Of Human Error and Voting By Mail, or, to Get All Modern on You, Customer Experience Issues with Ballot by Mail

I got a call the other day from a family member in Texas who had a question about her mail-in ballot.

Briefly, she had filled in her choices and put the ballot in the “big” (“carrier”) envelope to mail it back to the county election administrator, but then realized that she had an extra envelope left over — the smaller white “security” envelope that is intended to preserve the anonymity of the vote.

Worried, she opened up the big (“carrier”) envelope in order to retrieve the ballot so that she could put it in the security envelope, but in opening the big envelope, she tore the seal that bore her signature across the flap of the envelope. Now she was afraid that she had irretrievably invalidated her vote.

I. WHEN WE MAKE MISTAKES, IT ISN’T ALWAYS OUR FAULT

When something breaks or goes awry, do you blame yourself? In that instant when I realized our washing machine wasn’t spin-drying clothes, or when our car was stalling out at stop lights, I did momentarily interrogate myself. “What did I do wrong?” I’ve felt that stab of self-doubt and recrimination when my phone died, or when I lost my ATM card.

But sometimes there are systems and processes that invite and encourage the accumulation of errors, independent of any basic competence or mindfulness that we might apply to the tasks we attempt. Some processes are particularly and almost comically byzantine. We encounter convoluted Kafkaesque nightmares of contradictory and misleading expectations and commands that seem almost intentionally designed to lead us astray, and then leave us feeling dumb and guilty when we err, as if our mistake is some reflection on us and our value as a human being, and not merely a consequence of the fiendish trap that has been laid for us.

Of course, the Texas Election Code is a devil’s garden of baroque obfuscation, and voting by mail is not exempt from its systemic design problems.

II. AN EMBARRASSMENT OF INSTRUCTION, ADVICE, AND EXHORTATION CRASHES INTO OUR BRAINS

For those of you who have never requested a ballot by mail or voted absentee, here’s what the process looks like:

First, not everyone is qualified to vote by mail. In Texas, to qualify for a ballot by mail, a person has to be (1) absent from the county on Election Day and during early voting; (2) over age 65 or disabled; or (3) confined in jail, but eligible to vote. (My relative falls in (1) or (2) but not (3).)

Even if one is eligible to vote by mail, the process is not automatic. One must submit an application for a ballot by mail to the appropriate county’s early voting clerk responsible for the election.

After receiving a valid application for a ballot by mail (and assuming such an application is received not later than the eleventh day before the election (i.e., by no later than October 28, 2016 for the November 8, 2016 election), the early voting clerk for your county will send out a “kit” of materials for the voter to read through and assemble to return.

The kit (which is mailed out in its own special envelope) consists of a blank ballot, something called a carrier envelope, something called a ballot envelope, instructions, one or more advisories and notices (including, potentially, one or more of the following: a statement of residence, a notice (for voters over 65 or disabled) regarding the status and condition of the voter’s annual application for a ballot by mail, and a notice regarding identification for first-time voters), as well as a list of designated write-in candidates.

The thing called a “carrier envelope” is the “big” envelope that the voter will use to mail in the completed ballot, along with whatever else it is that the voter may be expected to mail back to the early voting clerk, such as a statement of residence, a statement confirming the correct mailing address for purposes of administering an annual application for a ballot by mail, and photocopied identification (for such voters as have to submit that material). The carrier envelope has suitably terrifying blocks of dense text to accommodate the regulation of mailed-in votes, and is printed in such a way as to ensure that the voter’s signature extends across the adhesive flap sealing the envelope.

The thing called a “ballot envelope” may either be an ordinary blank envelope, or may be a more elaborately printed envelope that announces itself boldly as a “ballot envelope” with its own collection of dense text. In either case, the ballot envelope is the envelope that is designed to hold the completed ballot.

So the voter is expected to fill out the ballot, put the ballot in the “ballot envelope,” seal the ballot envelope, put the ballot envelope in the “carrier envelope,” possibly sign an affidavit of residence, possibly copy a valid form of identification (if a first-time voter), put the affidavit and I.D. (if required) in the carrier envelope, seal the carrier envelope, sign the carrier envelope, and (if necessary) have the person who assisted the voter or served as a witness on behalf of the voter to sign the carrier envelope.

The thing is … the instruction sheets in the “kit” multiply and proliferate in potentially confusing ways. Some information is duplicated or separated into separate forms used for specific purposes. Not every voter will see the same forms (only voters who have moved or who have not voted recently will likely see a “Statement of Residence,” and only new voters are likely to get a notice regarding I.D.). And the blocks of text start to blend together. NOTICE. WARNING. DO NOT. REMEMBER. INSTRUCTIONS. INSERT. MUST. PER SECTION. AS REQUIRED. WARNING. WARNING. WARNING.

So … things fall apart. It is extremely common for things to fall apart. In fact, some forms of falling apart are intrinsic to the process of voting by mail.

1. More than one ballot per envelope: It isn’t unusual that two or more voters living under the same roof will vote by mail in the same election, and often these voters will understandably short-circuit a few steps in the process by putting their ballots into the same envelope.
2. Forgetting the statement of residence affidavit: When such an affidavit is called for, it sometimes gets misplaced.
3. Putting the ballot directly into the carrier envelope, instead of the ballot envelope: This happens so often; so, so often. This error doesn’t in any way affect the validity of the vote, but means that the voter has given up the anonymity usually ensured when the early voting ballot board opens up the carrier envelopes and dumps out the envelope contents.
4. Anxious reopening: This is common too. You voted. You put everything in the envelope. Right? Or did you? Oh god! You voted for the wrong person! Or you forgot to include something. Maybe you can just c-a-r-e-f-u-l-l-y peel open the envelopes to fix your mistake.

RRRrrripp! Dang! Now what?

Some errors are recoverable, and some are not, depending on where they occur in the process. Generally one hopes that common sense on the part of the election officials will prevail to give effect to the voter’s intent, but sometimes that isn’t possible.

If an early voting ballot board receives a carrier envelope that’s been ripped open and resealed, the concern is that the board may interpret the carrier envelope to have been tampered with by someone other than the voter, and may decide not to count the vote on the grounds that the ballot was compromised.

What if the voter includes a long, handwritten and heartfelt explanation? “I was rushed!  I tore the envelope open to doublecheck that I hadn’t done anything wrong — It’s really my vote, I swear!”

Eh … who knows? At least such a note provides context — and it will get read by a human being who can exercise independent judgment to forgive the mistake and count the ballot. Or not.

III. MY SUGGESTION TO MY CALLER: VOTE IN PERSON

In the face of error in assembling the ballot for return to the early voting clerk, one option for the mail-in ballot voter is to cancel the application for the ballot by mail and vote in person.

Which … okay. Let’s agree that this is not an ideal solution. It isn’t even possible in some circumstances — what about the person whose only realistic option was to vote by mail? Maybe it’s someone who is far away from home, or who is physically incapable of voting in person. What comfort is it to the person who cannot vote in person to suggest that an error in the mail-in ballot process can be fixed at the polling place or in the early voting clerk’s office?

Given how impractical my suggestion was for fixing the problem of a torn-open carrier envelope, why did I bother making the suggestion in the first place? Because one option (mailing a visibly tampered-with carrier envelope to the early voting clerk) would create a measurable and real risk that the early voting ballot board might (out of an abundance of caution and nervousness about “fishiness”) resolve not to count that ballot, whereas if the voter canceled the application and voted in person, the ambiguity raised by the torn envelope would be eliminated.

So again, my advice was fraught with all sorts of imperfections and weighing of options and appearances. Practically speaking, it might be easier for the voter to just write a big long note to the ballot board, (“Please, please, please count my ballot!”), drop the note in the envelope, tape everything shut, mail the whole mess in, and be done with it.

From my perspective, though, I thought, “why risk it?” I mean, why risk that the vote might not be counted? My aversion is with respect to the unknowable judgment of the early ballot board judge, who must weigh the integrity of the ballot against the common-sense understanding that people will often tear open their own carrier envelopes.