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Professor, Recount Board Member Proposes Changes To 'Totally Outdated' Ballot Counting Procedures

Feb 19, 2021

A University of Iowa law professor and member of a recount board in Iowa's 2nd Congressional District is calling for a review of state laws on rejecting ballots. A forthcoming article in the Iowa Law Review details some of these rules, which might surprise some Iowans.

Todd Pettys says he was “a little disturbed” by some of the rules that forced him and other members of the Johnson County recount board to reject some voters’ ballots in the race for Iowa’s 2nd Congressional District.

Pettys was the third member of the board, his appointment jointly agreed upon by the first two board members, who were nominated by the two candidates respectively, Democrat Rita Hart and Republican Mariannette Miller-Meeks.

In the historically-close race for the southeast Iowa seat, now separated by a mere a six vote margin, each ballot took on even more significance. And so Pettys said it difficult to learn that the recount board had to reject some of them, due to laws that Pettys describes as grossly outdated.

He gave the example of a voter who sent in a ballot from overseas after signing their full name at the bottom of their ballot, “undoubtedly for the best of intentions”, Pettys said.

“This is someone who really went to some work to make sure that their voice was heard while they're away from home,” Pettys said. “But that [signature] is quote an ‘identifying mark’ and we have had laws on the books in this state now for a little over 100 years that make ballots ineligible for counting if there is an identifying mark anywhere on the ballot.”

The law disqualifying ballots with identifying marks has its roots in the 1800s, Pettys explains in the article, at a time when the nation’s elections systems were markedly different than today’s. At the beginning of the 19th century, “voters often made their own ballots at home” and did not cast them in secret, he explains.

Political parties capitalized on this, producing their own “distinctively colored” ballots which were readily identifiable by voters, candidates, friends, party bosses and employers, and created the opportunity for “rampant voter coercion” and vote selling, Pettys writes.

Signing a ballot with some distinctive, identifying mark was a way for a vote seller to demonstrate to the vote buyer that they had honored their deal.

But the conditions which prompted this law have long since been addressed through a slate of reforms, Pettys argues, including standardizing the printing of ballots, protecting the sanctity of a secret vote, and establishing secure chains of custody for ballots throughout the process.

Modern voters who ink their ballots with an identifying mark are innocent bystanders, Pettys argues, who almost certainly have no idea that their actions may prove disqualifying.

“Nevertheless we have this law, which I think is totally outdated, on the books,” Pettys said. “And there's a fair number of people who had their ballot – not a large number – but we're talking about an election that was decided by six votes. No matter which candidate benefits there were people who had their ballots tossed on these grounds.”

Though these ballots were few and far between in the 2nd Congressional District recount, Pettys says in an especially close race like this one, it takes only a handful to change the outcome.

Besides the ballots bearing identifying marks, other votes were disqualified because the voter was inconsistent in how they filled in the oval next to candidates’ names, Pettys said, with voters drawing an ‘x’ in some and bubbling in others. This practice runs afoul of laws requiring the use of “prescribed marks”, that is, following directions on how to properly and consistently color in the oval or “voting target."

Still other ballots were rejected because voters failed to color in the oval next to the write-in line when voting for a write-in candidate.

In some instances, these issues were not flagged by the optical scan ballot counting machines at all and only were discovered when the recount board examined the ballots by hand, identified the errors and were forced to reject the ballots.

While affecting a relatively small number of ballots, Pettys said these voters nonetheless deserve to have their votes counted. He urged state lawmakers to review the state’s recount procedures.

“Every good faith vote ought to be counted if at all possible. And right now, in elections that go to recounts at least, there are some ballots that cannot be counted under the law. And I think that's something that policymakers ought to look at,” Pettys said, “whether elections are close or not. But then especially when elections turn out to be close, it can make all the difference.”

The Quad-City Times has reported some Democratic lawmakers are working on what they hope will be a bipartisan proposal to reform the state’s recount procedures in the wake of the historically close 2nd Congressional District race.