|Ballots and Voting Systems|
By Dana R. Bennett
The Constitution of the State of Nevada requires that "all elections by the people shall be by ballot" (Ad. 2, § 5), but it does not define a ballot.
This provision has never been challenged. The Constitution also vests, in the Senate and Assembly, the general legislative authority of this state (Ad. 4, § 1) and specifically empowers the legislature to pass laws regulating elections (Art. 4, § 27) and "the manner of holding and making returns of the same" (Ad. 2, § 6). In 1895, the Nevada Supreme Court upheld the constitutionality of state laws that require voters to mark their ballots in a certain way and comply with other conditions.
A brief review of the early legal history of ballots in Nevada reveals that the legislature has consistently exercised its constitutional authority to adopt state election laws as necessary. In its second session, the legislature passed a law that required a voter to submit to an election inspector "a piece of paper, on which shall be written or printed the names of the persons voted for, with a pertinent designation of the office which he or they may intend to fill. Said ballot may be open or folded, as the voter may choose" (Chap. 107, Statutes of Nevada 1866). There was no requirement for an entity, such as a county, to produce a printed ballot nor were voting booths provided. Voters simply wrote their choices on a piece of paper, probably before they arrived at the polling place, and handed it to the election inspector, who, upon verification that the person was eligible to vote, deposited it in the ballot box.
The first reference to an official ballot came in the next comprehensive election law, which was approved in 1873. Among many other provisions, this law required each board of county commissioners to proclaim the color, size, form, and texture of the ballots to be used at the election. Ballots were to be "of sufficient width to allow names to be written thereon" (Chap. 121, Statutes of Nevada 1873), but were not required to be preprinted.
Such open and vague voting laws certainly provided plenty of opportunity for voting fraud. Sam Davis, noted chronicler of Nevada history, explained that "each party had a separate ticket, and it was an easy matter to hand a man a ticket and see that he voted it." Davis also provided the following description of voting during the early years of statehood:
In the palmy days of the Comstock there was always more or less rough work connected with politics. A primary election was frequently an affair with all the elements of a riot. Roughs were hired "to preserve order," and other roughs and heelers engaged to keep the other side orderly. Money flowed like water on those occasions and what was usually designated as the "graveyard vote" was called into requisition by both sides.
It was thought nothing amiss to resurrect the dead and vote them by the wholesale. So long as the memory of the departed was respected by not voting him except in proper alignment with the party with which he affiliated in his lifetime, the ethics and traditions were considered as having in no way been violated.
During the elections of 1888, such abuse and fraud were so rampant and obvious that legislatures throughout the country began to reform their election laws to provide for a secret ballot. By 1891, most states, including Nevada, had adopted the Australian ballot system, which requires the government (as opposed to political parties or other entities) to print and distribute election ballots. A ballot is available only at the government's official polling place and is given to a voter for a short period of time to be marked alone and in confidence, usually in a booth at the polls, but within view of election officials to whom the ballot is returned. Thus, a vote is secret, and the information cannot be used to punish or reward a voter.
Nevada's 1891 legislation (Chapter 40, Statutes of Nevada 1891) required each county clerk to have official ballots printed on paper provided by the Secretary of State at public expense. A watermark was to be on the outside of the ballot and visible when the ballot was folded; the mark was changed for each election. The law mandated that the ballots be numbered and also described the contents of each ballot; voters were not allowed to write in a candidate. In addition, county commissions were directed to provide private booths into which people would take their ballots for marking. Solo occupation of the booths was required, and a time limit was established at five minutes. The legislation instructed voters to mark, with a black lead pencil only, an "X" next to those names and questions for which they wished to vote, then fold the ballot and return it to the election official, who would re-verify the voter's name and the ballot's number, note that the correct watermark was showing, and drop the ballot in the ballot box.
Finally, this measure required the printing of sample ballots to be made available to voters at each office of the county clerk for five days preceding an election. A sample ballot was also provided to each voter on election day, and voting instructions were posted.
Virginia City resident and prolific diarist Alfred Doten commented, after the general election of 1892, that the new system had been "put into force for [the] first time and proved a grand success."
Ten years later, the 1901 Legislature required each county commission to provide a certain number of rubber stamps that marked "X" and black ink pads for voters to take into booths for marking ballots (Chap. 100, Statutes of Nevada 1901). In 1909, the legislature added a primary election law, which was similar to the general election provisions except that ballots were separate for each party and on different colored paper designated by the Secretary of State.
The legislation provided more directions about the size, type, wording, and style of ballot and specified the following instructions: "To vote for a person whose name appears on the ballot, stamp a cross (X) in the square at the right of the name of the person for whom you desire to vote." The measure also included an example of a ballot and required that sample ballots be distributed to voters at least 10 days before the election and published in the local newspaper.
In addition, the 1909 law defined the "method of voting": "Any elector desiring to vote at any primary election on behalf of any party shall give his name and address to the ballot clerk, and announce the name of the political party for whose candidates he intends to vote, the ballot clerk shall immediately announce the same:' Any challenge could be made at this time. If not challenged, the ballot clerk would hand the voter a ballot and instruct him (in 1909, all voters were male), if necessary, on the folding of it. The voter then would go to a private booth to mark his ballot with the rubber stamp, which at this time was kept in the booth. The law continued: "When a voter has stamped his ballot he shall fold it so that its face shall be concealed and only the printed designation on the back thereof shall be visible, and hand the same to a member of the board in charge of the ballot box. Such folded ballot shall be placed in the ballot box in the presence of the voter, and the name of the voter checked upon the register as having voted."
From 1911 to 1951, the Nevada Legislature passed various measures concerned with the entire election process, but the manner of voting and the description of ballots remained essentially the same. In fact, much of the language approved by the 1909 Legislature can be found in the current version of Chapter 293, "Elections," of Nevada Revised Statutes (NRS). Some of the amendments made included the first authorization to use absentee ballots (1921) and the creation of mailing precincts (1923).
In 1951, the first measure addressing the use of voting machines in elections was approved (Chapter 136, Statutes of Nevada 1951). This bill outlined the procedure for examining, approving, and using a mechanical device to cast and count votes and authorized county commissions to approve specific voting machines. Included in this legislation was the first written definition of a ballot.
When NRS became the official compilation of Nevada laws in 1957, election laws were placed in Title 24. The 1951 legislation provided most of Chapter 303 of NRS, which was titled "Voting Machines and Other Voting Devices." In 1960, the legislature restructured the state's election laws, encompassing and expanding much of the language approved by earlier legislatures. In particular, the Secretary of State was given sole authority to approve voting machines. The provisions of Chapter 303 were also condensed and moved into Chapter 293 of NRS.
In 1971, the sections of NRS Chapter 293 pertinent to voting machines were moved to a new Chapter 293A, titled "Voting Machines," and expanded. Four years later, Chapter 293B of NRS was created to authorize specifically the use of punchcard systems. In 1977, Chapter 293A was repealed as part of a package of bills from an interim study on state election laws. Testimony from the Office of the Secretary of State indicated that the provisions being removed referred to "mechanical standup machines" that had been used in Clark and Washoe counties. These provisions conflicted with the laws governing punchcard systems; their removal would streamline election laws concerning voting systems. Under this legislation, punchcard systems and other automatic voting machines were allowed. Testimony further noted that counties were in the process of moving away from paper ballots and toward mechanical systems.
By 1985, not one county in Nevada was using paper ballots in primary and general elections. That year; the Nevada Legislature greatly expanded Chapter 2938 and retitled it "Mechanical Voting Systems." Such a system was defined as one whereby a voter may cast his vote on a device which mechanically or electronically compiles a total of the number of votes cast for each candidate and for or against each measure voted on, or by punching a card which is subsequently counted on an electronic tabulator, counting device or computer." Ten years later; in 1995, the legislature amended these provisions by authorizing and regulating computerized voting systems.
Nevada's laws concerning ballots have evolved over the past 130 years as society itself has evolved. Early statutes did not specifically require the use of paper ballots because the options were few: voting could be done by voice, raising one's hand, or marking a piece of paper. Telephones, levers, punchcards, and computers were all inconceivable. As technology has improved, voting systems and Nevada's ballot laws have responded to those improvements. However; the lessons of early voting fraud have not been forgotten: since 1891, the Nevada Legislature has been diligent in ensuring the secrecy of the ballot and the integrity of the voting system.