Provisional Ballot Problems Widely Reported in 2006, New Report Finds

New York — Provisional ballots were a significant source of voter frustration and administrative problems at polling places during the 2006 election, according to a new report, A Fallible 'Fail-safe': An Analysis of Provisional Balloting Problems in the 2006 Election. The new study, published this week by the non-partisan public policy center Demos, underscores significant concern over provisional ballot implementation, a topic that has been the subject of recent hearings in the United States House of Representatives.

A Fallible 'Fail-safe' is based on an extensive examination of data reported to the national Election Incident Reporting System, an 800-number hotline coordinated by the non-partisan Election Protection Coalition to tabulate and respond to problems at the polls in November 2006. The report outlines the significant areas of provisional ballot failures reported to Election Protection volunteers.

Provisional balloting was adopted nationwide as part of the federal Help America Vote Act of 2002 (HAVA) in an effort to remedy the problem, widespread in the 2000 election, of voters being turned away from the polls because their names were not on the voter rolls. This so-called 'fail-safe' voting provision requires states to offer provisional ballots to individuals who believe they are registered to vote but whose names do not appear on the voter rolls or who do not meet federal identification requirements. Such ballots are counted if election officials subsequently determine that the individual was a legitimate voter under state law.

Provisional ballots can be an effective reform when states adopt fair standards for the casting and counting of these ballots. In 2004, the first year provisional ballots were utilized nationwide, an additional 1 million voters were able to vote-and have their votes counted-because of provisional ballots. Unfortunately, HAVA's vague language afforded states the ability to adopt unnecessarily stringent rules for deciding when a provisional ballot would be counted. As a result, over one in three of the nearly 2 million provisional ballots cast was left uncounted for a variety of reasons. As Demos documented in a 2004 report, Continuing Failures in 'Fail-Safe' Voting, voters attempting to cast provisional ballots in 2004 faced a wide variety of obstacles. A Fallible 'Fail-safe' reveals that many of the same provisional balloting problems experienced in 2004 were again evident in election 2006, and also uncovers several new errors in their administration.

"The provisional balloting incidents recorded on and around November 7, 2006, by Election Protection hotline volunteers are cause for national concern," said A Fallible 'Fail-safe' author and Demos Senior Policy Analyst Scott Novakowski. "Many voter registration lists in use on Election Day 2006 were riddled with errors. Moreover, poll workers and election officials were still often confused about the proper application of provisional ballots&two election cycles after HAVA went into effect. What we found was significant evidence that states must fix provisional ballot administration, or many voters' ballots may be at risk in November 2008."

A Fallible 'Fail-safe' provides a snapshot of provisional balloting problems experienced by voters across the nation in November 2006:

Over one-third of problems involved voters either being denied a provisional ballot when they were likely entitled to one, or individuals being required to cast a provisional ballot when they should have voted with a regular ballot.
Almost 40 percent of the incidents involved problems with voter registration lists-often causing numerous voters to be omitted from the rolls at their polling place and leading to voter and administrator confusion about provisional ballot use-and other breakdowns in election administration occurring prior to Election Day.
Fourteen percent of reports involved provisional ballots and electronic voting machine malfunctions.
Fifteen percent of incidents involved poll workers either requiring voters to cast provisional ballots even though they had provided proper ID, requesting ID unnecessarily or, in the case of voters who genuinely lacked the appropriate ID, failing to inform such voters of the necessary steps to validate their provisional ballots (e.g., presenting valid ID to elections officials within a prescribed number of days after the election). Almost 80 percent of these incidents happened in Ohio.

Clear and consistent state standards for handling provisional ballots become even more important in closely-contested elections. While provisional ballots may comprise only a fraction of the national vote, as this report shows, they determined the outcome of various electoral races in 2006.

For example:

Thirty-nine provisional ballots were rejected in Nebraska's 12th State Senate District election where Steve Lathrop beat Jean Stothert by 14 votes.
The candidates for County Commissioner in Brooks County, Georgia, were locked in a 318-318 vote tie on election night, and provisional ballots played a decisive role in the outcome.
In South River, New Jersey, Councilman Anthony Razzano beat his opponent by one vote, shifting power in the Borough Council away from Democrats to an even split between Democrats and Republicans. Nine provisional ballots were rejected in that race.

Researchers continue to examine provisional ballot performance in 2006 and in the midterm 2007 election to examine the impact that significant numbers of provisional ballots may have had on the outcome of close races.

Demos President Miles Rapoport, who testified on November 9 at a hearing on Election Day Registration and provisional ballots held by the Elections Subcommittee of the House Administration Committee, said A Fallible 'Fail-Safe' is an important warning. "Election Day Registration is the best solution for guaranteeing that every eligible voter can cast a vote. But until EDR is fully adopted, provisional ballots are a critical component of our voting system. This report shows major flaws in how provisional ballots are being implemented, and fixing these must be a high priority at every level before the critical election of 2008".

To download the A Fallible 'Fail-safe' report, which also offers a set of recommendations for reforming the administration of provisional ballots, to download Miles Rapoport's House Subcommittee testimony, or to find out more about Demos' election reform research and policy agenda, visit archive.demos.org.

To schedule an interview with Miles Rapoport or Scott Novakowski from Demos, please contact Tim Rusch at [email protected] or (917) 399-0236.

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