STATEMENT: States Still Counting Provisional Ballots—Winners Of Many Statewide And Local Races Yet To Be Determined

Release Date: 
November 12, 2004

New York, NY — Widespread challenges to our electoral system surfaced on November 2nd, according to thousands of documented cases of system failure collected by troubleshooters and monitors at election call-centers across the country. Problems ranged from machine breakdowns, intimidation and long lines, with many focusing on widespread errors in the implementation of new provisional ballot requirements. Some of these include:

* Shortages in provisional ballots meant that many voters were turned away from the polls without casting a vote.
* Identification requirements were often improperly applied.
* Some election officials did not offer provisional ballots to eligible voters omitted from voter rolls.
* States invalidated ballots cast in the "wrong precinct," disenfranchising many first-time voters and others affected by redistricting.

"While we have reversed a 30-year trend toward lower participation with increased turnout, especially among young voters, there were significant barriers to making sure that every eligible voter could cast a vote that counted," said Miles Rapoport, President of Demos, a non-partisan, pro-democracy organization based in New York. "Hundreds of thousands of provisional voters across the country, like patients sent home with a placebo, believed they had the opportunity to cast a valid ballot, when in all too many cases they received a false promise."

The problems with provisional ballots were predicted in a study released by Demos shortly before the election, entitled "Placebo Ballots: Will Fail-Safe Voting Fail?" The report, based on an extensive survey of election officials in 50 states and the District of Columbia, shows that most states could be subject to similar uncertainty unless the administration of provisional balloting is fairly and evenly applied. The survey found that responses among states — and within the same state — varied widely, revealing dire information gaps and cause for deep concern. Key findings include:

* 31 states invalidate ballots cast in the wrong precinct — even for statewide races. Others require new voters who did not present identification to return before the official canvass to prove their eligibility. These new voters were often not told that they must return if they want their votes counted.
* In 10 states, their votes are automatically invalidated, even if they do return with ID before the official canvass.

"On November 2, more than one million voters cast provisional ballots," according to the report's author Ari Weisbard, "but if states stick with their current procedures, thousands of those could still end up in the trash — an amount that exceeds the margin of victory in races around the country."

Across the nation, close statewide and local elections may still be determined by provisional ballots. Differing standards for which ballots to count may cause many eligible voters to have their ballots thrown out and possibly change the outcome of the elections. Examples from close elections around the country:

The race for governor in the State of Washington is currently split by less than 4,000 votes, with more than 80,000 absentee and provisional ballots left to count. Washington will count provisional ballots cast in the wrong precinct for the Governor's race, but will not count those cast by new voters who registered by mail and did not present identification, even if they return after Election Day with proper ID.

In Montana, control of their house of representatives appears to hinge on a two-vote margin of victory in one race, subject to a possible recount and a debate over whether two voters who were told to cast provisional ballots in the wrong legislative district can correct their ballots.

Candidates for Mayor of Jersey City, NJ are currently separated by 2,670 votes, while 4,380 provisional ballots remain to be verified before some of them are counted. New Jersey requires new voters who registered by mail to present identification at the county election office within two days of the election, if they did not present identification previously.

Provisional balloting, as a national electoral requirement, can be traced back to the last presidential election, when millions of citizens were disenfranchised 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 elections officials determined that they were cast by eligible voters.

"With widespread reports of provisional ballot problems on November 2nd, and hundreds of thousands of uncounted ballots decaying in election offices, the system failed many voters once again," said Rapoport. "This is a distortion of HAVA and a clear call for greater diligence and renewed efforts for reform."

"If the laws continue to be distorted, and if thousands of provisional ballots cast are not even counted, then why would any provisional voters return in 2006 or 2008?" questioned Ari Weisbard. "The government gave them a vote that didn't count. This should be a wake-up call for our election administrators and the voting public."

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

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

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