|To:||County Clerks/Elections Administrators|
|From:||Ann McGeehan, Director of Elections|
|Date:||October 13, 2010|
|RE:||Counting Rules for Paper and Optical Scan Ballots|
Why counting rules are still important
There are still counties, school districts, cities, and other political subdivisions that manually count their ballots. (There is one kind of accessible voting unit which allows the manual counting of ballots voted on it.) Even ballots that are counted by automatic tabulators, such as optical scan devices, may be damaged or irregularly-marked, requiring a determination of voter intent and duplication. (See Sections 127.125, 127.126, 127.130, and 127.157 of the Texas Election Code (“the Code”).) These rules are generally inapplicable to direct record electronic (“DRE”) voting systems because a DRE system does not allow for ambiguous voter markings; however, see Advisory No. 2010-13, for guidance on counting write-in votes cast on DRE systems.
The following are quick reference rules for counting a ballot:
An individual mark, or “cross-over voting,” always overrides the straight-party mark. Individual marks include write-in votes.
An individual vote for a candidate in the same column as a straight-party mark is regarded as an “emphasis” vote and does not invalidate the straight-party mark. If the only individual votes are emphasis votes, the vote is tallied the same as a straight-party vote without regard to the emphasis votes.
Individual marks for more than one candidate in the same race constitutes an overvote, and neither candidate receives a vote. (This is the rule for general election for state and county officers, when only one vote is allowed in each race. In certain local elections, more votes are allowed, e.g., at-large voting.)
Failure to mark a ballot in strict conformity with the voting instructions does not void the ballot. A voter’s ballot must be counted if the voter’s intent can be ascertained unless other law prohibits counting the vote. (See Sections 65.007, 65.010, and 65.011 of the Code for situations in which ballots are not counted.)
Failure to vote a race or proposition on the ballot does not void the ballot. If the voter’s intent can be ascertained as to any part of the ballot, the election judge must count that part of the ballot, unless other law prohibits counting the vote. (See Section 65.009 of the Code.)
Failure of the election judge to sign the back of the ballot does not automatically void the ballot. The presiding judge examines the ballot and if he or she finds that it is an official ballot from the polling place, the officers may count the ballot.
For further details on the counting process, please see Chapter 4 of Qualifying Voters on Election Day, Handbook for Election Judges and Clerks, 2010-2011.
Straight-party votes, cross-over voting
This office has had many inquiries regarding the effect of a voter voting straight-party and also making an individual mark for another candidate in a different party, or for an independent or write-in candidate. Section 65.007(c) of the Code states that if a ballot indicates a straight-party vote and a vote for an opponent of one or more of that party’s nominees, a vote shall be counted for the opponent and for each of the party’s other nominees whether or not any of those nominees have received individual votes.
The instructions printed on the ballot as required by Section 52.071(b) of the Code also inform the voter that if he or she votes straight-party and casts an individual vote for an opposing candidate, the individual vote will count for the opponent and votes will count for all the other nominees of the party for which the straight-party vote was cast. This is often referred to as “cross-over voting” or a “split ticket.” An individual cross-over vote will always be given precedence over the straight-party vote. According to Section 65.007 of the Code, the voter has voted a split ticket, and the votes must be tallied separately, as if the voter had marked all the individual boxes separately, without entering a straight-party tally.
Section 65.007(d) of the Code also provides that if the voter marks two or more straight-party votes, and there are no individual votes, the portion of the ballot for offices must not be counted, i.e., multiple straight-party votes cancel each other out and no votes are counted. However, if the voter also marks individual votes, and no other individual votes are received in that race, then the individual votes are counted.
Section 65.011 of the Code states that except as provided by Section 65.007(c) or (d) of the Code (the two situations discussed above), if the voter marks the ballot for more candidates than the number of persons to be elected for that office, none of the votes may be counted for that office. This is called an “overvote.” Remember that a write-in vote mark and any other individual vote mark are likewise an overvote. Two such marks are still an overvote in the election for state and county officers (i.e., in the races in which voters are only allowed to cast only one vote). As noted above, some locations will have joint elections with entities that have pure at-large voting. For example, in a local school board race in which the top three “vote-getters” are elected, four votes would be an overvote.
Tallying, straight-party tallies:
When tallying votes, if a voter marks a straight-party vote only, and does not make an individual mark for any other candidate, a tally will be given to the party. The total number of straight party votes tallied for each party must be added to the total votes received for each of the party’s nominees individually. However, if the voter does “cross-over vote” in conjunction with a straight-party vote, this is no longer a straight-party ticket for purposes of tallying. According to Section 65.007 of the Code, the voter has voted a split ticket, and the votes must be tallied separately, as if the voter had marked all the individual boxes separately, without entering a straight-party tally.
A write-in vote is counted if the election judge can determine the intent of the voter. If the voter misspells the write-in candidate’s name but the judge can determine the intent, the vote is counted. If the voter only writes in part of the name as it appears on the list but the judge can determine the intent of the voter, the vote is counted. Failure to write in the name exactly as it appears on the list does not invalidate the vote as long as the judge can determine the intent of the voter. If the voter writes in the name of a declared write-in candidate but fails to mark the box, oval or arrow, the vote should be counted. (Section 65.009 of the Code.) If the voter uses a sticker with the write-in candidate’s name preprinted on the sticker, the vote cannot be counted. Only declared write-in candidates whose names appear on the list of declared write-in candidates are entitled to have their votes counted. (Section 146.022 of the Code.) For a more in-depth discussion regarding counting write-in votes, please refer to Election Advisory No. 2010-13, “Processing and Counting Write-In Votes Cast on Electronic Voting Systems.”
Section 65.010 of the Code lists the situations in which ballots may not be counted. In one of these situations, if the ballot is unnumbered or unsigned by the election judge, the Code additionally provides that the presiding judge counting the ballots shall examine the ballot to determine whether or not it appears to be a ballot provided to a voter at the polling place. In other words, the ballot is not automatically voided if it is not signed on the back, but may be accepted for counting if the judge determines that it is an official ballot.
The counting or “resolution” team:
Hand counting, generally.
When the voting system consists of paper ballots or optical scan paper ballots that are manually hand counted at the election day polling place, the ballots are counted by one or more teams of election officers assigned by the presiding judge. Each team must have at least two election officers. (See Section 65.001 of the Code.) The presiding judge may direct the counting to start at any time after the polls have been open for one hour and there are at least 10 ballots in the ballot box. After the polls close or the last voter has voted, whichever is later, the counting of ballots must be conducted continuously until all ballots are counted. (See Section 65.002 of the Code.) Three original tally sheets must be kept to record the number of votes received for the candidates and for and against the measures voted on. (See Section 65.004 of the Code.) If counting begins before voting is concluded, ballot box no. 1 and ballot box no. 2 are used on a rotating basis. (See Section 65.003 of the Code.) After a ballot is counted, it is placed in ballot box no. 3. A voted ballot that is not counted is also placed in ballot box no. 3. (See Section 65.012 of the Code.) Upon completion of the vote count, the presiding judge must prepare the returns of the election for the precinct. (See Section 65.014 of the Code.)
Irregular Marks found in Precinct Tabulator.
If the voters deposit their ballots directly into a unit of automatic tabulating equipment at the election day polling place, while the polls are open or as soon as practicable after the polls close, the election officers must remove the counted ballots from the ballot box and examine them for irregular marks. The ballot box may not be opened for such purpose unless there are at least 10 ballots in the box. If an election officer determines that two or more ballots were improperly tabulated because of irregular marks, the irregularly-marked ballots shall be separated from those that were marked properly, and all of the ballots shall be delivered to a central counting station. At the central counting station, the irregularly-marked ballots must be duplicated and all the ballots are processed as though they were ballots counted at central counting station. The tabulation conducted at the central counting station becomes the official tabulation of those ballots. If just one ballot is found to be irregularly-marked, then just that one ballot is examined at the central counting station, and adjustments made to the totals certified by the election judge. The election results for the affected precinct must be manually entered into the election processing system. (See Section 127.157 of the Code.)
Irregular Marks found in Central Counting Station Tabulator.
When early voting ballots and election day ballots that are to be tabulated by central counting station tabulators are delivered to the central counting station, the central counting station manager must have the ballots examined to detect any irregularity. If an irregularity is found, the central counting station manager should have the ballot delivered to the presiding judge of central counting station so that the ballot may be duplicated to indicate the intent of the voter if the voter’s intent is clearly ascertainable, in accordance with usual counting rules. (See Sections 127.005(c), 127.125, and 127.126 of the Code.)
SOS-Authorized “Sticker” Procedure.
If optical scan ballots are being used, a ballot will have to be duplicated in these circumstances only if the voter failed to mark the oval or arrow beside the write-in candidate’s name. Alternatively, the Secretary of State’s office has also approved the “sticker procedure.” Specifically, you may use removable black stickers over the blank write-in oval to allow an optical scan voting system to recognize that a vote for the write-in should be counted in that race, and not a vote for the straight party candidate. In using this procedure, a piece of clear cellophane tape is placed over the voter’s blank mark, then the removable black sticker is placed over the tape. Placing the clear piece of tape over the original voter’s mark or lack thereof, as stated above, protects the legibility and protects it from destruction, concealment, removal, or other impairment. This procedure may also be used, in lieu of duplicating, when there are irregular marks on the ballot. However, we recommend that you check with the vendor of your voting system because some scanners react poorly to ballots with stickers applied.