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Elections and Voter Information

Voter Information

Election Advisory No. 2014-20

To: Elections Officials
From: Keith Ingram, Director of Elections
Date: October 7, 2014
RE: Processing and Counting Write-In Votes Cast on Electronic Voting Systems

This advisory provides general guidance on how to process and count write-in votes cast on direct record electronic (“DRE”) voting systems, precinct optical scan systems, and central optical scan systems.

Must voters write in a declared write-in candidate’s name exactly as the name appears on the list of declared write-in candidates in order for the vote to be counted?

No. State law provides that failure of a voter to mark a ballot in strict conformity with the Election Code does not invalidate the ballot. A vote on an office or measure must be counted if the voter’s intent is clearly ascertainable. Tex. Elec. Code Ann. § 65.009(a) and (b) (Vernon 2013). Questions of voter intent regarding electronic ballots are resolved by the presiding judge and clerks at the central counting station. Id. §§ 127.006, 127.007, 127.125, 127.126.

How must voter intent be determined for votes cast on optical scan ballots and DREs since these ballots are tabulated electronically?

Optical Scan Ballots Counted by a Precinct Tabulator

The law requires that all optical scan ballots be reviewed for irregular marks. There are many irregularities possible with write-in votes. If just one ballot is found to be irregularly-marked, then just that one ballot is examined and adjustments made to the totals certified by the election judge. However, it is highly likely that there will be more than two irregularly-marked ballots cast, which will require that the ballots be delivered and counted again at a central counting station. The precinct tabulation obtained at the precinct will be void. Id. § 127.157.

Our recommendation is that at the end of election day after the polls have closed, all ballots be removed from the optical scan ballot box, examined for irregular marks, secured and delivered to the central counting station for processing.

The presiding judge of the central counting station or his or her designee will take delivery of the secured container of ballots. At the direction of the presiding judge, the central counting clerks will separate all ballots containing a write-in vote or irregularly-marked ballots. The ballots are then delivered to the manager of the central counting station, so that the irregularly-marked ballots can be duplicated.

If there are ballots to be duplicated, the presiding judge shall have his/her clerks duplicate the ballots. It is the presiding judge that has the authority to determine the intent of the voter if there is a question on the ballot, especially on the write-in votes. The duplication team (i.e., presiding judge and clerks) must record the serial number of the original ballot on the duplicate ballot and visa versa. After making the appropriate determinations and taking the appropriate actions, the manager shall approve all ballots for counting. If there are ballots to be duplicated, the election returns provided from the precinct optical scan system are void, and the new central count station tabulation will be the official election night totals. If there are no write-in votes and no irregularly-marked ballots, the tabulation at the precinct is the official tabulation.

Counting Rules to Follow for Optical Scan Ballots with Write-Ins

If the ballot is correctly marked as in example 1 below, no other action is taken except to count the write-in vote. If the ballot is marked as shown in example 2, you will need to duplicate the ballot to eliminate the vote for the Libertarian candidate in the U.S. Senate race since the voter made a cross-over vote by writing in the name of a declared write-in candidate.

Example 1

STRAIGHT PARTY
U.S. SENATOR
(Vote for One) (Vote for One)
■ REPUBLICAN PARTY □ JOHN DOE (Rep)
□ DEMOCRATIC PARTY □ HARRY SMITH (Dem)
□ LIBERTARIAN PARTY □ BOB LILLY (Lib)
□ GREEN PARTY □ RENEE NEWS (Grn)

SARA LEE* WRITE IN

*In the above example where a voter marks straight party, but votes for a declared write-in, the write-in vote is counted.

Example 2

STRAIGHT PARTY
U.S. SENATOR
(Vote for One) (Vote for One)
□ REPUBLICAN PARTY □ JOHN DOE (Rep)
□ DEMOCRATIC PARTY □ HARRY SMITH (Dem)
■ LIBERTARIAN PARTY □ BOB LILLY (Lib)
□ GREEN PARTY □ RENEE NEWS (Grn)

SARA LEE* WRITE IN

*In the above example a voter marks straight party, but fails to properly mark the box next to the write-in name, the write-in vote may be counted if the voter has written in the name of the declared write-in and the presiding judge can determine the intent of the voter. The ballot will be duplicated so that it can be tabulated correctly by the tabulator.

Optical Scan Ballots Counted by a Central Tabulator

If optical scan ballots are used in a precinct without a precinct counter, the ballots are deposited by the voter in a pre-locked and pre-sealed ballot box. When the ballots arrive at the central counting station, the presiding judge and clerks (i.e., resolution team) will examine the ballots for any irregularly-marked ballots and ballots containing write-in votes prior to running them through the central tabulator. The resolution team can either duplicate the irregularly-marked ballots or the manager can direct those ballots (all races) to be hand-counted.

Write-In Votes Counted by a DRE Voting System

There are fewer voter intent errors when using a DRE voting system. There is no need to review these votes for conflicting straight party votes or failure to check the write-in box because the DRE will not let the voter make these mistakes. The voter cannot write in the name of a candidate unless the voter has selected the write-in feature on their particular DRE. However, the voter may still misspell a declared write-in candidate’s name and in that event, these ballots do need to be reviewed for voter intent.

All write-in votes that are not written exactly as the name appears on the list of declared write-ins must be reviewed at the central count station for voter intent. Just as with the precinct count optical scan ballots, the presiding judge of the central counting station determines the voter intent. This is done by printing out a report listing all the various irregular write-in entries (entries that do not match exactly as the name appears on the list of declared write-ins), printing a list showing write-in votes, or using the printed election results from each precinct. The presiding judge of the central counting station reviews the list and determines which ones may be accepted and which ones must be rejected. Each DRE voting system treats the process of accepting or rejecting a write-in vote slightly differently, but they all involve the same manner of review for voter intent at the central count station.

ES&S iVotronic
When the precinct election judge prints out the returns at the precinct, the number of votes written in for all candidates will appear on the printout. It does not matter whether the name was spelled correctly or not. The information from the precinct results tape will need to be available to the presiding judge at the central counting station. The presiding judge at the central counting station reviews this information and determines which spellings will be accepted and makes the appropriate manual adjustment in the Election Report Manager (ERM).

Hart eSlate
When the Mobile Ballot Box (MBB) is loaded into a Tally database with no “certified” write-in candidates identified, a report showing all the various unresolved write-ins will be available. The write-in votes will be grouped, on the report, as the names were actually written. For example:

Bill Long 8 (eight write-in votes using this spelling)
Bull Lon 5 (five write-in votes using this spelling)
Billy Lung 9 (nine write-in vote using this spelling)

The presiding judge of the central counting station will review the unresolved write-in report provided by Tally and determine which spellings will be accepted or rejected. The “Write-In Resolution” tab in Tally will be used to either accept or reject the various spellings of a candidate’s name.

ES&S (formerly Premier) – AccuVote TS & TSX
From the GEMS software, the presiding judge of the central counting station will print a report of all the write-in votes that are cast on the DREs. From this report, the presiding judge of the central counting station and clerks will hand-tally all of the valid write-in votes. This tally will be added to the certification report. At the precinct level, the TSX End of Night Report, printed from each voting machine by the judge at the polling place, will show the write-ins cast on that machine.

Can a county program its accumulation software to recognize certain misspellings and irregular marks so that these votes do not have to be reviewed by the counting station clerks?

No. State law provides that if a ballot is marked irregularly, the election judge must determine the voter’s intent; it would be a violation of state law to pre-determine how irregular marks should be counted without the determination by the presiding judge. Id. § 65.009; Tex. Att’y Gen. Op. No. JM-998 (1988) (PDF). Section 65.009 of the Texas Election Code specifically provides that the vote should be counted if the voter’s intent is clearly ascertainable. The decision to accept the write-in vote is to be made by the presiding judge of the central counting station.

How is the counting team selected? Is it the Ballot Board Members?

The counting station team (sometimes referred to as the resolution team) is made up of the counting station clerks appointed pursuant to Section 127.006 of the Code. The counting station clerks at the direction of the presiding judge will resolve any voter intent questions on the ballots as they are duplicated or manually counted, as applicable. If adequate persons are not available for staffing your counting team, the ballot board members could also be appointed to serve as counting station clerks, as long as their ballot board duties have been completed.

Will we be able to recess during the night or will we have to count continuously until we count all votes, including write-ins?

Section 65.009(c) of the Code states that after the polls close or the last voter has voted, whichever is later, the counting of ballots shall be conducted continuously until all the ballots are counted.

We hope you find this information helpful. Please contact us toll-free at 1-800-252-2216 if you have any questions.

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