When Lawful Votes Go Uncounted—Constitutional Rights Are Violated

Constitutional Government Cannot Exist Without Lawfully Counted Votes.

The Missouri Constitution declares:

“That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only…”

It further provides:

“That all constitutional government is intended to promote the general welfare of the people… and that when government does not confer this security, it fails in its chief design.”

And most importantly for election administration:

Article I, Section 25:

“That all elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

These are not symbolic statements. They are binding constitutional guarantees. A constitutional republic derives legitimacy only from the lawful votes of the people. Elections cannot be considered “free and open” when the vote-counting method itself systematically excludes legally valid votes from official election results.

The right of suffrage is not limited to physically placing a ballot into a ballot box. The right includes having lawful votes counted according to the standards established by law.

Any statewide election system that predictably excludes lawful votes interferes with the free exercise of suffrage because the voter’s lawful electoral choice never becomes part of the certified election result.

The United States Constitution Protects the Right to Have Lawful Votes Counted

The United States Constitution protects voting rights through:

the Equal Protection Clause of the Fourteenth Amendment,
the Due Process Clause of the Fourteenth Amendment,
and long-recognized constitutional principles prohibiting arbitrary dilution or denial of lawful votes.

The United States Supreme Court has repeatedly recognized that once a state grants the right to vote, it must administer elections using uniform and constitutionally valid standards.

The constitutional injury is not limited to outright denial of the ballot.

Constitutional violations also occur when:

lawful votes are treated differently from other lawful votes,
vote-counting systems apply arbitrary standards,
election practices dilute lawful votes,
or election administration systematically excludes certain categories of valid votes from the official count.

A voter whose ballot is physically accepted but whose lawful vote is not counted has still suffered disenfranchisement.

A vote excluded by technology is no less excluded than a vote rejected by a poll worker.

Missouri’s Election System Uses Technology That Does Not Count All Lawful Votes

Across Missouri, elections are conducted using automatic tabulating equipment and optical scan technology that rely on machine-recognition thresholds rather than legal voter-intent standards.

These systems recognize marks only if they satisfy programmed criteria involving:

darkness,
shape,
size,
alignment,
and target positioning.

Missouri law, however, recognizes a broader range of lawful voter expressions.

Under Missouri’s paper ballot framework, lawful voter intent can be expressed through:

These systems recognize marks only if they satisfy programmed criteria involving:

darkness,
shape,
size,
alignment,
and target positioning.

Missouri law, however, recognizes a broader range of lawful voter expressions.

Under Missouri’s paper ballot framework, lawful voter intent can be expressed through:

distinguishing marks,
circled selections,
corrective markings,
clarifying marks,
and other observable indications of voter intent.

Evidence and public demonstrations have shown that lawful voter marks recognized under Missouri law are systematically treated as undervotes when they fall outside machine-recognition thresholds.

Election officials have acknowledged that certain marks reflecting visible voter intent are not attributed as votes by optical scan systems.

This creates a direct constitutional problem:

The practical definition of a counted vote becomes narrower than the legal definition of a lawful vote. In effect, technology replaces constitutional and legal standards with machine limitations.

Constitutional Rights Cannot Be Narrowed to Accommodate Technology

The Missouri Constitution guarantees free and open elections. That guarantee does not disappear because technology is faster, cheaper, or administratively convenient. Constitutional rights shall not be limited to what software can recognize.

If Missouri law recognizes a mark as a lawful vote, then election systems shall count that vote. A state cannot constitutionally redefine lawful voter participation according to the limitations of machine-detection thresholds. When election systems count only the subset of lawful votes that conform to machine-recognition standards, the system effectively imposes an extra-legal technological condition on the right to vote.

The voter is no longer judged according to law.

The voter is judged according to scanner compatibility.

That condition directly implicates:

Article I, Section 25 of the Missouri Constitution,
equal protection principles under the Fourteenth Amendment,
and constitutional protections against arbitrary disenfranchisement.

“The Machines Worked Properly” Does Not Resolve the Constitutional Problem

Election officials and vendors often respond by pointing to:

federal certification,
logic and accuracy testing,
or successful system testing.

But these procedures do not establish that all lawful votes are counted. They establish only that the technology functions as programmed.
That distinction is critical.

Testing confirms that:

scanners detect marks they are configured to detect,
software tabulates according to programmed thresholds,
and equipment performs consistently within certified tolerances.

Testing does not establish that the programmed thresholds encompass all lawful votes recognized under Missouri law. A system can therefore function exactly as designed while still systematically excluding lawful votes.

In such a case, the constitutional problem is not machine malfunction. The constitutional problem is that the certified counting method itself excludes lawful votes. Testing validates the consistency of the exclusion. It does not cure the exclusion.

Systemic Exclusion of Lawful Votes Violates the Constitutional Requirement of Equal Elections

The constitutional danger presented by optical scan systems is not isolated human error. It is systemic exclusion.

The same machine-recognition limitations apply:

statewide,
across jurisdictions,
across election cycles,
and across all voters using the system.

This creates a recurring and institutionalized condition in which lawful votes are predictably excluded from official election totals.

Such a system undermines constitutional guarantees because:

election outcomes no longer reflect all lawful votes cast,
lawful voters are denied equal participation,
and the certified results no longer fully reflect the will of the people.

The Missouri Constitution provides that political power derives from the people.
But government cannot genuinely derive authority from the people when lawful votes cast by the people are systematically excluded from the count.

Free and Open Elections Require Transparent and Lawful Counting Methods

Missouri’s constitutional framework favors transparency, public accountability, and observable election administration.

Traditional paper ballot counting allows:

bipartisan observation,
public review,
human determination of voter intent,
and direct accountability for counting decisions.

Optical scan systems move critical vote-determination decisions into software-driven processes invisible to the public.

When lawful marks are rejected by machine thresholds:

the voter often never knows,
election judges might never review the ballot,
and the certified totals silently omit lawful votes.

A system that silently excludes lawful votes through nontransparent software processes is fundamentally incompatible with the constitutional principle of free and open elections.

Transparency is not satisfied merely because a paper ballot exists.

Transparency requires that lawful votes on those ballots actually be recognized and counted according to law.

Missouri’s Statutory Framework Reflects Constitutional Protections

Missouri’s paper ballot statutes reinforce these constitutional guarantees by requiring:

human determination of voter intent,
bipartisan tally procedures,
public certification,
and independent verification safeguards.

Those statutes recognize that lawful voter intent cannot be reduced to rigid machine-recognition patterns. The constitutional issue therefore extends beyond ordinary statutory compliance.

The deeper issue is whether election systems operating in Missouri protect the constitutional right of voters to have lawful votes included in official election results. When technology systematically excludes lawful votes recognized under state law, constitutional guarantees are directly implicated.

Constitutional Elections Require Counting All Lawful Votes

Missouri’s Constitution guarantees that elections shall be free and open.

The United States Constitution guarantees equal protection and due process in election administration.

Those guarantees are violated when lawful votes are systematically excluded because they do not satisfy machine-recognition thresholds established for the convenience of technology rather than the protection of constitutional rights.

No election system shall operate in a manner that predictably excludes lawful votes from official election results.

Government derives legitimacy only from the lawful votes of the people.

A constitutional election system shall therefore count all lawful votes — not merely those a machine is capable of recognizing.

“When Lawful Votes Go Uncounted—Constitutional Rights Are Violated”