The Independent View: The Problem with Provisional Ballots

I was watching, last week, a C-Span Senate Oversite Meeting about Election Security and heard that Casting a Provisional Vote makes sure everyone Voted. No one said that they got Counted.

In Elections in the United States, a Provisional Ballot is used to Record a Vote when there are Questions about a given Voter's Eligibility. The guarantee that a Voter could Cast a Provisional Ballot if the Voters States that he or she is entitled to Vote is required by the Federal Help America Vote Act of 2002 (HAVA).

Some of the most common reasons to cast a Provisional Ballot include:

- The Voter's Name does not appear on the Voter Roll for the given Precinct's Polling Place, because the Voter is Not Registered to Vote or is Registered to Vote elsewhere.

- The Voter's Eligibility cannot be Established or has been Challenged.

- The Voter lacks a Photo Identification Document, in Jurisdictions that require one.

- The Voter requested to Vote by Absentee Ballot but claims to have Not Received, or not Cast, the Absentee Ballot.

- The Voter's Registration contains Inaccurate or Outdated Information such as the Wrong Address or a Misspelled Name.

- In a Closed Party Primary, the Voter's Party Registration is listed Incorrectly.

Whether a Provisional Ballot is Counted is Contingent upon the Verification of that Voter's Eligibility, which may involve Local Election Officials reviewing Government Records or asking the Voter for more Information, such as a Photo Identification not Presented at the Polling Place or Proof of Residence. Provisional Ballots therefore are usually not able to be counted until after the Day of the Election, and each state may set its own timing Rules for when they must be resolved.

Computer Scientist and some Election Official has criticized the offer of a Provisional Ballot as "a way to brush off troublesome voters by letting them think they have voted." Under some States' Laws, casting a Provisional Ballot at the Wrong Precinct would Disfranchise Voters who could have Cast Valid Ballots had they been Redirected to the Proper Precinct.

According to the Election Assistance Commission (EAC) Thousands of Provisional Ballots are Not Counted each Election.

The 2004 U.S. Presidential Election was the First Presidential Election Conducted under the HAVA Provisions. Nationwide, at least 1.9 Million Provisional Ballots were cast, and 676,000 were Never Counted due to Various States' Rules on Counting Provisional Ballots.

Studies of the use of Provisional Ballots in the 2006 General Election in the U.S. show that around 21% of Provisional Ballots were Rejected. About 44% of these were Cast by Voters who were Not Registered, but many other Rejections were for Reasons that were "Preventable," such as an Incorrect Precinct or Missing Signature. The rates of Rejection vary widely across the States, with some States Counting All or nearly All Provisional Ballots while others Reject more than Half.

Recently, another reason for not Counting Provisional Ballots is Math. If the difference in a Race is more then the Number of Provisional Ballots, they won't be Counted.

Thanks to Richard Winger of Ballot Access News for this information.

I am referencing these as they apply to Provisional and Write-In Ballots.

As long ago as 1915, a Federal Court in Indiana wrote, If a man has a right to vote, he has a right to have his vote received and counted by the proper election officers; otherwise the right to vote is but an empty right. U.S. v Aczel, 219 F.917, at 932.

In 1999, a U.S. District Court in Washington, D.C. wrote, When a citizen steps into the voting booth to cast a vote, he or she intends to send a message in support of or in opposition to the candidate or measure at issue.. The message of the vote is received when the election results are released thereby completing an important communication by the public to the government.. Based on the vote's strong communicative content and the history of the vote's central importance to a democratic system of government, this Court concludes that the result of votes properly cast are core political speech.. To cast a lawful vote only to be told that that vote will not be counted or released (in a recorded total) is to rob the vote of any communicative meaning whatsoever. Turner v D.C. Board of Elections, 77 F.Supp 2d 25 (1999).

The U.S. Supreme Court said in Bush v Gore, 531 US 98 (2000), Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another.