Attorney General's Opinion

Attorney General, Richard Blumenthal

January 13, 2006

The Honorable Susan B. Bysiewicz

Secretary of the State

30 Trinity St., PO Box 150470

Hartford, CT 06115-0470

Dear Secretary Bysiewicz:

Thank you for your letter of December 23, 2005, seeking my opinion concerning issues relating to your on-going efforts to procure voting machines that comply with the requirements of the federal Help America Vote Act (“HAVA”).  Upon discussion with your office, your specific inquiry has been clarified and narrowed to the following question: Does Connecticut state law require that electronic voting machines utilize a “full face” ballot? 

Neither the Connecticut General Statutes nor any regulation explicitly uses the term “ full face ballot” or specifies its use for any kind of voting machine.   Nor has this office or the Secretary of the State (“Secretary”) ever issued a formal opinion requiring that voting machines utilize a full face ballot.¹  The Office of the Secretary has long required full face ballots for lever voting machines, and has on occasion informally advised the public of this view.  In light of Connecticut’s longstanding voting practices and use of lever voting machines, this interpretation was reasonable and sensible.²

We find nothing in current law, regulation or practice that requires the full face ballot interpretation to be applied to electronic voting machines, which are substantially different in format and function.  Significantly, the recent passage of Public 05-188, spelling out detailed requirements for electronic voting machines, does not include a requirement for full face ballots.  This omission leads directly to the conclusion that the legislature did not require full face ballots in such machines.  The legislature may always add this requirement if it deems it appropriate.

By way of background, a “full face” ballot simultaneously displays to the voter, on a single page or screen, all the candidates for all offices.  Such a ballot is distinguished from a “vote by office” ballot, which presents the candidates for each office on a separate page or screen.   For example, a vote by office ballot would present all the candidates for Governor on one page or screen, followed by all the candidates for Lieutenant Governor on the next page or screen, and so on.  

We understand that your office based its informal advice requiring full face ballots for lever voting machines on its interpretation of Section 9-250 of the General Statutes, as well as on Connecticut’s historical election practices. 

In determining the meaning and scope of Section 9-250 and other statutes as they may relate to electronic voting machines, we must look to each statute’s language, history and context.  See, e.g., State v. Patterson, 2005 Conn. Lexis 531 (Conn. December 20, 2005)(“In construing statutes, our fundamental objective is to ascertain and give effect to the apparent intent of the legislature.  In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.")(internal quotation marks omitted); School Administrators of Waterbury v. Waterbury Financial Planning and Assistance Board, 276 Conn. 355, 356 (2005)(“The process of statutory interpretation  involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.”)

The most relevant statute, originally enacted over a century ago, has no express reference to “full face” ballots.  See Conn. Gen. Stat. §9-250. Instead, it requires in relevant part that “the names of the political parties and party designations shall be arranged on the [voting] machines, either in columns or horizontal rows as set forth in Section 9-249a [dealing with the order of appearance of parties and candidates], immediately adjacent to the column or row occupied by the candidate or candidates of such political party or organization.”  Id.  Section 9-250 has been amended many times to reflect changes in voting practices.  It was last revised in 1987, prior to the widespread emergence of electronic voting technology. 

The Secretary’s interpretation of Section 9-250 to require full face ballots on lever voting machines was undoubtedly a product of several historical election practices.  Prior to 1909, political parties distributed their own ballots, listing just their own candidates, which were filled out by voters either at the polling place or elsewhere and delivered to polling officials.  See Connecticut General Statutes, <st2:country-region>Ch.</st2:country-region> 104, § 1632 (1902 Stat. Rev.)(“Ballots; How Furnished; Form”).  This system was considered prone to fraud, intimidation and the disparate treatment of candidates.  In 1909, Connecticut adopted the so-called “Australian ballot,” which required that “the names of candidates for all offices to be voted for in one and the same election shall be upon one ballot,” which was prepared by the Secretary of the State and cast in secret by the voter at the polling place.  See Connecticut General Statutes, Chapter 250, House Bill No. 161 (effective August 24, 1909)(“An Act Concerning The Preparation, Form, and Use of Ballots).³

A full face ballot requirement is compatible with Connecticut’s long-standing use of lever voting machines, which are designed to provide voters with a single list on the front of the machine containing all candidates for office.   Lever voting machines were first introduced to Connecticut in the late 1930s and have been used by voters here almost exclusively for decades. Inclusion in Section 9-250 of references to columns and rows reportedly coincided with the adoption of lever voting machines, which are designed for a column and row presentation. 

There is no requirement in Section 9-250 of any particular form of voting machine.  Through its latest amendment in 1987, this state has utilized lever voting machines almost exclusively. Thus, the Legislature was acting against a very different factual backdrop when it last revisited Section 9-250 in 1987. 

In the 2005 legislative session, the Legislature for the first time explicitly addressed the use of electronic voting machines and mandated detailed requirements for such machines.  In Public Act 05-188, the Legislature established construction requirements for “[a]ny direct recording electronic voting machine approved by the Secretary of the State for an election or primary held on or after July 1, 2005[.]”  Public Act 05-188 at § 7.  These requirements include: contemporaneously produced permanent paper records of individual votes, a detailed process for individual verification of the accuracy of the selection before the vote is cast, the opportunity for electors to make corrections prior to the recording of the vote, a unique identifier that preserves the secrecy of the individual elector’s ballot, the availability of an audio description of the vote at the time it is made, a machine-generated permanent paper record of each vote after the close of the polls, Public Act 05-188, Section 7 (d), and a detailed process for the canvass and, if necessary, recanvass of the vote recorded by electronic voting machines. Public Act 05-188, Section 8.  This careful and detailed list of requirements for electronic voting machines lacks any reference to the utilization of, or capacity to use, full face ballots.⁴ 

We conclude that the legislature did not intend to require full face ballots in electronic voting machines. This conclusion is strongly supported by the history of the voting process in Connecticut, the absence of a specific requirement in Public Act 05-188 that electronic voting machines utilize a full face ballot, and the lack of any requirement in Section 9-250 or any other statute or regulation of a full face ballot requirement. State v. Patterson, 2005 Conn. Lexis 531 (Conn. December 20, 2005).  The requirement of full face ballots for lever voting machines is an interpretation by the Secretary of the State’s office, which was never promulgated in regulation or approved by the legislature. The format and function of lever voting machines—distinctive and different from newer technology—logically led to a full face structure. The full face interpretation may be amended by your office if you find it impractical for use in electronic voting machines. See Conn. Gen. Stat. § 9-3. The legislature, of course, has the final authority to require such a ballot if it deems it advisable and feasible.⁵

I hope this opinion responds to your question.  Please do not hesitate to contact me if I can be of further assistance on this or any other matter.

Very truly yours,

RICHARD BLUMENTHAL

¹ Your office has promulgated a regulation concerning the form of ballots, which does not explicitly require a full face ballot.That regulation requires as follows:

In an election, the ballot shall be clearly displayed in the proper format, so that the names of the parties arelisted, as required by Conn. Gen. Stat. § 9-250, with identifiable buttons or other markings associated with each candidate's name, the office for which he is running and the political party or organization which nominated him. In a primary, the names of candidates shall appear on the ballot in accordance with Conn. Gen. Stat. § 9-437. The order of the parties, offices and candidates on the ballot shall be in conformance with law.

 

 

Reg. Conn. State Agencies  9-241-11.

 

² We understand that this interpretation has been applied consistently only to lever voting machines. While paper absentee ballots usually conform to the full face format, when the list of offices and candidates is lengthy, a ballot consisting of more than one page, divided into columns and rows, has been permitted.

³While the legislative history surrounding the 1909 statutory revision is not available, the likely legislative purpose in adopting the Australian ballot was to combat the evils of party-issued ballots by requiring that a single ballot from an official  source list all parties’ candidates.  See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 356 (1997) (“[A]fter the 1888 presidential election, which was widely regarded as having been plagued by fraud, many states moved to the ‘Australian ballot  system.’ Under that system, an official ballot, containing the names of all the candidates legally nominated by all the parties, was printed at public expense and distributed by public officials at polling places.”)

 

⁴ The legislative history of P.A. 05-188 includes no discussion of full face ballots for electronic voting machines.

⁵ Express statutory requirements applicable to all forms of voting, such as those specifying the order of parties (Section 9-249a) and offices (Section 9-251) on the ballot, the names to appear on the ballot (Section 9-250), and other technical requirements would apply to electronic voting machines.  This opinion only addresses the full face ballot issue, which is not expressly required by any statute or regulation, and only arises from a longstanding interpretation of the Secretary of the State’s office as applied to lever voting machines.

 

 

 

Back to the 2006 Opinions Page
Back to the Opinions Page