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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Sunday, March 9
Pay Attention to Provisionals
That's one piece of advice I'd give to both election officials and candidates this election season. This lesson emerged during the 2004 election, when the large number of provisional ballots cast in Ohio delayed the decision to call the state -- and thus the presidential race -- for President Bush. In Ohio's 2004 election, provisional ballots amounted to 2.8% of those cast, and an even higher percentage of the state's voters cast provisional ballots in 2006.

A large number of provisional ballots can indicate problems in a state's registration system. Also, to the extent a state relies heavily on provisional ballots, it's likely that some voters will be disenfranchised. Moreover, county-to-county discrepancies in the way provisional ballots are verified can alter the result of a close election -- and possibly lead to equal protection concerns.

To illustrate the impact of provisional ballots, I've been trying to find out the number and percentage of provisional ballots cast in Tuesday's primaries. So far, the Ohio Secretary of State's website doesn't appear to have this information. (As I mentioned Wednesday, it's important that this information be released as soon as possible.)

I have learned that a large number of provisional ballots were cast in Franklin County (Columbus area) on Tuesday. The total reported turnout was 299,688, but I'm told that there are approximately 20,000 additional provisional ballots that have yet to be verified or counted. If that's correct, it means that around 6.25% of Franklin County voters cast a provisional ballot. That's a lot.

A large number of provisional ballots could have consequences for the allocation of delegates, as I explained Thursday. Although the statewide result in Ohio's Democratic primary wasn't that close, a relatively small change within a couple of districts ould alter the delegate allocation. Take the 1st Congressional District (Cincinnati area), in which Senator Obama has 66,342 votes to Senator Clinton's 40,112. If Obama were to pick up a little over 500 votes, he'd gain a delegate and she'd lose one. What I don't yet know is how many outstanding provisional ballots there are in the two counties within CD 1 (Hamilton and Butler). If the percentage of provisional ballots is comparable to that in Franklin County, it's quite possible that the delegate allocation could change. The same goes for the counties within CD 17 (Summit, Portage, Trumball and Mahoning), where Senator Clinton could net-gain two delegates with a couple hundred more votes.

Ohio and Texas make a nice contrast, for purposes of demostrating how provisional ballots can throw election results into doubt. According to the latest information available on Green Papers' Texas page, Texas has four districts in which a relatively small shift in vote totals could change the allocation of delegates as between Senators Clinton and Obama. Senator Obama could gain delegates by picking up a votes in state senatorial districts 3, 15 and 19, while Senator Clinton could gain delegates by picking up votes in district 26. But this is less likely in Texas than in Ohio. Texas' Secretary of State reports only 9,744 provisional ballots statewide, meaning that less than 0.08% of the states voters voted provisionally. Given the small number of provisional ballots outstanding, the delegate allocation in Texas is less likely to change (though other factors, such as uncounted absentee ballots or residual votes could still alter vote totals).

It's quite possible that even more voters could be casting provisional ballots in this year's elections, as compared to 2004. That's true for at least a couple of reasons. First, the Help America Vote Act of 2002 (HAVA) required each state to have a statewide registration database in place by 2006. The idea is to make registration systems more accurate, but there probably will be -- and indeed have been -- problems with the new state registration lists that result in some voters' names wrongly being omitted from the rolls. Second, a number of states have imposed stricter ID requirements since 2004, including potential swing states like Ohio, Arizona, and Missouri (the last of whose photo ID requirement was struck down by the state supreme court). This can also be expected to cause more provisional ballots, some of which won't be counted.

As we look forward to the general election, states with large numbers of provisional ballots would be well advised to examine the reasons why. They should also take steps to ensure that provisional ballots cast by eligible voters are counted. It bears emphasis that the process for counting provisional ballots invariably involves some discretion, which means that it gives something for candidates to fight over. This isn't to say that this will happen in the primary but, looking forward to the general election, a large number of provisional ballots provides reason for concern -- both in terms of making sure that all eligible voters have their votes counted, and in terms of reducing the likelihood of post-election disputes over the result.

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Moritz College of Law The Ohio State University