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OC Registrar of Voters explains ballot counting, run-off and 50 percent threshold

By on March 19, 2015

Orange County’s special election for the 37th State Senate District has caused some confusion.

With less than 50 percent of the votes cast, John Moorlach is expected to avoid a run-off with Asm. Don Wagner.

That’s because more than twelve hundred voters cast ballots, considered by election officials, to be under-votes. Here at, we’re wondering why more than 1,000 high-propensity voters cast ballots in an election with only one contest and then didn’t vote in that race?

We posed that question and a few others to Orange County Registrar of Voters Neal Kelley, who oversees the fifth largest voting jurisdiction in the United States.

Kelley runs one of the best elections offices in the country. Orange County’s elections office is a model for responsiveness and transparency, and we can’t think of another election official willing to engage our questions — while counting late absentee and provisional ballots.

This isn’t the last word on this race, and we’ll have more in the coming days.

Here’s our exchange with Kelley:

Question: Why would 1,200 high-propensity voters go to the polls for an election with one contest and then not vote in that race? The numbers are an anomaly compared to other Senate specials.

Answer: This is pretty clear to us but then again we are seeing and processing the ballots. What we are seeing also matches the phone calls we’ve received. Because there was no Democrat running in this contest many Democrat voters felt that this was an error, or they were just upset about it in general. Even though a Democrat filed as a qualified write-in, their name did not appear on the ballot or in the sample ballot – and as a result, many voters were not aware that a write-in was running. Anecdotally this is not unusual for a large countywide contest – the numbers of voters casting votes for dead, real and mythical characters is in the thousands. These all become undervotes. In this contest, we are seeing comments such as “whatever democrat is running” as an example of something written on the write–in line with no candidate on the ballot marked. In addition we are seeing the typical “Mickey mouse” votes as well. This becomes an undervote – hence the reason for the increase.

Question: What happens if someone wrote in a candidate who’s not a qualified write-in? Is that ballot just trashed and not counted in the total votes? What’s the legal justification for doing so?

Answer: The ballot is not counted in the total votes – you are correct. It becomes an undervote – the legal justification is throughout the California Elections Code and the Vote Counting Standards from the California Secretary of State. The law is clear – if they’re not a qualified write-in they are not counted.

Question: Is a voter selecting a write-in candidate required to fill in the bubble?

Answer: For a qualified write-in yes – they are required to mark the vote target (bubble). This is supported by case law (including the San Diego Mayoral contest with Donna Fry). For a non-qualified write-in it’s immaterial – they can fill in the target or leave it blank – either way it’s not going to count and it will be placed in the category of under vote for the purposes of reporting results. While this increases the ballots cast it does not have an affect on the percent of the vote received for each candidate (since that is calculated using the votes received for the candidates on the ballot, including the qualified write-in). requested a copy of all ballots with an under or over vote in the March 17, 2015 special election. That request was denied.

Answer: Unfortunately we can’t release copies of any ballots – marked for a legitimate candidate, over voted, an unqualified write-in or a blank ballot cast. There are multiple legal protections that prohibit this – cast ballots are confidential and exempt from disclosure under Election Code sections 15370, 18563, 18564, 18565 and 19253, Government Code sections 6254(k), 6255, and the California Constitution, article I, Section 1 and article II, Section 7.



About John Hrabe

John Hrabe spends his time traveling the world as a freelance journalist. When he isn’t on an international flight, John writes about state and national politics for,, Huffington Post and the editorial pages of the Orange County Register. John’s most recent high-profile investigation uncovered the questionable labor practices of Goodwill Industries, the nonprofit organization famous for its secondhand clothing stores.

One Comment

  1. Pingback: Over 1,200 Voters in California Special State Senate Election Cast an Undervote - Perot Report

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