5
EXECUTIVE SUMMARY
Background and Methodology
This report to the United States Election Assistance Commission (EAC) presents
recommendations for best practices to improve the process of provisional voting. It is based
on research conducted by the Eagleton Institute of Politics at Rutgers, the State University of
New Jersey, and the Moritz College of Law at Ohio State University under contract to the
EAC, dated May 24, 2005.
The Help America Vote Act of 2002 (HAVA, (Public Law 107-252) authorizes the EAC (SEC.
241, 42 USC 15381) to conduct periodic studies of election administration issues. The purpose
of these studies is to promote methods for voting and administering elections, including
provisional voting, that are convenient, accessible and easy to use; that yield accurate, secure
and expeditious voting systems; that afford each registered and eligible voter an equal
opportunity to vote and to have that vote counted; and that are efficient. Section 302(a) of HAVA
required states to establish provisional balloting procedures by January 2004.
1
The process
HAVA outlined left considerable room for variation among the states, arguably including such
critical questions as who qualifies as a registered voter eligible to cast a provisional ballot that
will be counted and in what jurisdiction (precinct or larger unit) the ballot must be cast in order to
be counted.
2
The general requirement for provisional voting is that, if a registered voter appears at a polling
place to vote in an election for Federal office, but either the potential voter’s name does not
appear on the official list of eligible voters for the polling place, or an election official asserts that
the individual is not eligible to vote, that potential voter must be permitted to cast a provisional
ballot. In some states, those who should receive a provisional ballot include, in the words of the
EAC’s Election Day Survey, “first-time voters who registered by mail without identification and
cannot provide identification, as required under HAVA. . .”
3
HAVA also provides that those who
vote pursuant to a court order keeping the polls open after the established closing hour shall vote
by provisional ballot. Election administrators are required by HAVA to notify individuals of their
opportunity to cast a provisional ballot.
1
The Election Center’s National Task Force Report on Election Reform in July 2001 had described provisional ballots
as providing “voters whose registration status cannot be determined at the polls or verified at the election office the
opportunity to vote. The validity of these ballots is determined later, thus ensuring that no eligible voter is turned
away and those truly ineligible will not have their ballots counted.” It recommended “in the absence of election day
registration or other solutions to address registration questions, provisional ballots must be adopted by all
jurisdictions. “ See www.electioncenter.org
.
2
The 2004 election saw at least a dozen suits filed on the issue of whether votes cast in the wrong precinct but the
correct county should be counted. One federal circuit court decided the issue in Sandusky County Democratic Party
v. Blackwell, 387 F.3d565 (6
th
Cir. 2004), which held that votes cast outside the correct precinct did not have to be
counted. The court relied on the presumption that Congress must be clear in order to alter the state-federal balance;
thus Congress, the court concluded would have been clearer had it intended to eliminate state control over polling
location (387 F.3d at 578). An alternative argument, that HAVA’s definition of “jurisdiction” incorporates the broader
definition in the National Voting Rights Act, however, has not been settled by a higher court. But for now states do
seem to have
discretion in how they define “jurisdiction” for the purpose of counting a provisional ballot.
3
The definition of who was entitled to a provisional ballot could differ significantly among the states. In California, for
example, the Secretary of State directed counties to provide voters with the option of voting on a provisional paper
ballot if they felt uncomfortable casting votes on the paperless e-voting machines. "I don't want a voter to not vote on
Election Day because the only option before them is a touch-screen voting machine. I want that voter to have the
confidence that he or she can vote on paper and have the confidence that their vote was cast as marked," Secretary
Shelley said. See http://wired.com/news/evote/0,2645,63298,00.html
. (Our analysis revealed no differences in the
use of provisional ballots in the counties with these paperless e-voting machines.) In Ohio, long lines at some polling
places resulted in legal action directing that voters waiting in line be given provisional ballots to enable them to vote
before the polls closed. (Columbus Dispatch, November 3, 2004 .)