February 5, the Democrats and the American Independents were the only parties that opted to permit DTS voters to participate in their primaries.

Beyond the ballot shortages, there were an unusually high number of anecdotal reports regarding poll worker confusion over the options available to DTS voters. These ranged from poll workers telling DTS voters they were not eligible to vote at all during the primary, to confusion over which parties, if any, were permitting them to participate.

The most serious problems that came to light during the February 5 election however, were unique to Los Angeles County.

Unlike ballots used by DTS voters in other counties, the InkaVote Plus voting system used in Los Angeles County consists of a series of numbered bubbles that do not have the candidates’ names or ballot measure titles adjacent to them. In order to accurately vote an InkaVote Plus ballot, voters must employ a separate voting device available in the voting booth or use a sample ballot to determine which numbered bubbles correspond to the candidates of their choice. The voting booth device requires a voter to slide his or her paper ballot into it then uses a series of plastic pages containg the candidate and ballot measures to guide them.

However, this system was also set up to require DTS voters mark an extra bubble designating either the Democratic or American Independent Party in order to vote for one of those parties’ candidates. This requirement to mark the extra bubble (beyond the bubble corresponding to the desired candidate) was the source of enormous confusion among voters and poll workers alike and failure to mark it may have disenfranchised thousands of DTS voters by rendering their intent indecipherable. This problem was seriously aggravated by a decision to “overlap” the corresponding bubbles for candidates of different parties. Bubbles numbered 8, 9 and 10 on the ballot were used for both Democratic and American Independent candidates. Had each candidate, regardless of party, been assigned a unique bubble number, determining voter intent would have been relatively easy even with the “extra” bubble requirement.

At the urging of the Los Angeles County Board of Supervisors and Secretary of State Debra Bowen, among others, Dean Logan, the Acting Registrar-Recorder/County Clerk of Los Angeles County pledged to make every possible effort to determine voter intent on DTS ballots and count them. On March 4, 2008, Mr. Logan reported to the Board that out of 60,458 DTS ballots in question, his office was able to determine voter intent and count the votes for President on all but 12,013 of the affected ballots.

The purpose of today's hearing is to discuss these and other problems faced by voters at the 2008 Presidential Primary Election, to assess the steps that elections officials have taken to avoid these problems in the future, and to help the committees determine whether any statutory changes are necessary to prevent a recurrence of these problems.