EAC Provisional Voting Advisory
The EAC has released this advisory (2005-006) regarding provisional voting and identification requirements. The advisory concludes that section 302 confers a right to receive and cast a provisional ballot, in the event that 1) the voter's name doesn't appear on the registration list or 2) the voter's eligibility is challenged.

According to the EAC, state voter ID requirements can't be used to bar voters from being allowed to vote provisionally. In particular, the EAC concludes that "if individuals who fail to meet Federal identification standards have the right to a provisional ballot, so must individuals who fail to meet similar state standards." It specifically mentions Arizona's Proposition 200, noting that the state can't enforce laws that "bar access to a provisional ballot." Under the EAC's advisory, state laws limiting access to provisional ballots would violate HAVA.

This is consistent with the revised opinion letter that the U.S. Department of Justice recently issued, which I discussed here. Although DOJ had previously opined that voters lacking ID could be denied a provisional ballot, its most recently opinion letter correctly concludes that voters must be allowed to cast a provisional ballot whether or not they have state-required ID.

My take: This is an important ruling. DOJ and EAC are now on the same page, in concluding that a state may not deny a provisional ballot to voters who lack ID. Thus, to the extent that a state passes a law that would require voters to show ID in order to cast a provisional ballot, that law may not be implemented -- such a law conflicts with HAVA and, under the Supremacy Clause of the U.S. Constitution, should not be given effect. - posted by Dan Tokaji @ 11:22 PM