Provisional Ballot Problems Loom For November 7, According to New Publication

Release Date: 
October 17, 2006

New York, NY — Provisional ballots could again be a leading concern at the polls this year, with new figures showing one in three — more than 650,000 of 2 million cast--were left uncounted or discarded in 2004, according to a new briefing paper by Demos, a national, non-partisan public policy and research center.

The Provisional Ballots briefing paper, which is published this week as part of Demos' Challenges to Fair Elections briefing paper series, examines the outcome of a nationally implemented provisional ballot mandate in 2004, as required by the Help America Vote Act of 2002 (HAVA). One of HAVA's principal provisions required states to adopt a system of "fail-safe" voting in which a person who goes to the polls, but whose name is not on the voter lists or who cannot produce the necessary identification, is allowed to vote on a provisional ballot. According to the law, those ballots should then be counted as voter eligibility is verified within a reasonable period of time.

"Provisional ballots were supposed to provide a foolproof backup on Election Day" said Demos President Miles Rapoport, "but many states have taken advantage of HAVA's vague language to implement excessive provisional balloting rules and therefore deny otherwise eligible Americans their right to participate in the democratic process. Much like patients sent home with a placebo, many provisional voters think they are being given the vote. In reality, they are receiving a false promise that they have responsibly exercised the most basic right in our democracy."

Facts from the briefing paper include:

* Over one in three of the nearly 2 million "fail-safe" provisional ballots cast in the 2004 election were not counted. 
* Thirteen states each rejected over 10,000 provisional ballots in the 2004 election. 
* Twenty-three states counted less than 50 percent of the provisional ballots cast in that election. 
* Thirty-two states and the District of Columbia will not count a provisional ballot cast in the wrong precinct even if the ballot is cast in the correct county. When multiple precincts are located in the same polling place, something as simple as getting in line for the wrong precinct could cost a citizen their vote, such as happened in Lucas County, Ohio in 2004. 
* Many voters in 2004 were simply refused the opportunity to even cast a provisional ballot while others were told to vote provisionally even though they were eligible to cast a regular ballot. One Franklin County, Ohio resident--whose name was omitted from the poll list though other members of her household who had registered at the same time were listed--was challenged by a partisan poll watcher, blocked from voting and never offered a provisional ballot. Another voter in Prince George's County, Maryland was not found on the voter rolls and not provided a provisional ballot because there were "not enough." Precinct workers at a polling place in Warren County, North Carolina distributed provisional ballots to all voters in line while stating that their votes might not count. 
* Provisional ballots are increasingly being cited as a "fail-safe" insurance plan by those advocating stringent voter identification requirements. A voter without photo ID should always be permitted to cast a provisional ballot, according to the argument. However, under the recently enjoined photo ID law in Georgia, a provisional ballot cast by a voter without ID will not be counted unless that voter appears at the registrar's office with the appropriate photo ID within two days of the election. Similarly, Indiana's photo ID law, which has survived a legal challenge and is in effect for the November election, requires a provisional voter without acceptable ID to appear before the circuit court clerk or county election board with appropriate ID within 10 business days of the election in order for the provisional ballot to be counted.

Administrative errors complicate provisional ballot problems. For example, in 2006, a computer malfunction directed 150,000 Washington, DC voters to the wrong polling places. Washington, DC does not count provisional ballots cast in the wrong precinct.

"Most of the problems with provisional ballots can be remedied with direct intervention from the chief election official in the states, often the Secretary of State," said Rapoport, who is also the former Secretary of the State of Connecticut. "For instance, the flaws in voter registration systems must be corrected so that all eligible citizens who complete a voter registration application are included on the voter rolls; poll workers must be provided with adequate training on proper provisional balloting procedures; and an eligible voter should be able to cast a provisional ballot in any polling place within her county and have that vote counted."

Rapoport added, "Then, as states further explore ways to increase fair ballot access and reduce administrative complexity on Election Day, they should explore a far superior alternative to provisional ballots — Election Day Registration."

To find out more about provisional ballots or other election-related issues, visit archive.demos.org to download the 2006 Challenges to Fair Election briefing paper series or Demos' Election Reform Agenda from the 2006-2007 policy briefing book, Fulfilling America's Promise.

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