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Free & Fair

The Identity of Provisional Voters: Private or Public? (An Issue That Might Emerge Early in Overtime)

Recently I have written about the possibility of this year’s presidential election going into overtime because of provisional ballots in Ohio, and why history cautions against being overly alarmed at this prospect. Here I want to explore the dynamic of what might unfold on November 7 and immediately afterwards, so that we can distinguish between (1) an understandably competitive process that is working according to the system as designed, and (2) a process that is beginning to careen out of control and potentially could fall off the rails, causing the proverbial train wreck.

To focus on one possible scenario (we could pick others, but it helps to have a specific situation in mind), let’s suppose—as I hypothesized previously—that on November 7 Romney is ahead in Ohio by 10,000 votes, with 150,000 provisional ballots for local elections boards to evaluate. Ohio law permits all provisional voters ten days, until November 16, to give their local boards of elections any required additional information that would enable the boards to verify the eligibility of their ballots. For example, some voters cast a provisional ballot because they show up at the polls without a valid form of voter identification; these ballots, however, will count if the voters supply a permissible form of ID within the next ten days.

In the context of a presidential election that has gone into overtime, some provisional voters on their own initiative will take the steps necessary to give their local boards of election whatever information might help to validate their ballots. But it is easy to imagine that the Obama campaign, which is behind in the count (according to this hypothetical) and thus wants to “rescue” as many provisional ballots as possible, will be concerned that some provisional voters will not undertake the steps necessary to get their ballots counted. For many provisional voters, just figuring out how to navigate the maze of Ohio’s rules and regulations concerning the verification of provisional ballots will be very difficult, and the Obama campaign will want to assist provisional voters with this effort.

The media has reported extensively on the Obama campaign’s highly developed Get-Out-the-Vote “ground game.” Not being part of the campaign, I don’t know whether it will have the capacity, from its own internal resources, to know which of its voters cast provisional rather than regular ballots. If not, or even if the Obama campaign merely wants to double-check the accuracy of its own internal information, it may ask local boards of elections for copies of poll books or other official documents indicating the names and addresses of those voters who cast provisional ballots. This information would enable its campaign workers to contact those voters, to offer assistance with getting their ballots validated.

Here’s where the first legal dispute of the overtime process might emerge. The recent past suggests as much. In 2004, Washington State had an extraordinarily close gubernatorial election, with the Democratic candidate (Christine Gregoire) behind by a tiny margin in initial returns. Democrats asked local election boards for lists of provisional voters, but some local boards refused. Democrats then went to state court and secured an order requiring the release of this information, notwithstanding this sentence in the federal Help America Vote Act of 2002 (HAVA): “Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot.” 42 U.S.C. § 15482(a).

Interestingly, the state court construed this provision of HAVA narrowly, saying that it needed to be consistent with “the public’s right to an open and transparent electoral process.” The court said that “HAVA only precludes disclosure of for whom (or for what) the provisional ballot is voted, not whether the provisional ballot has been counted or the identity of the provisional voter.” (Emphasis in the original.)

To my knowledge, the same issue has not been subject to judicial interpretation in Ohio or other states. Although there is force to the Washington court’s reasoning as a matter of electoral policy (to monitor the integrity of the electoral process, the public does need to know who showed up at the polls and cast ballots, and whose votes were counted and whose were not, whereas of course the public never has a right to know which candidate a voter supported), it is not obvious that the Washington court correctly interpreted the relevant language in HAVA, which has national applicability.

The critical and above-quoted sentence in HAVA comes at the end of a passage that requires states to “establish a free access system (such as a toll-free telephone number or an Internet website) that any individual who casts a provisional ballot may access to discover whether the vote of that individual was counted, and, if the vote was not counted, the reason that the vote was not counted.” This passage in HAVA goes on to say: “The appropriate State or local official shall establish and maintain reasonable procedures necessary to protect the security, confidentiality, and integrity of personal information collected, stored, or otherwise used by th[is] free access system.” It is immediately after this obligation to protect the privacy of a provisional voter’s personal information that HAVA contains the key sentence: “Access to information about an individual provisional ballot shall be restricted to the individual who cast the ballot.”

Given the immediate context in which this sentence exists, it is at least arguable that—contrary to the Washington judge’s opinion—it prohibits the disclosure of more than just “for whom (or for what) the provisional ballot is voted.” For example, it could also prohibit the disclosure of a provisional voter’s Social Security Number, bank statement, or other information that the provisional voter used as a form of voter identification. It could even be construed to prevent disclosure of who voted provisionally. Perhaps, however, the better construction is simply that only the individual provisional voter can use the specific “free access system” to learn whether the ballot was counted and, if not, why not; on this view, some other information—for example, the names and addresses of provisional voters—might be available to members of the public through some other means (like a separate public records request filed with the local elections board).

Based on advice from Ohio’s Attorney General Mike DeWine, Ohio’s Secretary of State Jon Husted has instructed local election boards that the provisional ballot envelopes themselves may not be released to members of the public until after the time for all recounts or contests of an election has passed. It is unclear to me, however, whether either DeWine or Husted have taken a position on whether the names and addresses (or even just the names) of provisional voters (not their envelopes) may or may not, or must, be released to members of the public (including a candidate’s campaign) who requests this information during the ten-day period in which provisional voters may endeavor to convince local boards of elections that their ballots are eligible. In the absence of specific instructions from the Secretary of State on this particular point, it is conceivable that local boards of elections might adopt their own practices and those might end up varying from one another, in turn raising potential Equal Protection concerns.

Consequently, it would not surprise me if there emerged a legal tussle over the availability of this information, assuming that we are in the specific overtime scenario I have been hypothesizing—just as there was in Washington State in 2004. There was also a similar dispute over the identity of absentee voters whose ballots had been rejected, as one of the very first legal skirmishes in the fight over which candidate won Minnesota’s 2008 U.S. Senate election. Al Franken, who was behind in the initial returns, went to state court to obtain the identity of absentee voters, after local election officials refused to give the Franken campaign this information. The Minnesota state court, like the state court in Washington, ordered the release of the requested information. It is important to note, however, that the Minnesota dispute did not involve provisional ballots and thus, unlike the Washington court’s opinion, did not involve an interpretation of the relevant language in HAVA.

As with any disagreement over the rules governing provisional ballots, it would be better if those rules were settled in advance of those ballots being cast rather than afterwards. But I very much doubt that there is any available mechanism for obtaining an authoritative judicial interpretation of HAVA’s relevant language, as well as all relevant provisions of state law, before November 6. Thus, as a polity, we must go into Election Day prepared for some legal uncertainty concerning the availability of information about the identity of provisional voters during the ten-day period in which provisional ballots are verified.

Still, the possibility of litigation on this issue after November 6 does not necessarily mean the whole system will fall off the rails, producing a train wreck. As long as the judicial system could resolve whatever lawsuits might arise over this issue during the ten-day period for verifying provisional ballots, so that the official canvass can begin on November 17 according to schedule, then the system will be able to stay on track. If, however, litigation results in a court order that delays the November 16 deadline for verifying provisional ballots, then there is a danger of the whole system derailing.

As mentioned elsewhere, the time for resolving all legal issues concerning the casting and counting of ballots in a presidential election is extremely tight: exactly five weeks from Election Day to the so-called Safe Harbor Deadline, which this year is December 11. Ohio law, moreover, says that any recount of ballots in a presidential election must be complete by this Safe Harbor Deadline. Therefore, any court-ordered delay of the ten-day deadline for verifying provisional ballots could jeopardize the ability of the state to complete a recount by December 11, since the recount cannot start until after completion of the canvass—which in turn cannot begin until the process of verifying all provisional ballots is complete.

Anyone skeptical that a court-ordered delay of the deadline for verifying provisional ballots could jeopardize meeting the Safe Harbor Deadline should review what happened in connection with the Kilroy-Stivers congressional race of 2008, or the Hunter-Williams judicial election in 2010. Ohio’s experience with both of those fights over provisional ballots should give one pause about any judicial delay of the provisional ballot verification deadline in the context of a presidential election.

But as long as no judicial extension of this deadline occurs, then the system can withstand some initial skirmishing over the availability of information about provisional voters. In other words, even if we see lawsuits filed on this issue soon after November 7, it does not automatically mean that we are in trouble. What we should watch for is whether those lawsuits threaten to delay the provisional ballot verification process.

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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