Provisional Ballots Source of Anxiety in Swing States
By Kavan Peterson, Staff Writer
One of the central safeguards of a new federal law designed to tamp down controversies at the ballot box has spawned pre-election confusion and court fights reminiscent of the hanging-chad hullabaloo after the 2000 election.
A requirement in the 2002 Help America Vote Act (HAVA) that any voter whose registration is in doubt be allowed to cast a "provisional vote" already has set off legal frays in some battleground states over which provisional ballots ultimately will be counted. In an extremely tight election, disputes over tallying unknown thousands of provisional ballots could bog down vote counting for days and bring in judges to help determine the winner of a race.
The problem lies in the different ways states have applied the HAVA mandate. Twenty-eight states -- including the battleground states of Florida and Ohio -- by statute do not count provisional ballots if cast by a voter in the wrong precinct. Under that interpretation, voters unaware that their polling place has moved could be out of luck. So could voters mistakenly sent to the wrong precinct by poll workers. It would not matter whether the mistake was the voter's fault or a clerical error.
In 17 other states, election officials will count votes for federal and statewide races if voters show up at the wrong precinct. But votes on local issues may be disregarded. The theory is voters should not miss out entirely just because they showed up at the wrong precinct. The remaining states allow for Election Day registration so do not need provisional ballots.
"Many people are afraid that provisional voting will be the hanging chad of 2004," said Doug Chapin, director of Electionline.org, a non-partisan, non-advocacy Web site providing news and analysis on election reform. (Electionline.org and Stateline.org are both funded by The Pew Charitable Trusts.)
Also complicating Election Day, according to "Election Preview 2004," the latest report from Electionline.org, is: a flood of newly registered voters, driven by intensive get-out-the-vote efforts; a nationwide shortage of poll workers; strict new voter ID rules, and widespread controversy over new electronic voting machines. And in the closest watched election in American history, a breakdown anywhere in the voting process, be it human error or mechanical malfunction, could lead to post-election lawsuits, Chapin said.
Hundreds of thousands of voters could depend on provisional ballots on Election Day. After the 2000 election, the Census Bureau found that nearly 3 million people didn't vote because of registration issues. Causes included erroneous purges of registration lists, recent moves by voters, clerical mistakes and database problems. Provisional voting is not entirely new. About half the states offered something similar in 2000.
But in recent weeks, labor unions and voting advocates with Democratic ties have gone to court in five states Colorado, Florida, Michigan, Missouri and Ohio -- to try to guarantee that all provisional ballots are counted. They say provisional votes could change the outcome of the election if the presidential race is as tight as it was in 2000.
In Florida, where thousands of voters were turned away from the polls in 2000 when their names were mistaken for those of felons, the state Supreme Court this week upheld the state's right to reject provisional ballots cast in the wrong precinct, rejecting a challenge filed by labor unions. A federal judge in Missouri ruled last week that provisional ballots cast in the wrong precinct must be tossed out, as required by state law, as long as the voters are directed to the correct precinct.
Unlike those courts, a federal judge ruled last week that Ohio's longstanding practice of not counting provisional ballots cast in the wrong precinct violates HAVA.
The Ohio Democratic Party sued over a directive by state Secretary of State J. Kenneth Blackwell ordering poll workers not to count provisional ballots cast in the wrong precinct. Democrats said the directive discriminated against the poor and minorities because they move more often than other voters. They also argued it hurt their candidates more than Republicans because poor people tend to vote for Democrats. About 100,000 provisional ballots were cast in Ohio in the 2000 presidential election.
U.S. District Judge James Carr of Toledo, a Clinton administration appointee, agreed. He ruled that as long as voters are at a polling place in the county in which they are registered, they should be allowed to vote.
Blackwell, a Republican, has appealed the ruling, arguing that HAVA requires states only to count provisional ballots cast in the correct precinct, not county.
The source of the dispute is a single word in the new law: "jurisdiction."
HAVA says that provisional ballots only need be given to voters who go to the correct "jurisdiction" and find their names are not on the voting roll. Democrats challenging Ohio's restrictive provisional ballot guidelines argued that the term "jurisdiction," which is not specifically defined in HAVA, should be understood to mean "county." Blackwell argues that "jurisdiction" refers to the voter's precinct, or local polling place.
Ohio State University law professor Edward B. Foley agrees with Blackwell. According to Foley, when Congress created HAVA, it considered whether provisional ballots should be available to voters who go to the wrong precinct. The House version of the legislation would have allowed such votes, but the Senate version did not. The Senate version of the bill prevailed.
"The weight of the evidence suggests that the better view of Congress' intent behind HAVA is that Congress did not mean for the new law to require provisional voting in the situation in which the voter mistakenly goes to the wrong polling place," Foley wrote in a recent analysis of the legal dispute.
How the 6th U.S. Circuit Court of Appeals rules on Blackwell's appeal could have a huge impact on how other states count provisional ballots, Electionline.org's Chapin said.
"If a judge upholds that HAVA doesn't require voters to be in the right precinct, everyone else will cite that ruling and then you will see a domino effect and other states might cave-in," he said.
With just two weeks to go, poll workers in Ohio are anxious to know what to do on Election Day. Regardless of how the court rules on his appeal, Blackwell said that a Florida-like election dispute is unlikely in Ohio.
"The Secretary of State's office has put a lot of energy and resources behind training poll workers and educating voters, and I'm confident that our election professionals will conduct their jobs in a competent and efficient manner," Blackwell spokesperson James Lee said.