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Commentary

OH-15: 500 Provisional Ballots Invalidated

Towards the end of this morning’s Columbus Dispatch story about the continuing counting of ballots in the Pryce-Kilroy race for Ohio’s 15th congressional district—a story whose headline has Pryce gaining 181 votes from ballots in Madison and Union counties—it is reported that so far about 500 provisional ballots have been ruled ineligible in Franklin County because they were cast by individuals who are not registered to vote. The first point to make about this fact, as the Dispatch itself notes, is that not all these ballots may apply to the OH-15 election, as Franklin County is split with another congressional district. Therefore, it seems unlikely, although possible, that these rejected provisional ballots will end up making the difference between who wins and who loses this election. Another important point, not discussed in the Dispatch article, concerns the procedures that the election officials use to determine whether or not a provisional voter is registered. Different states, as well as different counties within states, have different methods for conducting this inquiry, and these different methods can cause variations in the percentages of provisional ballots that are rejected. For example, some localities check only whether the provisional voter appears in the election board’s computerized database of registered voters, while others double-check the accuracy of their computerized databases by going back to look to see if the board has on file a voter registration card for this provisional voter. In previous elections, some local boards have checked to see whether their state’s Department of Motor Vehicles has failed to forward voter registration forms that were timely submitted to their bureaus, whereas other local boards have not undertaken this additional inquiry. Although Ohio’s legislature overhauled the state’s vote-counting procedures earlier this year, in a law known as HB-3, that statute does not specify the procedures for county boards of elections to use when verifying the registration status of provisional voters. In my judgment, that omission is a missed opportunity and could leave the state and its local boards vulnerable to an Equal Protection challenge based on Bush v. Gore to the extent that different counties use different procedures, with the consequence that some rejected provisional ballots would have been counted had they been cast in other counties. Although this Equal Protection theory may or not be available with respect to the Pryce-Kilroy race, depending upon the facts “on the ground” in the three counties involved in that race, it is conceivable that this Equal Protection theory could be invoked in the statewide Auditor race, which remains undecided and awaiting the final count of provisional ballots. Or, even if the Auditor race is out of reach in the same way that the presidential race was in 2004, this Equal Protection claim remains latent, waiting to be invoked in 2008 if the facts warrant it. Even apart from a state’s interest in avoiding a possible Equal Protection claim, there are important reasons to clarify and specify the procedures for determining whether or not a provisional voter is registered. Given the requirement of the Help America Vote Act (HAVA) for states to set up centralized voter registration databases, a requirement which became effective this year, there is increased attention to the protocols that states and their local election boards use to verify the accuracy of these databases. Studies have shown that “matching” protocols can cause errors in this verification process: if a name or address is misspelled, or a nickname is used, the election official will fail to find the individual even though that person is actually in the database. This point equally applies to the process of verifying the registration status of provisional voters. If the name on the provisional ballot is “Henry,” but the name in the registration database is “Hank,” the local board may determine erroneously that the individual is not registered—and therefore the provisional ballot does not count—even if an extra step in the verification process would have resulted in the recognition that the individual is indeed registered under his nickname. For this reason alone, state law should clearly and specifically delineate all the steps that local election boards need to take before ultimately rejecting a provisional ballot on the ground that it was cast by an individual who was not registered. Franklin County had a high percentage of provisional ballots this year. Although we all need to wait until the counting process is complete to review why the rate was so high, as well as the consequences it had, it is possible that procedures associated with the new HAVA-mandated registration database caused a large number of individuals to be removed from the rolls or to have their registration status put in doubt. It is also possible, when the time came to check the registration status of those individuals forced to cast a provisional rather than regular ballot, that the verification procedures in place were unable to recover individuals who had gone missing. Of course, it is also possible that 500 individuals went to vote on November 7 even though they had never attempted to register beforehand, and thus no amount of checking could uncover a missing registration form. But one wonders about the likelihood of that. Going to the polls on Election Day takes time and effort. Just remember that turnout among registered voters is below sixty percent, and thus think of all those who unquestionably could have voted but didn’t bother to do so. Here, we have 500 folks who made the effort and stood in line. By signing their provisional ballot envelope, they attested to their sincere belief that they thought they were registered. Presumably, then, they think that the election board has a registration form somewhere that has gone missing. So what happened? What explains this misunderstanding between voter and government concerning this elementary question of whether this otherwise eligible voter completed the necessary paperwork in advance of the election in order to be able to cast a countable ballot? Was it lost in the mail? Was it submitted too late or lacking required information? Was it misplaced by a third-party group that conducted a voter registration drive? Is it sitting at the Department of Motor Vehicles, or other state agency designated as an acceptable location for the timely delivery of registration forms, waiting to be forward to the elections board? Was the individual erroneously purged from the registration database? Or did these voters really go to their proper precincts to vote (because this situation is not the rejection of a provisional ballot for being cast an incorrect precinct), without ever having attempted to register in the first place? This basic question deserves to be answered with respect to each and every rejected provisional ballot, simply because of the disenfranchisement (rightful or wrongful) that has occurred, even if these ballots make no difference to the outcome of the Pryce-Kilroy congressional election.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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