Election Law @ Moritz

Information and Analysis

Would-be Crossover Voters Denied Provisional Ballots

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In yesterday’s presidential primary, people across the country showed up to vote and found they were not eligible in the party primary of their choice.  This was particularly a problem in Arizona and New Jersey.  Arizona has closed Presidential primaries, meaning that one must be registered as a member of a given party to vote in that party’s primary.  Because many independent voters were unaware of this rule, they expected to cast regular ballots but had to cast provisional ones that will not count.  The confusion is understandable considering that the rule reportedly does not apply in other types of Arizona primaries.  Early reports indicate perhaps 100,000 provisionals were cast in the state, many due to the misunderstanding.

Unfortunately, however, some Arizona independents were not even permitted to cast provisional ballots.  Poll workers were apparently confused and perhaps thought that provisional ballots were only available to individuals who did not appear on the poll register, and not available to individuals who were listed on the poll register, but listed as affiliated with a party other than the one to which they claimed membership at the polls.  This seems to go against the language of HAVA, which states that individuals have a right to a provisional ballot when either (1) “the name of the individual does not appear on the official list of eligible voters for the polling place” or (2) “an election official asserts that the individual is not eligible to vote.”   15482(a).  While one might quibble that the second situation does not apply to the Arizona independents because they were eligible to vote in a primary other than their desired one, there is little harm in permitting provisional voting and such a hypertechnical reading seems inappropriate in light of HAVA’s remedial purpose.  But poll workers’ apparent misunderstanding of the rules comes as no surprise considering that the Arizona statute implementing HAVA itself fails to mention HAVA’s catch-all category for those who are told they are ineligible.  The statute says merely that Arizona voters may vote provisionally (1) when an individual whose name is not on the precinct register presents proper ID or (2) when an individual has moved to a new address within the county, has not notified election officials, and presents proper ID with address within the present precinct.  §16-584.

New Jersey’s problem was slightly different.  New Jersey has modified open primaries, meaning that, while independent voters may cast a ballot for either party, registered Republicans and Democrats cannot cross over and cast a ballot for the other party.  Nevertheless, many voters assumed they could switch party membership on Election Day (which is allowed in some states, such as Ohio), and were disappointed to learn otherwise.  Like Arizona’s law, the New Jersey HAVA implementation statute does not speak to whether voters have a right to a provisional ballot when the party confusion issue arises (see § 1953C-3), and there were reports of voters who could have been issued a provisional ballot at the polls instead being directed to take the issue up with officials at the local election authority.

Will these difficulties affect the result of an election?  Preliminary reports do not suggest any recounts or lawsuits are contemplated in either state.  Because it seems clear that the ballots of the confused voters are not eligible to be counted, candidates are likely to look elsewhere to pick up votes.  Nevertheless, officials need to do better to educate voters about what they must do to vote in the primaries of their choice.  Furthermore, where these educations efforts fail, as they occasionally must, it is important for the affected voters to at least be afforded a provisional ballot both because federal law requires it and so that those voters feel that they have been given a fair chance.  State political leaders might also consider simplifying the rules determining who is eligible to vote in each primary, a reform that could reduce both voter and poll worker confusion.

Contributed by Matt Provance and Sarah Cherry, Web Analyst.