arrowSection 5.4 - Provisional Voting

This topic is monitored by Moritz Law Professor Daniel Tokaji

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A Comparison of the Missouri and Ohio Provisional Voting Decisions

This week federal district courts in both Missouri and Ohio have ruled on whether these states must permit voters to go to the wrong precinct to cast provisional ballots under the new Help American Vote Act (HAVA). The Missouri court ruled no, whereas the Ohio court rule yes. Although these two decisions can be distinguished on the ground that, after the enactment of HAVA, Missouri adopted a specific statute to address this issue (while Ohio did not), the fact remains that the two decisions are irreconcilable in their reasoning.

The essence of the Missouri decision is that it is permissible for the state to require poll workers to direct voters to their proper polling places. If they don’t do so, then perhaps they must permit voters to cast provisional ballots at the incorrect precinct. (This issue was moot in the case, because the state had agreed to count provisional ballots in this circumstance.) But if they tell voters where is the right place to go, and the voter insists on receiving a provisional ballot at the wrong polling place, then the state is entitled to discard this provisional ballot without counting it towards the result of the election.

As the court itself stated, the edict that “a provisional ballot will not be counted if voted at the incorrect polling place by a voter who refuses to go to his correct polling place or a central polling place after being directed to do so, is consistent with and necessary for the enforcement of precinct voting.” Slip op. at 19. And the court made unmistakably clear its view that a state’s insistence on precinct-based voting is permissible under HAVA: “Congress did not intend to override states’ ability to enforce a precinct-based voting system.” Id.

By contrast, the federal court in Ohio determined that HAVA entitles voters to cast a vote at any polling place within the county in which the voter is registered – at least for statewide federal races (the presidency and U.S. Senate). According to the court, poll workers are not entitled to tell voters that they must vote in a different precinct, to which (given their addresses) they have been assigned. Instead, as long as voters go to a polling place within their county, they can insist on casting a provisional voting, which must be counted as valid for the presidential and U.S. Senate races in the state.

This court, too, could not have been clearer in its determination: “HAVA permits provisional voting for federal offices in any precinct in the county in which the voter is registered.” Slip op. at 27 (emphasis in original). And the court explicitly rejected the contention that the state may refuse to count the provisional ballot as long as the poll workers tell voters where their correct precinct is: “This contention disregards the purposes of HAVA – to enhance and preserve the franchise in federal elections.” Id. at 26. According to the court, after the poll worker has informed the voter that his or her proper precinct is elsewhere, it is the voter’s choice under HAVA whether to go to the other polling place, so as to be able to cast valid votes in “down-ballot” races (for state and local offices), or instead insist on voting a provisional ballot at the incorrect precinct, which will count only in the statewide federal races. “HAVA does not take this choice from the voter.” Id. at 25.

The conflict between these two judicial decisions is confirmed by considering the fact of each state’s procedure under the either court’s reasoning. If the Missouri law had come before the federal court in Ohio, it would have been struck down, since it does not preserve the right of the voter to cast a provisional ballot, which will be counted toward the statewide federal races, at any precinct within the county where the voter is registered. Conversely, had the Ohio case come before the federal court in Missouri, the state presumably would have prevailed since its procedure (as specified by the Secretary of State) would have required poll workers to tell voters the location of their proper precincts as part of their refusal to permit them to cast provisional ballots at the wrong locations.

This conflict in the two courts’ understanding of the new federal law needs to be resolved – and very quickly. As a federal law, HAVA applies nationwide, and many states – including the potential swing states of Florida, Michigan, West Virginia, Nevada, Arizona, Colorado, and Iowa – require that provisional ballots be cast in the correct precinct. Litigation is pending on this issue in some of these states, including Florida and Michigan.

Voters should assume that they need to go to the correct polling places, and take it upon themselves to contact their local boards of election to verify exactly where that is. Nonetheless, poll workers in all these states need to know definitely what the rule is under HAVA. This is one of those issues where, arguably, it is more important that it be settled definitively than it be decided correctly.

[Posted October 15, 2004]