Civic Trust is a (Legal) Design Problem

Civic Trust is a (Legal) Design Problem
Photo by Element5 Digital / Unsplash

Reflections on a Primary Election in a Small Town

Voting privacy booths stacked up at a polling place

June 28 was a primary election day to select governor and lieutenant governor candidates in the state of New York. I am what’s called an election inspector in Suffolk County, New York, which means when you come in to your local polling place you talk to someone like me to get you checked in and your ballot cast.

It’s a 17-hour day. We show up at 5am, set up the polling place, and we don’t leave until 10pm at the earliest, after we’ve made sure all the ballots are accounted for, secured and en route to the Board of Elections.

I worked the check-in desk, so I directly interacted with about 100 or so people who came in to vote — I got to be part of the first impression that voters formed as they came in to do their civic duty and exercise the most sacred right of a democracy.

And I’m here to tell you it sure seems like it’s designed to be a miserable experience. At the very least, a lot of people expect it to be easier to vote than the laws and regulations make it.

People aren’t sure if they’re registered to vote.

People sincerely believe they are registered to vote when they come in to a polling place. Some of them know for sure they registered to vote, or updated their registration address, because they did it two weeks ago. But two weeks ago was about a week too late.

Now, we never tell people they simply can’t vote. We do send people to a special desk to resolve the issue, usually by casting an affidavit ballot. But I’m fairly certain those missed deadlines are sufficient to keep registered voters from actually having those ballots counted in this election.

There’s a solution to this problem, and it already exists in 19 states and the District of Columbia: same day, including Election Day, voter registration.*

People aren’t sure if they can vote in a primary election, and often don’t understand why they can’t.

Many people turned up wanting to vote only to be told they were not affiliated with any party, or that the party they were affiliated with was not having a primary in their election district. Some were registered as Conservative and seemed to assume that meant they could vote in a Republican primary; some left party affiliation blank and thought that meant they were a member of the Independent Party, and like other registered Independents, thought they could simply pick a ballot and vote.

In other words, I’m not sure how many people really understand that New York has a closed primary system — which means if you are not registered as a member of one party or the other, you may not vote in a primary election.

Many of these folks thought if they declared themselves Republicans or Democrats, they’d be able to vote. But the mechanics of the iPad software in front of me said otherwise. We had to send them over to the special table, where they got a more in-depth explanation, and then, if they really demanded to vote, affidavit ballots . Those ballots will probably be rejected because they weren’t affiliated with a voter in time for Election Day — something they would have had to have done by February 14, four and a half months ago.

There are a variety of solutions to this problem. Fifteen states have open primaries, in which people can use the party ballot of their choice. Another nine states have primaries open to unaffiliated voters, meaning all the “blank”, “independent” and “conservative” voters could select a ballot from one of the two parties, and cast their vote. Another six states are partially open, allowing voters to cross party lines, though often that ballot selection is a de facto registration with the party whose ballot they chose. It’s not great, but at least it means a voter can vote.

In all, 30 states put the power to vote in the hands of the voters themselves; in 15 the power is in the hands of the parties. The remaining five states have various forms of run-off primaries (California, Washington, Louisiana, Alaska) where all candidates are listed on a single ballot, or they elect state level offices in non-partisan elections (Nebraska). We have so many ways we could structure primaries, but New York is one of the nine states that leave the decision about who gets to be a member of a party, and therefore who gets to vote in primaries, to the parties themselves.

Which brings me to another problem.

People aren’t sure why they are ‘inactive’.

I really couldn’t tell you how many people came in to vote and were sent to the special desk for an affidavit ballot because they came up as “inactive”. They couldn’t understand why this would be so, when they voted in the last two elections. But “inactive” isn’t about how frequently you vote in New York. It’s about how your mail is handled — specifically, whether a piece of mail sent to you by the elections board was returned by the post office, or whether you forwarded your mail to an out of state address, or some other reason a county elections official designates (though puzzlingly, one of the sample reasons listed in the New York Code, Rules and Regulations is “affidavit ballots”).

An “inactive” voter is still eligible to vote! In practice they have not really been “purged”. While the NY Code, Rules and Regulations say inactive voters are “not included in the poll book,” a 2019 court order requires them to be included in the poll book. Regardless, the effect is clear — they can’t be given a normal ballot, because they’re inactive, and the affidavit ballot is used both to permit them to vote, and to restore them to active status. According to federal law, if you let your inactive status go on too long — specifically, for two federal election cycles or five years — you can be purged from the polls.

States have their own methods of maintaining their registration lists, and a lot is left to the discretion of election officials. In 2016, it was discovered that over a 2 year period, nearly 200,000 voters had been purged from NYC voter rolls. It later emerged that this was no honest mistake — Kings County in particular violated federal and state laws in purging tens of thousands of voters from their rolls.

Between stories like these and political polarization, it’s no surprise the public discourse descends into conspiratorial thinking; while most concerns about voter fraud imagine “illegal voters”, a quick look at the rules and practices of election officials suggests to me the more likely source of so-called fraud is election officials changing voters to inactive status in order to suppress turnout.

For this one, I don’t have an “easy” solution — in my opinion we need to amend the constitution to include an affirmative right to vote. Today you have a right not to be discriminated against at the polling place, or not to be intimidated at the polls — but you don’t have a right to vote.

There is a bill in Congress, though — House Joint Resolution 25, introduced by Representatives Mark Pocan and Keith Ellison — that would enshrine a right to vote in the US Constitution. So you could, I guess, write to your senators and congressmen, and press candidates for Congress and the Presidency, on their position on this joint resolution, and urge them to bring it to a vote and pass it. I’ll check back in 30 years to see how that’s going.

People aren’t sure what is on the ballot.

Another problem I see is people in New York often come into the polling place asking to see a sample ballot — because they’re not sure what or who’s on the ballot, and they want to take a moment to look at it, and think about their position, or you know, google it.

Yesterday people were confused about what races they’d be voting on because New York will have two separate primary elections this year, two months apart, because of a court order related to post-2020 census redistricting. In June, we were asked to vote on our preferred candidates for governor and lieutenant governor. In August, we’ll vote on congressional and state Senate primary candidates, who were affected by the redistricting plans.

I think of myself as an informed voter. But I remember how unconfident I felt when I cast my votes in 2021. How little I felt I knew about what the laws would really do, and how futile it seemed to vote for a slate of unopposed judges, and county officials I knew almost nothing about.

Growing up in Oregon, I had the assistance of the State Voter’s Pamphlet. It was mailed to your home, or available at the post office or public libraries, and used for in-class activities in high school civics classes. It includes the summary statement of the subject of the measure, explanations of the outcome of a yes and a no vote, estimates of the financial impact of the measure, the text of the actual law, an explanatory statement from whoever proposed it, and also arguments in favor and in opposition, all signed.

But New York doesn’t do any of that. Voter advocacy groups and local papers might print something resembling a voter guide, but the state stays out of it.

Last November there were multiple ballot measures that people could vote for or against. In New York, the ballot only includes a top line summary of the measure, a few lines with very little detail, and then asks if you approve the proposal. Ballot Proposal 1 — to allow for same day voter registration — was 69 words long. The abstract was 10 times longer. The full text of the law was nearly 5000 words long. Historically, New Yorkers approve 3 out of 4 ballot proposals; in 2021, voters rejected 3 out of 5, including Ballot Proposal 1.

Want voters to be more informed? Get the Secretary of State of the State of New York to take some responsibility for informing them, as the State of Oregon and its counties have done.

People aren’t sure they can trust the process, or be trusted by it.

People assume it should be easy to vote — but they also mistrust the process.

  • People think they have to show photo ID, are convinced everybody used to have to show ID to vote, and that it was ever thus. Fact is, driver licenses with photo identification weren’t introduced in New York for all drivers until 1984 (to make it harder for people under 21 to drink). And I’ve yet to find any record of ever having to show photo ID at a polling place in New York. You show ID to register, and then you generally don’t need ID at the actual polling site. But here they are, thrusting their driver license at me, and I have to refuse to even touch it.
  • People worry their signatures won’t match whatever is on file, and some of the poll workers make people redo their signatures so they match your “best legal signature”. Most of the time, as people use a cheap stylus to sign their names on an iPad, they worry they’re not matching their registration signatures — but most of the time, it’s a very close match. People just don’t really know what their signatures are “supposed to” look like, so they worry they’ll be denied their vote if they mess it up.
  • People start to get a little panicked when their names don’t come up right away. The biggest culprit here is double-barreled or hyphenated last names. The database doesn’t seem to handle hyphens. So people may be listed under only one of their last names, or a concatenation of names. The database is an unholy mess, but as we’re trying to figure out which combination of mashed up or separated words will help us find the voter, you can feel people starting to get anxious that somehow they’ve been purged from the rolls. And then they are so relieved when we find them.

It’s not just the voters. Election inspectors spend a lot of the day and all of the opening and closing period worrying about getting it right. Poll workers, in my experience, take the sanctity and security of people’s votes seriously. Everyone is well intentioned and wants to do a good job. Nobody wants to give the public a reason to doubt the security of the election. We’re living in a world now where voters routinely thanked us for doing dangerous work. In our little fire station there didn’t seem to be much threat, but Out There, the threat is real.

It’s clear a lot of American life now is caught up in various forms of security theater — we love a good moral panic, don’t we? — and elections are just another arena. But a lot could be done to make the process look less janky and complicated, and to more clearly communicate with people exactly what is expected of them at the polling place, rendering fewer obvious points of failure.

Websites, forms, and messaging aren’t enough.

Doing this kind of work, it’s clear the usual domains of our UX colleagues — website and app design, forms and way-finding systems, messaging clarity — are not enough to make the experience of voting match people’s expectations. We need better software, ballots and signage, for sure — but these systems are the products of laws and regulations (and court orders) designed by legislatures and lobbyists.

It was tempting to think the people who had their attempt to vote frustrated were simply ignorant, to blame the education system or the voters themselves. But I think this lets the designers of the system off the hook. It’s clear people want — expect! — it to be easy to vote (for varying definitions of “easy”). Yet it’s equally clear political parties, lobbyists and legislators want it to be just hard enough.

To move towards a world where the mental models of elections boards and voters start to align, we need to actually reckon with the places where elections experienced are designed: state legislatures.

Maybe we need a design lobby that demands legislators and rule-makers consider the actual experience of civic participation. Perhaps we need more service designers working in legislative offices. For sure we need a practice of legal design that considers the actual lived experiences of a law or rule — how it will come to life, and how people will take it up or adapt to it. People should know what to expect, since, to paraphrase Tom Stoppard, that is what they are prepared to believe in.

* Ironically, voters rejected a ballot proposal in 2021 to allow same day voter registration in New York, chiefly because its opponents bothered to campaign against it, and its proponents said nothing.