"Intent of the voter" is a foolish and unworkable standard

With some of the post-election passions running at least a bit lower now, and with the press consortium busy recounting ballots, I’d like to propose the following:

RESOLVED, that “intent of the voter,” is a ridiculous standard.

Literacy tests evoke an instant repugnance, because they were used in an effort to weaken the effect of black voters, not in a genuine attempt to ensure voter literacy. Nor do I now suggest we should return to the days of literacy tests.

But I do suggest that voters should be able to follow simple instructions, and that if they cannot, that’s sufficient reason to not count their vote. As I read descriptions of the mistakes made even in the optical ballot counties - filling in an oval and writing in the candidate’s name, as well as filling in the oval indicating a write-in… I find myself growing more and more unsympathetic. When the crisis was in full bloom, I was moved by posts here about how confusing and prone to error the punch ballots were. But in a calmer, more reflective mood, I am leaning more and more towards:

  • A national standard for ballots
  • Pre-election publicity that clearly and unambiguously shows how to fill out your ballot

With these in place, I would favor abandoning any “intent of the voter” standard in favor of a bright-line test: if the ballot is filled out correctly, the vote counts. If it isn’t, you’re too stupid to be permitted to vote.

  • Rick

I agree.

Feeling a bit condescending today, Bricker?

I am troubled by the implied equation that confusion in the voting booth is equivalent to “too stupid to be granted a voice in a democratic election”. While it makes a good sound bite, I think it perverts the ideal of an egalitarian society (and yes, I know we don’t really have one. That doesn’t mean we should aboandon the ideal and embrace the shortcomings.)

While you standard does set the bar lower, it otherwise seems to have the same effect that makes literacy tests repugnant. It disenfranchises voters, and we can reasonably assume that the negative effects will be felt disproportionally among certain classes: the aged, those with poor eyesight, citizens for whom English is a second language, people with less education (and thus less experience with ballot-like instruments, e.g fill-in-the-oval forms).

For that matter, while I am sympathetic to the idea that following the intent of the voter is unworkable in some cases, I object strongly to the idea that it is foolish for a democratic system to make every reasonable effort to divine and follow the expressed will of its citizenry.


I was kinda hoping that the myriad ills you mention above would be cured by “Pre-election publicity that clearly and unambiguously shows how to fill out your ballot.”

  • Rick

Bricker, there was pre-election publicity in the home of the butterfly ballot. It was printed in the paper ahead of time and a sample copy was sent to people in the county ahead of time. People still messed it up anyway.

Zev Steinhardt

National standard indeed. After all, it was a federal vote, why not mandate the ballot on a federal level? :shrug:

For the ballot to be completely fair it would have:
Words indicating the name, pictures, and braille. It seems to me that such a ballot would be exceedingly large, but its one stinkin’ ballot and it serves, I’m sure, 99.9% of all citizens or more.

To test the ballot we see if first graders can elect their parents or their teacher to the proper positions.

If this can be done, I think there can be no legitimate complaint made by any party in any way.

This whole voting issue is patently absurd, IMO, so I think we should just say “Fine…you want to be babied? Here ya go,” and be done with it.

zev, AFAIremember, people voted on the stupid ballot. I am still upset about the whole thing being stretched to comic proportions.

What I wonder is…how does one find out they voted incorrectly? I’ve never seen this answered, actually. Were there certification machines that you put them through, knowing it was your vote, and seeing how the machine counts it as you put it in?

So what’s so especially unworkable about “intent of the voter” anyway? It seems analogous to the perfectly ordinary “intent of the parties” standard in contract law, at least to me. If the language of a contract or a vote is clear and unambiguous, that’s how it gets enforced. If the language or vote is ambiguous–dangling chads, etc.–then you pull in extrinsic evidence to see if you can determine the intent of the parties/voter.

After all, we don’t just declare a contract void and meaningless because it’s ambiguous, do we?

But that said, I totally agree with you about adopting national standards for federal elections, especially if the standards reduce or eliminate the problem of ambiguous votes (which is apparently only a serious problem with those stupid punch ballots anyway).

Wasn’t the version of the ballot that was printed in the paper different from the actual “butterfly ballot” design that was used on election day?

Zev, in cases such as that, I am finding that I don’t feel the slightest twinge of guilt in excluding their ballots. Any person or group, given an opportunity to examine the ballot ahead of time and protest any perceived problems, should not be heard to complain after the election - except in the unlikely event that the defect was not reasonably discernable ahead of time.

In short, I am proposing raising the bar on voting, such that in order for your vote to count, you must possess whatever miniumum cognitive ability is necessary to correctly cast your ballot.

To those who Spiritus suggests would be disproportionately affected - the aged, those with poor eyesight, those to whom English is a second language, and those less well- educated, I can only say that I have no objection to ballots being printed in large type, instructions provided in a variety of languages, and any other measures ahead of time to make the ballots as accessible as possible to everyone. My wife is from the Dominican Republic - due to the high rate of illiteracy there, they print the pictures of the candidates on ballots. I have no objections to any measures along those lines.

BUT - having bent over backwards to make it easy, I say that we should judge the ballot by the objective standard of what the ballot says, not the subjective “intent of the voter” standard.

  • Rick

Disagree, for the simple fact that “intent of the voter” can be determined on election day:

ME: “Who’d you vote for President?”
VOTER 1: “Gore, all the way!”
ME: “Who’d you vote for President?”
VOTER 2: “Bush, I need a tax cut.”
ME: “Who’d you vote for President?”
VOTER 3: “Whoever’s got that nice Jewish kid on his ticket.”
ME: “Who’d you vote for President?”
VOTER 4: “Bush, 'cuz I’ve been voting Republican for 20 years and don’t see the need to change.”
ME: “Who’d you vote for President?”
VOTER 5: “The handsome guy with the bow ties.”
ME: (holding up photos of the candidates) “Which one?”
VOTER 5: (points to Nader photo) “Oh, that one.”


Every voter has an intent; the trick is to have a voting mechanism that properly captures that intent. Having a human tabulate votes may be the best way possible, because the tabulator can reject ambiguity on-the-fly, but it isn’t practical for various reasons. Coming up with a mechnical system to do the same shouldn’t be too difficult, technically speaking – it’s just that, before the Florida hijack, modernizing voting mechanisms has been a low priority on the totem pole.

As I said in another thread, ballot errors in and of themselves are not the real problem. The real problem is a ballot design that causes those errors to disproportionately affect one candidate or another.

I think the simplest solution would be to change up the order of the candidates on the ballots. Market research firms know they have to do this to eliminate bias, so why can’t we do it in an election? It might lead to more total errors, but it would be hard to argue that the errors affected one candidate more than another.

Dr. J

What’s so unworkable about “intent of the voter?” Depends on who, or what, is determining that intent.

Intent, as defined for the purposes of law, I believe, is “the state of one’s mind at the time one carries out an action.” How can anyone, or anything for that matter, after the act, divine the state of mind of a voter when the mechanism for recording intent has failed?

Don’t forget that “tne intent of the voter” is part of the basic definition of democracy. I hope Bricker and others are being facetious about their willingness to dispense with it.

If we’re going to dispose of letting the intent of the voters decide who wins the election, we might as well dispense entirely with the election and just let the candidate with the most money win. Or whatever other nondemocratic standard you prefer.

Folks, please - let’s have a little credit here.

It’s beyond cavil that “the intent of the voter” is the vote itself, and counting votes is the way we conduct elections here in the U.S.A. I am by no means suggesting we abandon that philosophy.

What I had hoped would be clear from my post, since the phrase was in the news so much, is that I’m talking about how ballots are judged - if you wish precise and technical language, I am suggesting we adopt a standard that creates a presumtive conclusion that the intent of the voter is shown by a correctly marked ballot, and an incorrectly marked ballot is presumptive evidence of no clear intent on the part of the voter.

I know everyone agrees that somehow, a line must be drawn – if a ballot purported to vote for “that guy with the red tie,” I hope everyone would agree that it’s a spoiled ballot… and not suggest we tally up how often each candidate appeared in a red tie, and award the vote to whoever wore one the most.

I am suggesting that the line be drawn strictly: a ballot must clearly and unambiguously indicate a candidate, per ballot marking standards agreed-upon in advance of the election.

If this is an unworkable standard, let’s hear why – but let’s avoid the straw man of eliminating voters entirely, which never formed part of my argument.

  • Rick

I think that no one is suggesting that we cease all “determine the intent” but that we actually “cease determining the intent of the voter by reading tea leaves/sheep entrails/flipping a coin while looking at an incorrectly punched ballot.”

Solution: make clearer ballots, be done with it. We don’t want to determine the intent, we want to make a clear medium for intent to be conveyed that is suitable to both parties in advance, such as,
“If you punch this hole, you are voting for Mumia For President.”

We predetermine how we will count the card, and let the voter then etermine his own intent.

Alas, the intent of the voters cannot be divined except through their ballots.

Consider extensions of rjung’s conversations:

ME: “Who’d you vote for President?”
VOTER 1: “Gore, all the way!”
ME: “So, why’d you vote for Buchanan?”
VOTER 1: “Did I? It, um, must of been by accident. Yeah, it was that damned butterfly ballot” Oh, feces, he caught me in a lie.
ME: “I’ll just change your ballot to match your intent, then.”

ME: “Who’d you vote for President?”
VOTER 2: “Bush, I need a tax cut.”
ME: “So, given that his father lied about cutting taxes, you intended to vote for Browne, right?”
VOTER 2: “Um, yeah, right.”
ME: “I’ll just change your ballot to match your intent, then.”

ME: “Who’d you vote for President?”
VOTER 3: “Whoever’s got that nice Jewish kid on his ticket.”
ME: “That would be Nader, right? I heard that he converted last month.”
VOTER 3: “Oh, there’s two Jews running this year?”
ME: “I’m sure that you intended to vote for him. I’ll just change your ballot to match your intent, then.”
ME: “Who’d you vote for President?”
VOTER 4: “Bush, 'cuz I’ve been voting Republican for 20 years and don’t see the need to change.”
ME: “Well, LaRouche says that Bush is really a front for the Windsors. You didn’t intend to vote for a guy in Queen Elizabeth’s pocket, did you?”
VOTER 4: “Oh, no, of course not.” Damned uncouth colonist, always second-guessing his betters.
ME: “I’ll just change your ballot to match your intent, then.”
ME: “Who’d you vote for President?”
VOTER 5: “The handsome guy with the bow ties.”
ME: " I think that Browne is much better-looking. You must have intended to vote for him, right?"
VOTER 5: “Has he ever worn a bow tie?”
ME: “At some point. I’ll just change your ballot to match your intent, then.”
ME: (holding up photos of the candidates) “Which one?”
VOTER 6: (points to Nader photo) “Oh, that one.”
ME: “Ah, but that’s a picture of Usama ‘the Jackal’ bin Nader, who isn’t an American citizen and therefore isn’t eligible. You didn’t intend to vote for an international terrorist, did you?”
VOTER 6: “Certainly not!” I certainly did*, you American pig! Long live the Revolution!*
ME: “I’ll just change your ballot to match your intent, then.”

Note that the intent expressed through their ballots, in some cases, did not match their declared intent (at least, after my persuasion that they really had another intent). Note that others lied about what their intent was.

So: count the ballots to determine intent, yes. Hand over to others the interpretation of that intent really was, and allow them to alter ballots to match their interpretation, no. I believe that that is what Bricker is saying.

How about by giving effect to the writing on the ballot that says “I cast my vote for Pat Buchanan”? There are all kinds of ways to determine at least some voters’ intentions, even when the voting mechanism has failed. If the intent isn’t crystal-clear, then don’t count the vote. But my basic point is that the law already makes all kinds of determinations based on peoples’ intentions.

Be careful, UncleBeer, the assumption that we can’t tell what people intended is the first step down the road to deconstructionism! :wink:

Nobody’s saying that’s an unworkable standard. But it’s a standard that, unless voting methods are made 100% idiot-proof (preferably by instantly instantly informing the voter that the ballot is improperly marked), will disenfranchise a certain number of voters whose intentions are perfectly clear. Me, I fall on the side of participatory democracy. When somebody writes “Go Pat Go!” right next to a hanging chad for Buchanan, I say we count that sucker.

Criminy, people, Of course “intent of the voter” is integral to our republic (we’re not a democracy). That intent is captured by the voting apparatus, whatever it may be. What the OP is saying (and correct me if I’m wrong, Bricker)is that devining voter intent by examining an incorrectly completed ballot – after the fact and without the voter present – is an unworkable standard.

Did that dimpled chad mean a vote for candidate X, or did the voter change his mind at the last minute and decide to abstain? Was it a manufacturing defect or caused by the counting machine? Did handling the ballot cause the dimple? How much dimple means a valid vote? Must it be fully pregnant or shall we get the magnifying glass? Who’s got the micrometer?

No matter what system we use, there will always be a margin of error. When the margin of error exceeds the margin of victory there is no fair and equitable way to determine the “true” outcome. It’s that simple. The only choice then is to be arbitrary. I agree with Bricker in that, once it becomes arbitrary, no gray area should be allowed. If the ballot is completed correctly it counts, if not throw it out. Disenfranchised, indeed.

Actually, that IS a reason to delcare a contract (or law) invalid.

Now, now. Nobody is advocating abandoning the concept of “intent of the voter.” What they are doing is trying to replace that vague statement with a standard yardstick by which to measure such intent. Frankly, the procedures in Florida are guesswork at best. It’s just too subjective to inspire confidence or guarantee equal treatment. It is, however, the best we had at the time of the election and was absolutely the standard under which those ballots should have been judged. For future elections however, we really should come up with a standard that will be judged the same no matter which counting table it ends up on. I wouldn’t object if they choose dimpled chads or swinging chads, just that the standard be set clearly. Is it so hard to admit that a dimpled chad isn’t clear enough evidence to signal voter intent? Or, can we not say that every dimple is clearly considered a vote? (That, of course, allows dispute of whether a dimple exists or not, which is why I would lean toward hanging chads over dimpled.)

Just FTR, I was a Gore voter, and I do think the votes should have been counted using the voter intent standard then in place. But I really think something better needs to be established. I am sure that “intent of the voter” language would likely remain in any law that codifies ballot evalutation for the really off the wall ballots that come in with votes written on them and the like. But at least with regards to punch cards, either phase them out or write an objective standard.