This topic is monitored by Moritz Law Professor Daniel Tokaji
Provisional Voting: Federal Law and Ohio Practice
One of the most significant components of the federal election reform legislation enacted in 2002, the Help America Vote Act (or HAVA), is the requirement that citizens be permitted to cast "provisional ballots," if they believe that they are eligible to vote but their names do not appear on the registration list. This requirement is meant to deal with a serious problem that emerged in the 2000 elections — eligible voters being turned away at the polls because their names were wrongly omitted from the voting rolls. While Ohio already has a provisional voting process for newly relocated voters, the requirements of the new federal law go well beyond what this state has previously implemented. Among the most interesting questions in the coming election is how effectively election officials will comply with the new requirements of federal law.
Provisional Voting and Why It's Important
A provisional ballot is a conditional ballot that enables an eligible voter to participate in an election when, due to an administrative error or for some other reason, their names are not listed on the voting rolls. In places that have provisional voting, the process generally works as follows: if a citizen goes to the polling place, but her name does not appear on the registration list, then she is given a "provisional ballot." The voter is required to sign a written affirmation that she is eligible to vote in that jurisdiction before casting the provisional ballot. Election officials then determine whether that person is in fact eligible to vote under state law. If so, then the provisional ballot must be counted.
The idea behind provisional voting is to make sure that registration errors do not prevent eligible voters from participating in an election, as reportedly occurred in Florida and other states in 2000. Many registered voters reported being turned away from the polls, apparently because they were erroneously taken off or "purged" from the voter rolls. The U.S. Commission on Civil Rights found that "countless unknown eligible voters" were wrongly denied the opportunity to vote or purged from registration lists, due to errors on the part of state and local election officials in Florida. The Commission also found that such practices had a disparate racial impact:
Florida's overzealous efforts to purge voters from the rolls, conducted under the guise of an anti-fraud campaign, resulted in the inexcusable and patently unjust removal of disproportionate numbers of African American voters from Florida's voter registration rolls for the November 2000 election. 1
While problems with voter registration glitches have received less public attention than voting equipment failures — such as those that occurred with the now-infamous "hanging chad" punch card — registration problems may actually be a more significant source of lost votes nationwide. A report by the Cal Tech/MIT Voting Technology Project estimated that, while 1.5 million votes were lost due to faulty voting equipment, approximately 3 million votes were lost as the result of problems in voter registration systems. 2
In the course of its deliberations over election reform between 2000 and 2002, Congress recognized the importance of making sure that eligible voters are not wrongly turned away from the polls. At the same time, Congress was also cognizant of the need to ensure that only eligible voters be permitted to cast votes. The provisional voting requirement, enacted as a part of the HAVA, represents Congress' effort to balance these competing considerations.
While provisional ballots have been used in some states in the past, HAVA is the first federal law to require their use nationwide. Section 302 of HAVA requires that people who declare that they are registered voters in a jurisdiction, but whose names do not appear on the list of eligible voters, be permitted to cast a provisional ballot. These votes must then be counted, if the voter is later determined eligible. HAVA requires officials to follow these procedures:
- Notification - An individual whose name does not appear on the list must be notified that he or she is entitled to cast a provisional ballot.
- Affirmation - In order to cast a provisional ballot, the voter must affirm that he or she is a) registered in the jurisdiction and b) eligible to vote in that election.
- Transmittal - Poll workers must transmit the provisional ballot or the information contained in the affirmation to the appropriate state or local election official.
- Counting - If the election official determines that the individual is eligible to vote under state law, then the provisional ballot should be counted.
- Confirmation - Election officials must establish a free access system (such as a toll-free number or web site), allowing provisional voters to ascertain whether or not their provisional ballots were counted and, if not, why not.
These procedures must be in place in time for the 2004 elections. 3
HAVA's provisional voting requirement can be expected to assume special importance in the forthcoming election, in light of another provision of HAVA, requiring certain first-time voters to show identification at the polling place. 4 This requirement applies to people who registered by mail, but have not previously voted in federal elections. The first-time voter must either present "a current and valid photo identification" or a copy of a utility bill or other specified documentation showing his name and address. 5 Those who do not present such documentation must be allowed to cast provisional ballots, which must be verified in accordance with the procedure described above. This process, known as "fail safe voting," is meant to ensure that citizens who do not bring the proper documentation will nevertheless have their votes counted, if they are in fact eligible to vote.
Provisional Voting in Ohio
While the State of Ohio had a provisional voting system in place even before the enactment of HAVA, that system was less extensive than what is now required under federal law. The Ohio Code nowhere defines the term "provisional ballot," but this term has been used by state and local election officials to describe a ballot cast by a voter who moves from one county to another, but has not re-registered in the new county of residence.
For example, if a voter moved from Delaware County to Franklin County, but did not re-register in Franklin County by the prescribed deadline (October 4 for this year's presidential election), that voter should be allowed to cast a provisional ballot in Franklin County. In Ohio, a provisional ballot may be cast in one of two ways: (1) on the day of the election, the voter may appear at the county board of elections office or another location designated by the board; or (2) anytime between the 28th day before the election (25 for the presidential primary) and the Monday before the election, the voter may appear at the board of elections office. 6 The voter must then sign a notice of change in residence, attesting that he or she has moved from one county to another — and will not attempt to vote at any other location in that election. 7 This process applies only to people who move from one county to another within the state, not to people who move to Ohio from another state.
Ohio's provisional voting procedure is of particular importance for students and others who have moved from county to county but have neglected to re-register. These voters should be permitted to cast provisional ballots, if they go to the board of elections office or designated location on election day. And in fact, this process has been widely used by students. For example, in Athens County, home of Ohio University, the provisional voting location had 1,200 provisional voters in 2000 — with lines reported to be as long as two hours long. 8
Reconciling Ohio's Practice with Federal Law
While Ohio's process is of importance to newly relocated voters, HAVA requires that provisional voting be implemented on a broader scale. Under HAVA, provisional voting may not be limited to voters who move from one county to another within a state. It must also be extended to voters who affirm that they are registered within a particular county, but whose names do not show up on the voting rolls. It must also be extended to first-time voters who registered by mail, but do not come to the polling place with the required identification. Moreover, provisional voting must be allowed at the polling place, and not simply at a location designated by the board of elections.
The Ohio Secretary of State's office has indicated its intent to comply with the new requirements of federal law. Ohio's HAVA implementation plan, entitled Changing the Election Landscape in the State of Ohio, states: "Provisional voting is a way to ensure every eligible voter who shows up at the polls on election day can cast a ballot . . . . No voter should be disenfranchised just because someone made a mistake, or the paperwork on a change of address was overlooked, misplaced, incorrectly recorded or just didn't get entered into the database in time to be reflected on the voter rolls." 9 The state plan promises to "refine and expand the scope of provisional voting" to comply with HAVA. Local boards of election, according to this plan, will be required to adopt provisional voting policies "weighted more toward inclusion in the voting process than challenges and exclusion in the ballot process." The plan also states that a toll-free hotline will be created, to allow provisional voters to determine whether their votes were actually counted.
These statements indicate that the Ohio Secretary of State intends to expand the limited provisional voting process that has been in place up until now and replace it with a more comprehensive program that complies with HAVA. What remains to be seen is how effectively Ohio — and the numerous other states that will be forced to institute or expand provisional voting in this year's election — will implement this change.
[Posted: July 20, 2004]
2. CALTECH/MIT VOTING TECHNOLOGY PROJECT, VOTING: WHAT IS, WHAT COULD BE 3 (2001).
3. Help America Vote Act of 2002, Public Law 107-252, '302(a).
4. Public Law 107-252, '303(b).
5. Certain voters are exempt from the requirement of producing such documentation, specifically those who submit a driver's license number or the last four digits of their social security number, and whose information can be matched against an existing state identification record. Public Law 107-252, '303(b)(3).
6. Ohio Code ' 3505.18(C). Although the statute does not use the term "provisional ballot," this term is used in Ohio to describe type of votes cast pursuant to this section. See Ohio Secretary of State, 2004 Ohio Voter Information Guide, available at http://www.sos.state.oh.us/sos/pubAffairs/elections/voterGuide.
7. Ohio Code ' 3505.18(C).
8. Nick Clause, Board Considers Making Things Easier for Student Voters at Baker, THE ATHENS NEWS, Mar. 25, 2004.