STATEMENT: 100,000's Of Provisional Ballots Could Go Uncounted

Release Date: 
October 20, 2004

New York, NY — More than 200,000 votes cast on November 2nd could be invalidated due to improperly and illegally applied provisional balloting procedures, according to a new report released today by Demos, a nonpartisan public policy research organization based in New York.

The report, "Placebo Ballots: Will Fail-Safe Voting Fail?" is based on an extensive survey of election officials in 50 states and the District of Columbia. The survey assessed the administration of the new provisional ballot requirements in the upcoming General Election. Responses among states — and within the same state — varied widely, revealing dire information gaps and cause for deep concern.

"This report shows that like patients sent home with a placebo, hundreds of thousands of provisional voters across the country may think they have cast a valid ballot, when in all too many cases they are receiving a false promise," said Miles Rapoport, President of Demos.

Millions of citizens were disfranchised in the 2000 presidential race by poor election administration and voting restrictions. In response, Congress passed the Help America Vote Act of 2002 (HAVA) to remove many of the barriers that had blocked the votes of eligible voters on Election Day.

One of HAVA's promises was its so-called "fail-safe" voting provision. According to the law, as of the first primary election in 2004 no registered voter should be turned away from the polls because her name was omitted from the voter roll. She should instead be given a provisional ballot. Similarly, those voters unable to meet HAVA's new identification requirements would also be able to cast a provisional ballot. In both instances, these provisional ballots were to be counted once election officials determined that they were cast by eligible voters.

In its assessment of these mandates, Demos found a clear cause for alarm. States have distorted the provisional ballot remedy by imposing improper ballot restrictions, including:

* Summarily disfranchising voters without ID;
* Penalizing voters who show up at the "wrong" location, without redress;
* Limiting provisional ballot choices to candidates for federal office.

"Congress left it to the states to determine how to count these provisional ballots," said Rapoport, "but it looks like many of them may seize upon the fine print of HAVA's fail-safe voting provision to again deny eligible Americans their right to participate in their democracy.

"A number of states have already thrown out tens of thousands of provisional ballots cast in primary elections this year," according to Ari Weisbard, Policy Analyst at Demos and the report's author. "On November 2, more than one million voters are expected to cast provisional ballots," he says, "but if states stick with their current plans, one-fifth of those could end up in the trash - an amount that will far exceed the projected margin of victory in many of the battleground states."

The report's other key findings include:

* Two states — Minnesota and Idaho — will not offer provisional ballots to newly registered voters without identification;
* 10 states, including Missouri and Ohio, will automatically invalidate provisional ballots cast by first-time voters without identification;
* 30* states and the District of Columbia will throw-out provisional ballots cast in the wrong precinct, despite well-founded confusion about polling place locations;
* Provisional ballots will be invalidated even when voters are selecting candidates for statewide offices, when polling place location is immaterial;
* Seven states will only offer provisional ballots for federal or federal and statewide elections choices — a clear distortion of HAVA that will effectively disfranchise hundreds of thousands of eligible new voters in Connecticut, Delaware, Kentucky, Louisiana, Nevada, Vermont and Missouri.

"This should be a wake-up call for our election administrators and the voting public," says Weisbard. "Half a dozen lawsuits challenging state provisional ballot procedures have already been filed, with more certainly to come after November 2."

The complete report is available for download at www.demos-usa.org.

*Post-Publication Litigation Update:

After the report was published, the Sixth Circuit Court's reversed an Ohio District Court's decision on counting provisional ballots cast in the wrong precinct. The number of states in addition to the District of Columbia that will invalidate these ballots is now 31, rather than the 30 cited in the report. Cases and administrative decisions involving procedures in Iowa, Michigan, Missouri, Colorado, and Florida have not altered the status that is reflected in the report's maps.

Demos: A Network for Ideas and Action is a nonprofit, nonpartisan public policy organization based in New York.

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