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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Wednesday, June 29
 
Hoyer's Fix-HAVA Bill
Representative Steny Hoyer (D-MD) has introduced a bill that would deal with one of the major ambiguities of the Help America Vote Act of 2002, relating to provisional voting. Rep. Hoyer was one of HAVA's two principal co-sponsors in the House. The "Secure America's Vote Act of 2005" (H.R. 3094) would amend HAVA to clarify that provisional ballots cast out of precinct should count, at least for those federal contests in which the voter was eligible to participate.

The "wrong precinct" issue was the source of considerable controversy leading up to the November 2004 election, and gave rise to litigation in Colorado, Florida, Michigan, Missouri, and Ohio. HAVA requires that voter's be permitted to cast a provisional ballot if they certify that they are eligible to vote in the "jurisdiction," and that that provisional ballot be counted if the voter is eligible under state law. In the pre-election lawsuits, the primary issue in contention was the meaning of "jurisdiction." Those seeking to have provisional votes counted if cast in the wrong precinct argued that this term refers to the entity maintaining voting lists -- usually the state or county. This is how the term "registrar's jurisdiction" is defined under the National Voter Registration Act (the NVRA, aka, "Moter Voter").

The text of Hoyer's bill doesn't appear to be available yet, but according to this report, it would require that provisional votes for federal office be counted if cast in the correct county or township as of 2006. By 2008, provisional votes for federal office would have to be counted if cast in the correct state.

This is the consistent with the original vision for provisional voting articulated by the bipartisan Carter-Ford Commission. The commission's final report, which formed the basis for much of HAVA, envisioned provisional voting as a way of making sure that no qualified voter was turned away from a polling place anywhere in his or her state of residence. It cited with approval states such as California and Washington, which use provisional voting to satisfy the "fail-safe" voting requirements of the NVRA. Under the commission's recommendation, provisional ballots should be counted if the individual is "eligible and qualified to vote within the state," though only for those contests in which the voter is qualifed to vote.

The Carter-Ford Commission expressly tied its provisional voting recommendation to both the NVRA and statewide voter registration lists. Once those lists are in place next year, it should be an easy matter to verify eligibility, and thus to count provisionals even if they're cast in the wrong precinct.

My take: While I've not seen the text of Rep. Hoyer's bill, he's got the right idea. Enacting this legislation would clarify a major ambiguity -- and source of litigation -- in HAVA, and would move federal law closer to the bipartisan Carter-Ford Commission's vision. Let's hope the Carter-Baker Commission, which is meeting in Houston on Thursday, follows the worthy example of its predecessor and endorses this important reform.

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Moritz College of Law The Ohio State University