When Internet Explorer is used for the first time, a short setup wizard is shown to allow the user to select the default search engine, accelerators, and other things. The browser ballot itself is presented using Internet Explorer. If the two events coincide—the first use of Internet Explorer and the display of the browser ballot—then the setup wizard is shown first, with the browser ballot hidden behind it. Opera's concern is that after clicking through several screens of setup wizard, users won't pay attention to the browser ballot, and will instead dismiss it, opting to choose later.
Hakon Wium Lie, the company's CTO, has not yet said whether the company will make a formal complaint to the EU over the behavior; though the company has better things to do, he admits to being stubborn about the issue and that he wants the ballot to work properly.
Is this a big deal? Microsoft thinks not. Redmond says that the scenario is an unlikely one, because it requires Internet Explorer to be newly upgraded at the same time as the brower ballot patch is installed. Since Internet Explorer 8 has been out for a year now, most users who are going to install it through Windows Update probably already have done so. As such, most users given the browser ballot will be able to see it unimpeded.
The problem might be more apparent for new Winodws 7 users for whom IE8 is preinstalled; a conscientious user installing everything that Windows Update has to offer prior to using the machine in earnest might well face the situation where IE8's initial setup wizard is kicked off by the ballot. But this seems a minor problem in practice. Even when dismissed, the ballot should be shown at a later date. The idea that users will in some sense stop caring about the ballot after clicking through the wizard also seems dubious; though the wizard can have up to 10 screens, the default is to show far fewer.
Microsoft has already amended the browser ballot to redress one criticism, after flaws were found in the initial version's randomization algorithm. A complaint that the ballot's design unfairly disadvantages minority browsers has not, however, resulted in any alterations so far. Given that Redmond regards the scenario as "unrealistic," it seems unlikely that this complaint will prompt the company to make changes.
Source: ars technica