Dos and don’ts of write-in voting

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It’s rare that an incumbent is reduced to running as a write-in candidate, but that’s the position Byron Brown finds himself in. The challenges are many, not just for the candidate, but for voters who want to cast a ballot for him.

Writing in a candidate’s name isn’t as difficult as it once was because of changes in the form of Erie County’s ballots. But there are rules to follow, and failure to follow them can invalidate a vote.

James Gardner, an election law expert and professor at the University at Buffalo’s law school, said Brown has an uphill climb because of the logistical challenges of a write-in campaign.

“It’s a very different thing to motivate your base, not only to show up, but to do something very unusual that most people in their lives as voters in New York have never done, which is to write in a candidate’s name,” he said.

In New York, and much of the country, write-in rules are permissive, with anything that signifies the intent of the voter — something hashed out in the courts when there are disagreements over the validity of a particular ballot — being the qualifying criteria.

Gardner said the courts tend to side with write-in candidates if their lawyers can successfully argue that a reasonable person can see clear intent to vote for a particular candidate, even if the candidate’s name is not written completely or correctly.

“If it’s possible to discern the intent of the voter, then that intent has to be given effect under the law,” Gardner said.

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By example, if a voter were to write Brian Brown, Byron B. or even simply Brown, those votes would likely count, experts told Investigative Post. It would be up to the camp of India Walton , the Democratic nominee and the only candidate with a line on the Nov. 2 ballot, to challenge ballots they believe they should not be counted. After hearing arguments from lawyers from each candidate involved in any legal challenge, a judge would make a final determination.

Experts offered this advice to voters:

• Spell your candidate’s name correctly. Incorrect or incomplete spellings are not necessarily disqualifying, but the closer you are to an exact spelling, the more likely your vote is to be counted.
• Fill out the bubble for write-in on your ballot, as well as the candidate name. This will ensure that your vote is counted as a write-in on election night.
• Write your candidate’s name within the designated write-in box. This will help to ensure your ballot can withstand a legal challenge.
• You may use a rubber stamp, but do not use stickers on your ballot. They will not be counted as valid.
• Absentee voters, be sure your ballot is postmarked by election day and that you follow all the above guidelines.

Ralph Mohr, the Republican elections commissioner at the Erie County Board of Elections, has been monitoring elections for 28 years. He has seen some strange cases. He recounted one disqualified vote in an Erie County Legislature race between Sandra Lee Wirth and Steve Pigeon that was written as a combination of the two: “Sandra Lee Pigeon.”

He said people often believe the candidate’s name must be written perfectly to count.

“There’s always been the misconception that you have to write in the person’s name as it appears on his voter registration card,” Mohr said. “That’s never been the case. And that’s derived out of court cases.”

Brown’s camp will also have the option of distributing rubber stamps.

Stickers are not permissible in New York, Mohr said, because they can jam ballot machines.

What’s the Brown write-in strategy? His campaign refused to answer questions from Investigative Post. It does have a slogan, “Write Down Byron Brown,” which is plastered on campaign signs placed around the city.

In most write-in campaigns, legal challenges to balloting rarely come before a court. A typical write-in candidate is a relative unknown with little campaign experience or support. They usually get a tiny percentage of the vote and don’t have the means to hire lawyers for court challenges.

The mayor’s race this year is anything but typical. Brown is seeking a fifth term aided by all the advantages incumbency and a quarter century in elected office provide — name recognition, a large war chest, an army of volunteers — but no spot on the ballot.

That means the election is likely to be close. That, in turn, means voters could be in for a long wait for results.

The only scenario that would result in a definite outcome on election night would be if Walton got more votes than the total number of write-in votes and absentee ballots issued.  

Barring that, a final tally might come long after Nov. 2. 

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“The general rule in American election law around the country is that you don’t set aside the results, you don’t do a recount, unless there is some chance that the number of disputed ballots is sufficient to change the outcome,” Gardner said.

The voting machines do not count how many write-in votes each candidate receives, only the total number of write-ins cast. And that number may prove to be an undercount, as it will not include a ballot where the voter fails to fill in the bubble for a write-in vote but does write in a name. That ballot that would likely be ruled valid eventually, but not counted on election night.

In addition to Brown, there are four other declared write-in candidates: attorney Ben Carlisle, businessman Sean “Jaz” Miles, community activist Taniqua Simmons, and casino worker William O’Dell. O’Dell and Carlisle are the only two of those four to register campaign committees with the state Board of Elections. Only Carlisle and Miles were included in the Sep. 9 mayoral debate.

Given the crowded field, it will be impossible to say how many votes Brown received until elections officials go through each individual write-in ballot.

If the tally is close, with the potential for a Brown victory, it’s going to be time-consuming to sift through all the ballots, and court challenges may drag on for weeks or even months. In a 2020 race for the U.S. House of Representatives, Republican Claudia Tenney’s 109-vote win for the 22nd District seat representing central New York wasn’t decided until Feb. 5, 2021, three months after election day. 

And that was a race where both candidates appeared on the ballot on major party lines.

No matter what the big picture looks like on election night, Mohr said he expects ballots to be challenged by one candidate or the other.

“I think, regardless, this is going to end up in some type of further litigation following the election.” 

Jim Heaney