The grammar of forms and the Ohio Supreme Court
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One of the several controversies that have recently arisen over voting procedures in Ohio concerns applications for absentee ballots. Although an official Absentee Ballot Request Form is available from the office of the Ohio Secretary of State, the law does not require this form to be used. For some reason, the McCain campaign created its own inferior form, which among other things omits instructions, the warning that false statements are a felony, and space for the requestor's telephone number and email address. The McCain campaign form has a checkbox next to the statement: "I am a qualified elector and would like to receive an Absentee Ballot for the November 4, 2008 General Election". Ohio Secretary of State Jennifer Brunner, a Democrat, ruled that applications in which the checkbox was not checked would be rejected. In spite of her offer to allow rejected applicants to correct the omission, a lawsuit was filed, resulting in a decision by the Ohio Supreme Court, which ordered [pdf] that absentee ballot requests should be honored even if the checkbox was not checked. (The Court's order contains a photograph of the form in question.)
Although in general I am wary of the use of technicalities to prevent eligible voters from voting (even Republicans), I find the reasoning of the Ohio Supreme Court to be deficient in linguistic terms. The Court correctly observed that the governing law, Ohio Revised Code §3509, merely requires that the application contain several components.
The application, subscribed and sworn to by the applicant, shall contain all of the following:
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(2) A statement that such person is a qualified elector in the county;
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The Court took the position that since the statute says nothing about checkboxes and that the McCain campaign form contains "a statement that such person is a qualified elector in the county", the form satisfies the legal requirements whether or not the checkbox is checked. I disagree with the Court's conclusion that the form contains the requisite statement.
Now obviously I do not dispute that the words "I am a qualified elector" are printed on the form. Rather, I deny that a person who has not checked the box can be considered to have uttered these words. The Court considered the check box to be an extraneous decoration, when in fact it is just as much a communicative element of the form as the text. There is a grammar of forms just as there is a grammar of sentences. A check box means "ignore the associated text unless I am checked". A form containing a section associated with an unchecked check box must be construed without that section.
The Court argues further that the only reason to fill out the form is to request an absentee ballot, and that this somehow carries with it the affirmation that the requestor is qualified to vote. This ignores the fact that it is perfectly possible for someone who is not qualified to vote to attempt to obtain an absentee ballot, and that the legislature, in its wisdom, expressly required an affirmation that the requestor is a qualified voter in the hope that this would deter fraud. By failing to recognize that checkboxes are meaningful, the Court has undermined the intent of the legislature.
AJD said,
October 7, 2008 @ 1:10 am
I suppose the chief question is, from a design standpoint, would it be unambiguously clear to the user that the box next to that sentence was to be interpreted as a check box and not as a decoration? Looking at it on the PDF, I don't think it's that obviously a check box.
Daniel Barkalow said,
October 7, 2008 @ 1:26 am
Given the change to not endorse that statement, I'd expect any well-informed citizen of the United States hoping to vote in a presidential election to be surprised and leave that box unchecked. Everybody knows that Ohio will only get 20 electors, and nobody will be qualified to be one of them until after the general election. Whose bright idea was it to call the people who (technically) vote for electors electors?
SteveDT said,
October 7, 2008 @ 2:09 am
The case law quoted by the court instructed it to avoid "unduly technical interpretations" of the election laws that could impede free elections. Rejecting the applications would have had the effect of denying absentee ballots to a least some people who intended, by mailing in the applications, to represent that they were qualified electors and therefore were entitled to a ballot.
The interpretation of the box as a communicative element that turns the words into a statement has merit, but it is also an "unduly technical interpretation" that the court wanted to avoid. Many cases reject perfectly good linguistic arguments because they are contrary to one or another rule of interpretation. There are many such rules and almost always one that supports the desired result, whatever it may be.
Although checking the box would have made it even clearer that the words on the form were intended to be a statement, the McCain campaign, in its incompetence, failed to provide instructions that the box should be checked for that purpose (as you note). I think the court was correct in deciding not to penalize the voters just because the campaign did such a sloppy job.
Marc said,
October 7, 2008 @ 2:24 am
I disagree with your interpretation of the ruling. The court did not say that the checkbox has no meaning. In ¶ 21 the court says that the since the law does not expressly require a checkbox to be present, the Secretary of State cannot require that it be checked. That is, having to make a checkmark amounts to an additional requirement for registration, and the Secretary has no authority to add to those requirements. The court seems to implicitly agree that the checkbox has meaning.
By extension, and this is my speculation, the court might have made the same ruling had the form contained the instruction "Check this box to affirm the following statement" just above the qualified-elector statement. In that case, there would be no doubt about the meaning of the checkbox.
Christopher said,
October 7, 2008 @ 4:24 am
@AJD
I completely skipped the entire "qualified elector" bit under the white-on-black "Vote-By-Mail", even after I had been primed to look for it. However, the checkbox is clearly a checkbox (aren't personal aesthetic opinions such fun?). Granted, the over all design of the form makes it very easy to skip said checkbox.
@Daniel Barkalow
The official form has the following statement:
"I hereby declare, under penalty of election falsification, I am a qualified voter and the statements above are true to the best of my knowledge and belief. I understand that if I do not provide the requested information, my application cannot be processed."
But, as the entry states, the term used in the ORC is "elector". I too find the mismatch odd.
As an absentee Ohio voter (elector?), I know that the official form works. I got my ballot last Friday.
Torrilin said,
October 7, 2008 @ 7:19 am
The conventional format for "I want this action carried out" is for the person filling out the form to sign it with their signature. This works with the IRS, various state DMVs, and a wide range of other state and federal offices. So if the McCain form carries similar wording, it would be very easy for the user to miss a checkbox or almost any other special paperwork.
Going with a strict interpretation is *meant* to put roadblocks in front of a voter who really did mean well.
Sadly, there is no such thing as a language of form design. Forms from the same government or business office will ask for data in wildly different ways, have a different visual design, and will often make use of tricks that increase the odds that a form is filed out incorrectly. (a particularly notable design was a carbon paper booklet form, with critical portions on the wrong side of inner layers of the booklet)
Tristan McLeay said,
October 7, 2008 @ 11:28 am
I don’t think the checkbox is adequately clear enough to constitute a checkbox. To me it just looks like it might as well be a bullet. I'm much more used to official forms saying “ check one of the following ” or some such like that. Note the similar boxes below logically don't need to be checked either ; if you write your Ohio drivers licence number, then that line’s activated, if you write your social security number, then that's activated, and if you do neither then somewhere in the same mail there’ll be a copy of whatever they’re after. The logical place for the statement, of course, is right above the signature line, which should be the very last thing in the form.
Oskar said,
October 7, 2008 @ 12:22 pm
One thing I think everyone can agree with is that the design of the form is awful! When I read it, I completely missed the important part of the form, and even I knew that I was supposed to be looking for it. My eyes went straight to the checkboxes at the bottom (which is where that line should be, it makes no sense to put it at the top).
To me, that line of text looks much more like a headline than a statement that you are supposed to affirm. I think it is extremely unclear whether or not you should check it even if you do notice it (and it is very easy not to).
The fact is that this badly designed form was incorrectly filled out by many people, through very little fault of their own. No one should lose the ability to vote because they misunderstood this form, especially as the very act of sending it in affirms that you're an elector (as the court pointed out). If it's fraud to check that box, it is fraud to send the thing in.
Andy Hollandbeck said,
October 7, 2008 @ 3:26 pm
If the statement had been printed, but the checkbox itself omitted, would there have been any problem?
Notice also that there are other checkboxes. If one were to enter one's driver's license number without checking the box, would it be refused because elector had not positively identified a number as his or her driver's license number?
Ben Teague said,
October 7, 2008 @ 4:19 pm
Elector vs. elector: Might as well object to "electoral college" because it doesn't field a football team. The meanings of both words change with context. What's the problem? As far as the secretary of state is concerned, I am an elector; when it comes to the choice of the president, which is above the S of S's pay grade, I'm not. This is a needless quibble.
Brett Dunbar said,
October 8, 2008 @ 11:04 am
Provided that it is clear that the elector intended to request an absentee ballot then it is sensible to so interpret it as a valid request. A minor and obvious error in filling in the form should not be used to frustrate the intent of the elector, provide that the intent can be clearly determined. After all if you didn't want an absentee ballot paper you wouldn't have submitted a request form in the first place, so the fact that the form has been submitted indicates clear intent. The court overruled a rather pedantic attempt to frustrate the elector's intent.
Terry Hunt said,
October 9, 2008 @ 12:05 am
Speaking from across the pond (so I have no pitbull in this fight) I would never have interpreted that first square as a checkbox. To me it's a bullet point, just as are the other three squares further down that, as Tristan Macleay observes, have no logical checking requirement: moreover, as checkboxes they seem to me unusually small. I've sometimes used such a square for bullet pointing myself, and I seem to recall that it's been one of the available styles of bullets in at least one WP program (Word?).
Given the lack of any mention of a checking requirement, I'd seriously question that the designer of this non-official form ever intended one, though given the other omissions from the text of the official version, and the generally rotten layout, I concur with that designer's incompetence and also posit possible subsequent committee meddling.
Here in the UK, some official forms positively assume that one is confirming a pre-printed statement by signing and dating below it in the places indicated. This seems to me a not unreasonable interpretation of this botched form, so I disagree with Bill Poser's denial on linguistic grounds that, "a person who has not checked the box can be considered to have uttered these words." Of course if, as several of we commenters suspect, the snark wasn't really a boojum, the argument fails anyway.
I'd have thought a legal argument could have been made that the substitution of "elector" for "voter" – pointed out by Christopher – itself invalidated the form, but mostly I'm slightly boggled that Ohio's procedures recognise anything but the official form in the first place. From what I've read about US elections on various blogs in recent years, UK electoral procedures seem to be much more tightly regulated – then again, we don't get to vote for either our ceremonial or our executive heads of state as such, so I suppose it's horses for courses.