arrowSection 5.4 - Provisional Voting

This topic is monitored by Moritz Law Professor Daniel Tokaji

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Provisional Voting: Implementation and Litigation Issues

One of the most significant changes required by the Help America Vote Act (HAVA) of 2002 is that each state must implement provisional voting in time for the 2004 elections. Provisional voting is supposed to deal with the problem of voters being turned away from the polls because their names don't appear on the registration list or because they fail to present identification. People whose names don't appear on the voting rolls, or who don't comply with the ID requirement, must be allowed to cast provisional ballots if they affirm that they are eligible to vote in the jurisdiction. (More detailed description of the provisional voting requirements under HAVA and Ohio law) Considerable controversy has emerged in some states over how HAVA's provisional voting requirements are implemented. Here are the main issues in dispute.

1. Should provisional ballots be counted if cast in the "wrong precinct"?

HAVA requires that an individual be permitted to cast a provisional ballot at a polling place, upon an affirmation that he or she (1) is registered "in the jurisdiction" and (2) is "eligible to vote in that election." The provisional ballot must then be counted, if election officials determine that the person is "eligible under State law to vote." Some states have indicated that they plan to count provisional ballots only if the provisional voter appears at the correct precinct. In Ohio, for example, the Secretary of State has indicated that voters will be issued provisional ballots only if they appear at the correct precinct. And in Colorado, the state has indicated that provisional ballots cast in the "wrong precinct" will be counted only for the presidential and vice presidential contest, but not for any other races. Civil rights advocates are concerned that these orders will result in voters being turned away from the polls or votes being discarded. Some voters – particularly new voters or those who have been assigned to a different precinct since the last time they voted – may appear at the wrong polling place through no fault of their own. This issue has already given rise to litigation in Florida, Missouri, Colorado, Ohio, and Michigan.

2. Should provisional ballots be counted if voters don't present identification?

HAVA requires that certain first-time voters who registered by mail after January 1, 2003, present photo identification or other proof of address when they appear at the polls. (Details on voter identification requirements) Voters who are subject to the ID requirement but don't come to the polls with ID or proof of address must be allowed to cast a provisional ballot. The difficult question is determining the circumstances under which provisional ballots cast by voters without ID should be counted. In Michigan and Ohio, for example, state election officials have indicated that they don't plan to count provisional ballots unless voters present ID by the time that the polls close. A related issue is what form of identification should be considered acceptable. HAVA includes a non-exclusive list of documents, such as photo ID, a utility bill, bank statement, government check, or paycheck.

3. Must provisional ballots be signed by a poll worker witness to be counted?

HAVA requires that voters be allowed to cast provisional ballots if they affirm that they're registered to vote in the jurisdiction and eligible to vote in that election. That affirmation is to be made "before an election official." The provisional voting form being used in the state of Ohio has a line for the signature of both the voter and a "Witnessing Election Official." This affirmation is then attached to a provisional voting envelope, inside which the ballot is placed – to be counted if the voter is determined eligible. But what happens if there's no signature from the witnessing election official? Will the state refuse to count the provisional ballot, even if the eligibility of the voter can be verified? And even if the reason for the absence of a witnessing election official's signature is an error on the part of the election official?

4. Does equal protection require the state to promulgate clear and uniform standards on provisional voting?

With respect to each of the issues identified above, the possibility exists that different counties will follow different practices. That's particularly true if the state's legislature or chief election official fails to provide clear guidance to counties. For example, absent clear guidance from state officials, it's possible that some counties will count provisional ballots cast in the wrong precinct, while other counties will refuse to count them. It's also possible that counties will employ different standards for determining whether to count provisional ballots cast by voters who did not present ID. Finally, it's possible that some counties within a state will count provisional ballots, where there's no signature from a witnessing official, while other counties will refuse to do so. The application of different standards for counting provisional ballots from county to county – or even within a county – may give rise to an equal protection claim under Bush v. Gore. In that case, the U.S. Supreme Court held that Florida's process for conducting manual recounts violated the Equal Protection Clause of the U.S. Constitution, due to the absence of "specific rules designed to ensure uniform treatment." Following this line of reasoning, it may be argued that a state's failure to have specific rules to ensure the uniform treatment of provisional votes within a state violates equal protection.

5. May the state be sued for violating HAVA's provisional voting requirements?

A final question that can be expected to emerge in cases challenging the implementation of provisional voting is whether or not plaintiffs may sue, if they believe that states or counties are failing to comply with HAVA. The act itself does not include a provision authorizing voters to bring suit. Citizens affected by a state's alleged failure to comply with HAVA may attempt to assert a claim under 42 U.S.C. § 1983, which authorizes claims to be brought against state and local officials, for deprivation of rights secured by federal law. On the other hand, election officials can be expected to argue that HAVA's omission of a private right of action should be interpreted to foreclose private lawsuits.

[Posted October 4, 2004]