Provisional Ballots Offer Back-Up for Primary Voters

With lots of new voters showing up at the polls for this year's primaries, election officials are also seeing many problems. Some people are going to the wrong polling sites; others can't find their names on voter registration lists. Still others don't have the proper ID. The fallback for these voters is often something called a provisional ballot. But those votes do not always count.

Cecilia Martinez is executive director of The Reform Institute, a non-profit group that helps operate a national voter assistance hotline, 866-MyVote1. The hotline has received thousands of calls so far this year from voters. Many are trying to find out where they are supposed to go vote. But Martinez says many others have encountered problems.

"Oftentimes what happens is when a voter goes to the polls, and they have registered, but they for whatever reason are not listed on the registration rolls, they are supposed to be voting provisional. That's sort of the backup plan," she says.

History of Provisional Ballots

A backup plan was required by federal law after the chaos of the 2000 elections. The idea is, if voters run into trouble at the polling place, they can cast a provisional ballot that will be counted later, if the problem is resolved. But the rules are confusing and vague, and provisional ballots that count in one state might not count in another.

Linda Weedon is deputy elections director for Maricopa County, Ariz. She says her county accepted fewer than half the unprecedented 52,000 provisional ballots cast there for the state's Feb. 5 presidential preference primary.

Arizona's primaries are closed, "so if you're not registered in the political party, you can't participate," Weedon says. "We had a lot of what we call independents or 'registered as other than' that went to the polls to vote and ended up doing a provisional ballot."

A similar thing occurred in New Mexico's Democratic caucus, where fewer than half the 17,000 provisional ballots cast were considered valid. And it's a concern in Pennsylvania, which holds its primary next week, and where there's been a flood of new registrations — more than 217,000 since January.

Looking Ahead to the Pennsylvania Primary

Pennsylvania state Rep. Babette Josephs, who chairs the committee that oversees elections, is worried that many first-time voters will forget that they have to show ID.

"And I fear that some of those who have no time to go back home and get ID, that there may not be enough provisional ballots for them to vote, which is a procedure we allow here in the state," she says. Local officials say they're prepared for a heavy turnout, and that there should be enough ballots.

One advantage for Pennsylvania voters is that their provisional votes can be counted, if they're cast anywhere in the correct county. Many states require provisional votes to be cast in the correct precinct — a problem if a voter does not know where that is.

Murky Registration Rules

Ned Foley, a professor at the Moritz College of Law at Ohio State University, sees other difficulties. He says state laws require that provisional voters be registered for their votes to count, but he adds: "That is usually all the state law says. And it turns out that that question is much trickier in practice. Sometimes registration forms get lost in transit from the motor vehicle bureau to the election officials. Is that voter registered or not registered?"

He notes that that question was decisive in a contested 2004 Washington gubernatorial race, after it was discovered that registration data wasn't recorded for several hundred provisional voters.

"It was determined under state law that they were indeed to be deemed a registered voter, and ... the other candidate was declared the winner," he says.

Foley thinks provisional ballots could prove to be crucial this year as well, if the presidential race is tight. All the more reason, he says, for states to clarify the rules now.

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