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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

The Provisional Ballots of Unregistered Voters

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April 5, 2005

When provisional ballots were rejected as ineligible to be counted as part of the official results of the 2004 election, the primary reason was that the voter was "not registered" to vote. But why not? Was it because the voter never attempted to register or because the registration form was lost in the process? Or was it that the registration form was missing some crucial information or because the registrant had been rejected as ineligible on account of a felony conviction (or some other disqualification)?

Available evidence indicates that provisional ballots were cast by unregistered voters for each of these reasons and others. If the presidential election had been close enough, there would have been litigation over the question whether provisional ballots should count even if cast by unregistered voters. Proponents of counting these ballots would have argued that they should not be disqualified as long as the individual possesses the substantive qualifications to be a voter (is a citizen, over the age of 18, and so forth).

This argument, in its broadest form, would make provisional ballots the functional equivalent of Election Day registration. No need to attempt to register before Election Day, since you can just show up at the polls and cast a provisional ballot if you're substantively qualified. Because provisional voting, as required by Congress in the Help America Vote Act (HAVA), was not intended as a back-door requirement that states adopt Election Day registration, it is unlikely that the broadest form of this argument would have been successful.

Nonetheless, a narrower form of the argument would have been much more compelling. Focusing on voters who properly submitted registration forms to their state's Department of Motor Vehicles but whose forms the DMV failed to transfer to the appropriate Board of Elections, the powerful claim would have been that these voters should not be punished for this administrative error. They did all that they were supposed to in order to become registered, and therefore they should be treated as the equivalent of being registered, even if they were not, in terms of counting provisional ballots.

We can start with the proposition that voters should not be disenfranchised when the government fails to take the steps that it is obligated to follow in order to process valid registration forms so that the voter is included on the list of registered voters. But what if a registration form is lost in the mail and never received by the government? Not the voter's fault, but not the state's either.

In considering whether a provisional ballot should count if a voter is unregistered for this reason, it is useful to imagine the following scenario. Suppose a state sets up a mechanism whereby voters can check to see whether their mail-in registrations have been received by the Board of Elections. It would be a system comparable to a FedEx tracking number. The unique number is printed on the registration form, and also on a detachable receipt that the voter can keep to check the status of the form. Together with this "tracking" number is the board's telephone number and website address, either of which will work to see if Board received the form. (I must credit my colleagues in the Century Foundation's Working Group on Election Reform with this idea.)

Now, let's assume that the state provides an opportunity, for voters who through this tracking service, learn that their form was never received by the Board, to fix this problem before Election Day (perhaps by appearing in person at the Board's office, or by emailing or faxing the registration information to the Board). Suppose further than a voter fails to take advantage of this tracking service. The voter mails a registration but never checks on its arrival, and it gets lost in the mail. Having missed the available opportunity to fix this problem, this voter shows up at the polls on Election Day and casts a provisional ballot. Should it count, despite the fact that this voter never became successfully registered (because the Board never received the form)?

My answer is no. The state gave this voter a fair opportunity to become successfully registered, but the voter did not take advantage of this opportunity, and therefore this voter's provisional ballot should be rejected, along with the provisional ballot cast by the individual who never bothered to submit a registration form in the first place.

To complicate matters, we could imagine a state applying the tracking service concept to, not just mail-in registrations, but in-person DMV registrations. "Protect Yourself Against the Chance of Administrative Error: Call 1-800-VOTERQS, or visit www.voterquestions.gov, to make sure that your Board of Elections received this form from the DMV." I'm inclined to think that the state should not make individual citizens shoulder the responsibility of its own bureaucratic inefficiencies. As long as citizens get their valid voter registration forms into the hands of state officials authorized to receive them, they should be considered the equivalent of registered for the purpose of counting their provisional ballots.

After all, it's possible that even after a voter has used the tracking service to verify that the Board received his registration, the Board subsequently loses it before Election Day. If the voter receives from the Board a "registration confirmation number" (similar to the ones hotels provide), then the voter should be able to use that confirmation number to validate a provisional ballot in the event that the Board misplaces the registration between then and Election Day. Similarly, if a voter receives a receipt upon handing a registration form to a DMV agent, that receipt should suffice to validate the voter's provisional ballot in the event that the registration form is lost in its transfer from the DMV to the Board of Elections.

Thus, the principle that emerges is as follows: the voter has the responsibility of verifying that an appropriate state official has received the voter's registration form, when the state provides the voter with a fair opportunity to do so, but once it is in the hands of an appropriate state official - and the voter has received confirmation of this fact - the state has the responsibility of maintaining the accuracy of its records.

We can apply this same principle to the problem of incomplete registration forms. Suppose a voter accidentally mails in a registration form without signing it, as required by state law. Suppose, further, that as part of its "tracking service," the Board of Election informs the voter who telephones (or checks the website) that the registration process remains incomplete for lack of a signature and this omission may be rectified before Election Day in one of several ways (going to the board's office, faxing a signature, etc.). If a voter fails to take advantage of this opportunity and remains unregistered as a result, then a provisional ballot cast by this unregistered voter should not be counted, along with the provisional ballot of the voter whose registration form was lost in the mail (and who also did not make use of the board's "tracking service").

Conversely, if a voter hands a DMV agent a registration form without the necessary signature, and the DMV agent accepts it without pointing out this defect to the voter, then a provisional ballot cast by this voter should count if the Board of Elections subsequently can verify the voter's eligibility in the same way as it would have if the signature had been on the form. In this situation, the DMV agent's failure to notice the defect is the same as if the form had been accepted by a Board of Election official. (The federal Motor-Voter law generates the obligation of DMV agents to function as voter registration officers.) If the DMV agent who accepts the form does not tell the voter that it is missing some essential information, the voter is entitled to believe that handing the form to an authorized government official suffices to complete the registration process.

It takes a DMV agent or board official just a couple of seconds to review a voter registration form to see that it contains all the necessary information. It's not like reviewing a tax return or a college admissions application. When voters register in person with the government and their registration forms are accepted, they should be absolved of the responsibility of having to check with the government to make sure that there was not some procedural defect in their submission.

Of course, even after an individual personally hands in a registration form at the Board of Elections, if the board discovers that the individual is substantively disqualified from voting - the individual is not a citizen, or is under 18, or is a convicted felon (in a state where that matters) - then a provisional ballot cast by this individual will not count. Moreover, when an individual has been ruled ineligible in this way, if the state provides the individual with a fair opportunity to challenge that ineligibility ruling before Election Day, but the individual does not take advantage of this opportunity, then a provisional ballot cast by this individual should be rejected. In this circumstance, there should be no post-election review of the board's substantive ineligibility ruling. The individual missed the chance for this review in a fair pre-election procedure, which is a much preferable setting for the resolution of disputes about a voter's eligibility.

In this context, procedural fairness requires personal notice delivered to the individual that the board did not register the voter on the ground of substantive ineligibility. Since the individual personally handed the form to a board official, the availability of a "tracking service" to check to see if the board rejected the registration should not suffice. The individual in this situation believes that he or she is eligible to vote and therefore may have no reason to suspect that the board will reject the registration. But if the board does provide the individual with such personal notice of its ineligibility determination, and the individual fails to contest it before Election Day, the individual should not be permitted to raise the same issue after Election Day.

These examples do not exhaust the circumstances in which it may be disputed whether a provisional ballot cast by an unregistered voter should count. It is important to consider other possible scenarios, as the rules for deciding whether or not a provisional ballot will count should be decided ahead of time, insofar as it is possible to do so. (Previous Weekly Comments have emphasized this point: see especially March 22 and March 29.) Nonetheless, consideration of the scenarios described above point the way to a basic principle: a provisional ballot cast by an unregistered voter will not count, unless the unregistered voter handed it to an authorized state official and received a receipt for doing so, or received confirmation of registration in some other form (which was subsequently lost by the state), or the unregistered voter lacked a fair opportunity to fix problems associated with the registration process before Election Day.