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Provisional voting

Americans may find it surprising to learn that many eligible citizens in the United States are denied the right to cast ballots and have them counted on Election Day. The sad reality is that many voters are turned away from polls because their names do not appear on a list of registered voters, for a host of different reasons that may or may not be the responsibility of the individual voter.

To correct this problem, Congress enacted “fail-safe” provisional voting requirements in the Help America Vote Act of 2002 (HAVA), requiring election officials to provide provisional ballots to individuals who are not listed on the official list of registered voters. Once the appropriate election officials determine that the individual is indeed eligible to vote, the ballot is counted.

The results of this HAVA mandate have been mixed. In some situations, poll workers have failed to offer provisional ballots to voters at all. In cases where poll workers have actually offered ballots to voters, states have applied such varying methodologies for counting provisional ballots that the “fail-safe” mechanism under HAVA has been frustrated. For example, in the 2004 general election, 96% of provisional ballots were counted in Alaska, while only 6% were counted in Delaware. Similar disparities occurred in the 2006 general election: while Maine counted 100% of its provisional ballots, Kentucky counted less than 7%. Fifteen states rejected over 50% of their provisional ballots, and 20% of provisional ballots were rejected nationwide.

Why are Provisional Ballots Not Being Counted?

Despite the efforts of Congress to provide a “fail-safe” mechanism to enable registered citizens to vote, the prerogative of states to impose restrictions on provisional ballots prevents thousands of these ballots from being counted. Based on state surveys completed in the two general elections following the passage of HAVA, and reports addressing the implementation of the provisional ballot requirements of HAVA in different states, Project Vote has identified four principal reasons why provisional ballots are not being counted:

  1. Individuals are not actually registered to vote.
  2. Individuals are not casting their provisional ballots in the correct precinct or jurisdiction.
  3. Individuals are submitting incomplete or unsigned provisional ballots.
  4. Individuals are failing to provide sufficient identification.

Provisional Ballots Should Be Used on a Limited Basis

Due to the problems with ensuring that provisional ballots are counted, it is always better to minimize the use of provisional ballots and allow eligible voters to cast regular ballots. The easiest way to enable the largest number of potential voters to cast regular ballots is to allow Election Day Registration.

Recommendations

Once all avenues for casting a regular ballot have been exhausted, states must ensure that provisional ballots are offered and make every effort to count them. Reasonably simple solutions can be implemented to maximize the opportunity for provisional voters to be enfranchised. Project Vote has developed several policy recommendations based upon surveys conducted across the country, a review of state statues and existing literature, and experiences with recent federal elections:

  1. Allow Provisional Ballots to Be Counted on a Statewide or Countywide Basis.
  2. Provisional Ballots Should Be Designed to be Distinguishable from Regular Ballots, Easy to Read, and Should Serve as Voter Registration Applications
  3. States Should Give Voters Who Submit Provisional Ballots Additional Time to Correct or Supply Necessary Information
  4. Poll Workers Must Be Properly Trained to Administer Provisional Voting

For more information read Project Vote's Policy Brief on Provisional Voting here.

 



Additional Resources

Research

Legislative Brief: Ensuring that Provisional Ballots are Counted. January 2010.

Model Bills

Model Bill: Provisional Voting

Media

Voting Matters Blog: Provisional Voting.

More Links

Summary of Litigation Concerning Provisional Ballots in the 2004 Election. Brennan Center for Justice. November 30, 2005.

Provisional Ballots in Final Report of the 2004 Election Day Survey. Election Data Services. September 27, 2005.

Solution or Problem? Provisional Ballots in 2004. Electionline.org. April 2005.

Continuing Failures in "Fail-Safe" Voting: A Preliminary Analysis of Provisional Voting Problems in the 2004 Election. Demos. December, 2004.

Survey of the Election Community Regarding Provisional Ballots. National Association of Secretaries of State. July 9, 2004.

 
 

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