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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Minimizing the Need for Provisional Ballots: A Reform Worth Wishing For

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December 21, 2004

As we make our wishes for the new year, let's add this to the list: a system for verifying voter eligibility before Election Day, so that officials can reduce the need to verify eligibility after ballots are cast.

This year's presidential election was the first in which congressionally mandated provisional voting played a part. Much research should be undertaken to analyze how this process of provisional voting operated in different states – and different counties within each state. For example, we need to understand better what sources of information election officials in different localities used to ascertain whether provisional ballots were eligible to be counted: only the locality's most recent list of registered voters, or previous lists (to see if voters were erroneously dropped from the most recent list), or voter registration cards (to see if individuals were never added to the list, because of missing information on the cards or other processing errors)?

But we already know this: provisional voting was poised to be a significant factor in the resolution of the presidential election, and under the current system it is susceptible to much disputation after Election Day, as competing candidates attempt to increase or decrease the percentage of provisional ballots ruled eligible for counting (depending on whether provisional ballots are more likely to be for or against the candidate).

We have seen such disputation in the gubernatorial race in Washington State, and we would have seen even more in the presidential race in Ohio had the margin of victory on Election Night been a bit closer.

Here's the important fact: over 2.5 percent of all ballots cast in Ohio this year were provisional ballots (153,539 out of 5,722, 211, or 2.68%.) It does not take a rocket scientist to realize that when this large a percentage of the total vote must be evaluated for eligibility after Election Day, there is a significant increase in the likelihood that litigation over these eligibility determinations will dictate the winner of the race. For example, if there were a fight over the eligibility of 50,000 provisional ballots, and these disputed ballots would have split 60-40 for one candidate, that 10,000 vote difference is roughly the same as the margin by which Carter beat Ford in Ohio in 1976 (11,116 to be exact).

One way to reduce the potential significance of litigation over the eligibility of provisional ballots is to make the process for evaluating their eligibility as clear-cut and "pro forma" as possible. If everyone knows that there is only a simple question to ask about a provisional ballot – was the individual who cast it on the state's verified "master list" of registered voters (if so, it counts; if not; it doesn't)? – then there is not much room for disputing whether or not a provisional ballot should be counted.

An objection likely to arise about such a mechanical process of evaluating provisional ballots is that it undercuts the reason for their existence. Congress mandated provisional voting so that it could serve as a kind of insurance policy for voters wrongly removed from the state's list of registered voters. If the only question asked about a provisional ballot is whether the person who cast it was on the state's list, and the ballot is ruled ineligible if not, then the ballot cannot serve as the insurance policy that Congress envisioned.

The solution to this conundrum is to develop a pre-election process for verifying the accuracy of the state's voter registration list. If it can be determined during October that a voter was wrongly removed from the list, then that voter can be reinstated before Election Day – and that voter can cast a regular rather than provisional ballot, thereby reducing the percentage of ballots in need of post-election evaluation.

Moreover, the pre-election process of checking the accuracy of the registration list can mirror precisely the post-election process that would occur if provisional ballots are examined not just to see if the individuals who cast them are on the list but whether they should be on the list. Let's say that that there is a post-election dispute about whether an individual who cast a provisional ballot was wrongly removed from the state's list of registered voters (perhaps based on the mistaken belief that the individual had moved out of state). Election officials would need to go back and look at various records (old registration lists, change-of-address notices, etc.) to see if such an administrative error indeed had occurred.

The crucial point is that the exact same examination that might occur in November to evaluate the eligibility of a provisional ballot could also occur in October to verify the accuracy of the registration list, and it would be preferable for this process to occur in October before any ballots are cast, rather than after Election Day.

There are several reasons why it would be better to make this same voter eligibility determination before Election Day rather than afterwards. First and foremost, when made ahead of time, it occurs under conditions of greater uncertainty, before candidates know how many provisional ballots must be "harvested" to flip the winner from the returns available on Election Night. Eligibility decisions are more likely to be made "on the merits," without the taint of partisan bias, if they are made under this pre-election condition of greater uncertainty.

Second, as indicated earlier, when these eligibility decisions are made after Election Day, there is the greater likelihood that the public will perceive that the election was decided in court, rather than in the voting booth. That perception is unhealthy for democracy.

Third, with respect to presidential races specifically, the longer it takes after Election Day to resolve disputes about voter eligibility, the greater the likelihood that these disputes will not be resolved until after the time the Electoral College meets. Missing the Electoral College deadlines is a recipe for uncertainty and further disputation at best, constitutional crisis at worse (as has been discussed elsewhere - to read, click on one of the three links below)

For these and other reasons, we hope that the new year will bring legislative reforms that enable disputes about voter eligibility to be settled before Election Day, so as to reduce the potential role for disputes about provisional ballots afterwards.