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Monday, December 09, 2019 {{ new Date().getDay() }}

Disenfranchised By Bad Design

Reprinted with permission from ProPublica.

This Nov. 8, even if you manage to be registered in time and have the right identification, there is something else that could stop you from exercising your right to vote.

The ballot. Specifically, the ballot’s design.

Bad ballot design gained national attention almost 16 years ago when Americans became unwilling experts in butterflies and chads. The now-infamous Palm Beach County butterfly ballot, which interlaced candidate names along a central column of punch holes, was so confusing that many voters accidentally voted for Patrick Buchanan instead of Al Gore.

We’ve made some progress since then, but we still likely lose hundreds of thousands of votes every election year due to poor ballot design and instructions. In 2008 and 2010 alone, almost half a million people did not have their votes counted due to mistakes filling out the ballot. Bad ballot design also contributes to long lines on election day. And the effects are not the same for all people: the disenfranchised are disproportionately poor, minority, elderly and disabled.

In the predominantly African American city of East St. Louis, the race for United States senator in 2008 was missing a header that specified the type or level of government (Federal, Congressional, Legislative, etc). Almost 10 percent of East St. Louis voters did not have their vote counted for U.S. Senate, compared to the state average of 4.4 percent.Merely adding a header could have solved the problem. Below you can see the original ballot and the Brennan Center redesign.

“When we design things in a way that doesn’t work for all voters, we degrade the quality of democracy,” said Whitney Quesenbery, a ballot expert and co-director of the Center for Civic Design, an organization that uses design to ensure voters vote the way they want to on Election Day.

Many mistakes can be avoided with tiny tweaks.

Designer Marcia Lausen, who directs the School of Design at the University of Illinois at Chicago, wrote a whole book about how democracy can be improved with design. She even tackles the infamous butterfly ballot. The 2000 Chicago Cook County judicial retention ballot crammed 73 candidates into 10 pages of a butterfly layout punch card ballot, with punch holes packed much more tightly together than in previous elections. As in Palm Beach, Yes/No votes for the candidates on the left page were confusingly interlaced with Yes/No votes for the right page.

Lausen’s proposed redesign eliminates the interlaced Yes/No votes, introduces a more legible typeface, uses shading and outlines to connect names and Yes/No’s with the appropriate punch holes, and removes redundant language.

BEFORE

AFTER

In the 2002 midterm election in Illinois’ Hamilton County, each column of candidate names was next to a series of incomplete arrows. Voters were supposed to indicate their choice of candidate by completing the arrow on the left of the candidate name. But because we read left to right and the candidate names in two races lined up perfectly, many voters marked the arrow to the right. As presented in a Brennan Center analysis, setting the columns a bit further apart and adding borders would have cleared up this confusion:

                       BEFORE                                                                        AFTER

In Minnesota in 2008, Al Franken beat Norm Coleman for the U.S. Senate seat by a sliver, less than 300 votes. In that race, almost 4,000 absentee ballots were not counted because the envelope was not signed. The Minnesota Secretary of State’s office decided to redesign the mailing envelope. After a series of usability tests, they added a big X to mark where people should sign. In the following election in 2010, the rate of missing signatures dropped to 837. Below is the before and after from a Brennan Center report:

Minnesota’s mailing envelope is a good example of how designers can solve design problems well before any election actually happens — by testing those ballots beforehand.

“Test and test and test,” recommends Don Norman, a designer and cognitive scientist who wrote the the book on designing objects for everyday life. The most important aspect of ballot design, he says, is considering the needs of the voters. He suggests doing extensive testing of ballots on a sample of people, which should include those who are “blind, deaf, or people with physical disabilities as well as people with language difficulties.”

Bad instructions are a design problem, too.

Beyond layout and ordering, the unanimous winner for worst part of ballot design? Instructions.

“The instructions are uniformly horrible!” said usability expert Dana Chisnell, who co-directs the Center for Civic Design with Quesenbery. Confusing jargon, run-on sentences, old-fashioned language left over from 100 years ago: all of these plague ballots across the country. Here are a few example instructions (the first from Kansas, the second from Ohio) along with the Brennan Center’s redesign:

BEFORE

AFTER

(Brennan Center, Better Ballots)

BEFORE

AFTER

Even if the instructions are clear, placement of instructions has a huge effect on whether people understand them. In usability tests conducted in Florida’s Sarasota and Duval counties in 2008, the majority of participants got to the end of the ballot and stopped. Which was a problem, because the ballot continued on the other side. Despite instructions specifically telling people to vote both sides of the ballot, they didn’t.

So designers added three words to the end of the right column: Turn Ballot Over. The result? An estimated 28,000 fewer lost votes in the two counties that adopted the redesign. Here’s the before and after:

Designers have already put together guidelines for making better ballots.

Luckily, there are resources for how to help avoid these predictable problems. In addition to Lausen’s book, the Design for Democracy initiative has worked for years at applying design principles to improve elections. A few years ago the design association AIGAcombined forces with Whitney Quesenbery and Dana Chisnell to condense their best practices into a set of handy field guides.

The ballot-specific guide, Designing Usable Ballots, has this advice:

  1. Use lowercase letters.
  2. Avoid centered type.
  3. Use big enough type.
  4. Pick one sans-serif font.
  5. Support process and navigation.
  6. Use clear, simple language.
  7. Use accurate instructional illustrations.
  8. Use informational icons (only).
  9. Use contrast and color to support meaning.
  10. Show what’s most important.

For the designers, these recommendations may seem obvious. But election officials — the ones responsible for laying out a ballot — are not designers.

Sometimes, reality thwarts good design.

Even if officials wanted to follow every design best practice, they probably wouldn’t be able to.

That’s because ballots are as complicated as the elections they represent. Elections in the U.S. are determined at the local level, and so each ballot must be uniquely crafted to its own jurisdiction. Ballots must combine federal, state, and local contests, display measures and propositions, and sometime require voters to express their choices in various formats — for example ranking their choices versus selecting one candidate for the job.

“There will always be special circumstances that present new problems for ballot design,” said David Kimball, a political science professor at the University of Missouri-St. Louis who has written extensively on voting behavior and ballot design.

Take what happened this summer in California’s Senate race primary. A record number of 34 candidates were running to replace incumbent Democrat Barbara Boxer, and the ballot needed to fit them all. In many counties, elections officials simply couldn’t follow the good design recommendation of “Put all candidate names in one column.”

To make matters worse, bad design is written right into the law.

Election officials are often constricted in what they can and can’t do by specific language in their local election code. More often than not, the law is to blame for bad design.

For example, numerous jurisdictions require that candidate names and titles be written in capital letters. This goes against huge amounts of evidence that lowercase letters are easier to read. Other requirements like setting a specific font size, making sections bold or center-aligning headers make it next to impossible to follow all the design best practices. Illinois Election Code used to require candidate names to be printed in capital letters. (Statutes of the State of Illinois)

Some election code requirements just seem to invite clutter. In Kansas, a candidate’s hometown must be listed under their name. In California, the candidate’s occupation. Designers argue that this additional text complicates the ballot with needless information, but they can’t get rid of it without breaking the law.

“It’s amazing how many design prescriptions are written into law by non-designers,” said designer Drew Davies, who has worked with numerous jurisdictions to improve their ballots and voting materials and is design director of AIGA’s Design for Democracy.

Some of those prescriptions border on the comical. In New York, election law requiresthat each candidate name must be preceded by “the image of a closed fist with index finger extended pointing to the party or independent row.” Here’s how that actually looks on real New York ballots:

In design, everything matters — even the order of the candidate names.

Some design problems are not as obvious as a pointing finger. Take something as simple as the order of the candidates’ names. There is a well known advantage for being listed first on the ballot. The “primacy effect” can significantly sway elections, especially in smaller races not widely covered in the media where there is no incumbent. One study of the 1998 Democratic primary in New York found that in seven races the advantage from being listed first was bigger than the margin of victory. In other words, if the runner-up candidates in those races had been listed first on the ballot, they likely would have won.

As one report puts it, “a non-negligible portion of local governmental policies are likely being set by individuals elected only because of their ballot position.” To combat this unconscious bias, some states have already mandated that names are randomly ordered on the ballot. Still, many states and jurisdictions do not have a standard system for organizing these names.

The future will bring new design challenges… but also new ways to make voting more accessible.

As more and more states adopt absentee and vote-by-mail systems, they make voting more accessible and convenient — but they also introduce new ways of making mistakes. And those errors are only caught after the ballot has been mailed in, too late to change. A polling place acts as a fail-safe, giving you the opportunity to ask a poll worker for help or letting you fill out a new ballot if yours gets rejected by the voting machine. But on an absentee ballot, if you made a mistake and your vote isn’t counted, you’ll never know.

There are several current efforts to overhaul the ballot entirely. Los Angeles County, for example, has teamed up with the design company IDEO to create an easier and more accessible way to vote. Their customizable device would let people fill out a sample ballot on their own time from a computer or mobile device, and then scan a code at the polling place to automatically transfer their choices to a real ballot.

The Anywhere Ballot is another open-source project that’s designed to create a better voting experience for everyone — including voters with low literacy or mild cognitive issues. Their digital ballot template, which came out of extensive user testing and follows all the current ballot design best practices, lets anyone use their own electronic device to mark a ballot.

But of course, the design problems that plague ballots affect all aspects of the voting process.

Voter registration materials, mailed voter guides and education booklets, election department websites and online instructions, poll worker materials — all of these have problems that can be improved with better design.

“Ballots are where all the drama happens,” said designer Lausen, “but there is much more to election design.”

Cover Photo: (AP Photo/Gary I. Rothstein)

Big Pharma Gets Slapped In The Face

By Lena Groeger, ProPublica.org

On Monday, the Department of Justice announced that drug company GlaxoSmithKline agreed to pay a $3 billion fine, the largest health care fraud fine in the history of the United States. This fine is just the latest in a string of drug company penalties for improper promotion of drugs for “off-label,” or unapproved, uses. Here we take a look at six recent multi-million dollar fines that drug companies have agreed to pay for inappropriately, and in some cases illegally, promoting prescription drugs.

Eli Lilly

Jan 2009

Eli Lilly was fined $1.42 billion to resolve a government investigation into the off-label promotion of the anti-psychotic Zyprexa. Zyprexa had been approved for the treatment of certain psychotic disorders, but Lilly admitted to promoting the drug in elderly populations to treat dementia. The government also alleged that Lilly targeted primary care physicians to promote Zyprexa for unapproved uses and “trained its sales force to disregard the law.”

Pfizer

Sept 2009

Pfizer was fined $2.3 billion, then the largest health care fraud settlement and the largest criminal fine ever imposed in the United States. Pfizer pled guilty to misbranding the painkiller Bextra with “the intent to defraud or mislead”, promoting the drug to treat acute pain at dosages the FDA had previously deemed dangerously high. Bextra was pulled from the market in 2005 due to safety concerns. The government alleged that Pfizer also promoted three other drugs illegally: the anti-psychotic Geodon, an antibiotic Zyvox, and the anti-epileptic drug Lyrica.

AstraZeneca

April 2010

AstraZeneca was fined $520 million to resolve allegations that it illegally promoted the anti-psychotic drug Seroquel. The drug was approved for treating schizophrenia and later for bipolar mania, but the government alleged that AstraZeneca promoted Seroquel for a variety of unapproved uses, such as aggression, sleeplessness, anxiety, and depression. AstraZeneca denied the charges but agreed to pay the fine to end the investigation.

Merck

Nov 2011

Merck agreed to pay a fine of $950 million related to the illegal promotion of the painkiller Vioxx, which was withdrawn from the market in 2004 after studies found the drug increased the risk of heart attacks. The company pled guilty to having promoted Vioxx as a treatment for rheumatoid arthritis before it had been approved for that use. The settlement also resolved allegations that Merck made false or misleading statements about the drug’s heart safety to increase sales.

Abbott

May 2012

Abbott was fined $1.5 billion in connection to the illegal promotion of the anti-psychotic drug Depakote. Abbott admitted to having trained a special sales force to target nursing homes, marketing the drug for the control of aggression and agitation in elderly dementia patients. Depakote had never been approved for that purpose, and Abbott lacked evidence that the drug was safe or effective for those uses. The company also admitted to marketing Depakote to treat schizophrenia, even though no study had found it effective for that purpose.

GlaxoSmithKline

July 2012

GlaxoSmith Kline agreed to pay a fine of $3 billion to resolve civil and criminal liabilities regarding its promotion of drugs, as well as its failure to report safety data. This is the largest health care fraud settlement in the United States to date. The company pled guilty to misbranding the drug Paxil for treating depression in patients under 18, even though the drug had never been approved for that age group. GlaxoSmithKline also pled guilty to failing to disclose safety information about the diabetes drug Avandia to the FDA.

Source: The Department of Justice.

The EPA’s First Fracking Rules: Limited And Delayed

by Lena Groeger, ProPublica

 

The Environmental Protection Agency issued the first-ever national air pollution regulations for fracking on Wednesday. First proposed in July 2011, the final rules have been welcomed by environmental groups as a much-needed initial move in reducing pollution and protecting public health from the toxic chemicals involved in the oil and natural gas drilling process. But many cautioned it was just a first step.

“It sets a floor for what the industry needs to do,” said attorney Erik Schlenker-Goodrich of the Western Environmental Law Center. “The reality is we can do far better.”

Over the past few years, more information has come out about fracking’s potential harms to the environment and human health, particularly relating to the risk of groundwater contamination. In addition to the many potentially toxic components of the highly pressurized fluid injected into the ground during the natural gas drilling process, fracking can also release cancer-causing chemicals like benzene and greenhouse gases like methane into the air. The federal government has made moves to tighten regulations, and we’ve chronicled the history of those regulations.

The EPA’s new rules don’t cover most of those issues. Instead, they address a single problem with natural gas: air pollution.

“These rules do not resolve chronic water, public health and other problems associated with fracking and natural gas,” Schlenker-Goodrich said.

The agency is actually barred from regulating the impact of fracking on groundwater because, in 2005, Congress exempted fracking from the Safe Water Drinking Act. Congressional proposals to give the EPA more oversight have so far failed.

With the new rules on air pollution, the EPA rejected an industry request to exempt some wells with low emissions of toxic compounds but did give drilling companies more time to comply. Notably, the final version provides a two-and-a-half-year transition period (rather than the 60 days in the original proposal) that gives drilling companies until 2015 to comply with the strictest regulations.

The industry lobbied hard for the delay, and its reaction to the rules have been mixed.

A spokesman for the American Petroleum Institute, the largest oil industry trade group, said it is still reviewing the new rules but said it’s happy with changes from the original proposal that will allow companies to “continue reducing emissions while producing the oil and natural gas our country needs.” Another industry group told The New York Times that the rules are too strict and could “make exploring in new areas cost-prohibitive.”

A key rule targets one large source of air pollution: the burst of gas released during the first few days after a well is first tapped but before production begins. The EPA requires that companies start using “green completions,” a technology that captures the released gas and fumes in tanks and transports them via pipelines to be sold as fuel. (The Natural Resources Defense Council has a good breakdown of the process).

Many drilling companies already use green-completion systems. One natural-gas company recently told Bloomberg that the system doesn’t cost the company “any more than just venting the gas into the atmosphere.” The EPA says that once companies buy the necessary equipment to separate and collect the released gas, they could actually make up to $19 million a year selling the captured gas.

“By ensuring the capture of gases that were previously released to pollute our air and threaten our climate, these updated standards will not only protect our health, but also lead to more product for fuel suppliers to bring to market,” EPA Administrator Lisa P. Jackson said in a statement.

For the next two and a half years, in addition to trapping the gas, companies are allowed to burn off, or “flare,” the excess gas, which reduces air toxins but is wasteful because the gas can’t be resold. Peter Zalzal of the Environmental Defense Fund said the EPA rules give companies an incentive to adopt the green-completion technology instead of flaring.

 

Senate Bill Could Roll Back Consumers’ Health Insurance Savings

by Lena Groeger, ProPublica

This summer, health insurance companies may have to pay more than a billion dollars back to their own customers. The rebate requirements were introduced as part of the 2010 healthcare reform law and are meant to benefit consumers. But now, an insurer-supported Senate bill aims to roll them back.

Known as the medical loss ratio rule, it’s actually pretty simple. The provision from the healthcare law says that 80 to 85 cents of every dollar insurers collect in premiums must be spent on medical care or activities that improve the quality of that care. If not, they must send their customers a rebate for the difference. The goal, according to the Department of Health and Human Services, is to limit the money insurers spend on administrative costs and profit.

“It essentially ensures that consumers receive value for every dollar they spend on health care,” HHS spokesman Brian Chiglinsky told ProPublica.

Last month, Senator Mary Landrieu, D-La.,introduced a bill that would change what kinds of costs companies can include in the 15 to 20 percent they are allotted for overhead, salaries, and marketing. The bill, similar to a House bill introduced last March that has yet to come a vote, focuses on payments to insurance agents and brokers. Traditionally, these commissions are bundled into the administrative costs when making the final calculation. But insurance regulators have argued that fees paid to insurance agents and brokers shouldn’t count.

Such a change could mean big savings for insurance companies2014and much smaller rebates for consumers.

This is the first year companies are required to send out rebates. According to a report by state insurance commissioners, if rebates had been handed out last year, insurers would have had to pay consumers almost $2 billion. If they had carved out the broker fees, as proposed in the two current bills, consumers would only get about $800 million.

Landrieu’s office did not immediately respond to our call for comment.

“[The bills] would water down the standard to a point where it becomes ineffective,” said Sondra Roberto, a spokeswoman for the non-profit advocacy group Consumer Union. The group, which also publishes Consumer’s Report, recently urged members to oppose the bill.

The rebates have gotten relatively modest attention. Only 38 percent of the public is even aware of the rule’s existence, according to a Kaiser poll.

Insurance companies have come out in support of the two bills, claiming that the rebate rule as it stands now stifles jobs and actually drives the cost of insurance premiums up. A government report last year found that most insurance companies were in fact lowering their premiums to meet the requirements, as the administration had hoped.

While most insurance companies were able to hit the 80-85% target, the few that didn’t may be required to send out rebates this year.

“Some insurance companies pay an inordinate amount, as much as 40 percent, on administration and profit and not health care,” said the Consumer Union’s Roberto.

The rules on rebates differ slightly depending on whether the insurance comes from a large-group plan (employers with over 100 employees), a small-group, or individual plan. In each case, insurance companies will be required to make all their costs publically available, so consumers can see how their premium dollars are spent.

The government granted insurance companies in seven states extra time to meet the requirements. Insurers who serve states with more rural populations, for example, tend to have higher overhead costs and so cannot as easily meet the requirement, according to Eric Fader, a New York healthcare lawyer. But the government decided that for all other states, there wasn’t any risk to the market by enforcing the requirement, and that the federal government didn’t “need to coddle an inefficient insurance company,” Fader said.

 

New York Court Affirms Towns' Powers To Ban Fracking

by Lena Groeger, ProPublica.

In a decision that could set a national precedent for how local governments can regulate gas drilling, a New York state court yesterday ruled for the first time that towns have the right to ban drilling despite a state regulation asserting they cannot.

At issue was a zoning law in Dryden, a township adjacent to Ithaca and the Cornell University campus, where drilling companies have leased some 22,000 acres for drilling. In August, Dryden’s town board passed a zoning law that prohibits gas drilling within town limits. The next month, Denver-based Anschutz Exploration Corp. sued the town, saying the ban was illegal because state law trumped the municipal rules.

As Anschutz noted, New York law promotes the development of oil and gas resources in the state. State Supreme Court Justice Phillip Rumsey addressed this point in his decision, writing: “Nowhere in legislative history provided to the court is there any suggestion that the Legislature intended 2014 as argued by Anschutz 2014 to encourage the maximum ultimate recovery of oil and gas regardless of other considerations, or to preempt local zoning authority.”

The Dryden case is merely the latest in a string of similar conflicts arising from Colorado to Pennsylvania that pit local communities against state oil and gas laws. It is common for local governments to zone industrial or commercial land, or to institute ordinances for noise or traffic. When it comes to the development of natural resources like oil and gas, the industry contends that local government shouldn’t make those decisions.

In New York, the controversy over state regulation of fracking has been brewing for years. In 2008, New York effectively put drilling on hold while it launched an environmental analysis of fracking, a process that uses a mix of highly pressurized water, sand and other chemicals to crack the earth deep underground. This is the first ruling on an industry effort to use the mineral extraction law to get around local bans.

In addition to the environmental and health concerns over fracking, which we’ve covered in depth, a fundamental issue has been the rights of localities against state or federal laws. According to Eric Goldstein, a senior attorney for the Natural Resources Defense Council in New York, the right of local governments to determine their own land use has been guaranteed by the Constitution for over a century.

“The argument is simple,” said Goldstein. “New York state laws shouldn’t override the authority of local governments to protect their constituents.”

In New York, two very similarly worded laws govern the regulation of mining and oil and gas drilling. The oil and gas provision gives the state the power to “regulate the development, production and utilization of natural resources of oil and gas.” The town of Dryden argued that it was not trying to regulate fracking but merely trying to protect its citizens and property. It pointed out that courts have allowed towns to ban mining, and said Dryden should be allowed to do the same for fracking. The justice seemed to agree, concluding that the state’s oil and gas laws don’t prohibit localities from barring drilling.

Anschutz’s lawyer, Thomas West, said he was not sure whether the company would appeal the decision. Even if it does so, said Joseph Heath, an environmental attorney in New York, Tuesday’s win could help set a precedent for other communities. Despite the threat of similar lawsuits from a major corporation, local fracking bans and moratoriums have continued to grow in the last few years.

“People are now concentrating on local governments because that’s the best form of protection against fracking,” said Heath.

Such protection is unlikely to come from the states, as New York’s Department of Environmental Conservation has already deferred to the courts. When ProPublica interviewed the commissioner last year, we asked him specifically about the potential for conflict between local municipalities and states. He said it was likely “that the courts will need to decide these issues in a lawsuit between the town and the drilling company, not the state.” Now, it looks as if at least one court has decided.

“[The Dryden case] is an important indicator of how those battles are likely to play out,” said the NRDC’s Goldstein, “although it’s not the final word.”