Voting Rights and Provisional Ballots

The United States’ 2018 midterm elections approached with far more fanfare than is normal for what is usually a relatively sleepy electoral affair, including an unusual focus on voter disenfranchisement.

Stories of people discovering that they were suddenly not eligible to vote and and other voter suppression tactics appeared over and over again:

In Georgia, a coalition of civil rights groups is suing Republican Secretary of State Brian Kemp after an Associated Press report found 53,000 people — nearly 70% of them black — had their registrations put on hold because minor mismatches on documents like their driver’s licenses violate the state’s new “exact match” requirement. Kemp’s office says voters who have pending registrations will still be able to vote on November 6.

[…]

In North Dakota, meanwhile, Native American tribes, who largely vote for Democrats, are confronting the implementation of a law that requires voters to provide a form of identification that includes their legal name, current street address and date of birth. The problem, for some Native Americans, is the street address requirement. Native Americans who live on reservations or in rural areas that lack street addresses often instead use P.O. boxes.The two states are the latest examples in a wave of battles over restrictive voting measures passed in largely Republican-dominated states in the name of preventing voter fraud. The trend began after the GOP wave of 2010 and picked up steam after the Supreme Court’s 2013 decision that gutted major provisions of the Voting Rights Act.

As a response, the following cut-and-paste meme appeared on Facebook and Twitter:

If you are turned away at the polls your response is, “Give me a provisional ballot with a receipt as required by law.” Pass it on.

Many were rightly skeptical of this message, as it was short, simple, and came with no supporting evidence or citations — in other words, it smelled like possible misinformation, or worse.

This is true, though — at least, in theory. It’s a part of the 2002 Help America Vote Act, which was signed into law after the controversy surrounding the results of the 2000 U.S. presidential election (at which point only about half of the United States had some form of backup for eligible voters who were turned away at the polls.) It was intended to make sweeping upgrades to the American voting system:

(a) Provisional Voting Requirements.–If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual 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, such individual shall be permitted to cast a provisional ballot as follows:
(1) <> An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election.
(2) The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is–
(A) a registered voter in the jurisdiction in which the individual desires to vote; and
(B) eligible to vote in that election.
(3) An election official at the polling place shall transmit the ballot cast by the individual or the voter information contained in the written affirmation executed by the individual under paragraph (2) to an appropriate State or local election official for prompt verification under paragraph (4).
(4) If the appropriate State or local election official to whom the ballot or voter information is transmitted under paragraph (3) determines that the individual is eligible under State law to vote, the individual’s provisional ballot shall be counted as a vote in that election in accordance with State law.
(5)(A) At the time that an individual casts a provisional ballot, the appropriate State or local election official shall give the individual written information that states that any individual who casts a provisional ballot will be able to ascertain under the system established under subparagraph (B) whether the vote was counted, and, if the vote was not counted, the reason that the vote was not counted.
(B) The appropriate State or local election official shall establish a free access system (such as a toll-free telephone number or an Internet website) that any individual who casts a provisional ballot may access to discover whether the vote of that individual was counted, and, if the vote was not counted, the reason that the vote was not counted.

The bipartisan, nongovernmental National Conference of State Legislatures put up a page further explaining the role of provisional ballots in elections:

Also referred to as “challenge ballots” or “affidavit ballots” in some states, they are required by the federal Help America Vote Act of 2002 (HAVA). When there is uncertainty about a voter’s eligibility—the potential voter’s name is not on the voter rolls, a required identification document isn’t available or other issues—the election official is required to offer the voter a provisional ballot instead of a regular ballot.

As NCSL points out, though, the process varies by region, and a provisional ballot is not necessarily a failsafe against losing your ability to vote.

States vary in how they handle provisional ballots cast in the wrong precinct.  This most commonly happens when a voter goes to the wrong precinct because he or she can’t get to the home precinct, and therefore votes on a provisional ballot.  (As part of get-out-the-vote efforts toward the end of Election Day, candidates, campaigns and advocacy groups may encourage this choice.)

Some states count a portion of the provisional ballot if it is cast in the wrong precinct or jurisdiction. Generally they will count the votes for races that the voter would have been eligible to vote in, if they did so in the correct precinct or jurisdiction. This may include just votes for federal offices, as in Rhode Island, or for state or local races that would be shared among precincts.

In other states, the entire ballot will be rejected.

Organizations like Ballotpedia keep lists of provisional ballot laws by state and voters can double-check regional policy on the site for their home state’s election offices. The Massachusetts Institute of Technology’s Election Data and Science Lab says that provisional voting is an effective, if imperfect, solution:

According to the 2016 Election Administration and Voting Survey compiled by the U.S. Election Assistance Commission, at least 2.5 million provisional ballots were issued in the 2016 federal election; 1.7 million were counted, at least in part, and 600,000 were rejected. (About 100,000 were statistically unaccounted for.) These 1.7 million provisional ballots accounted for 1.2% of all votes counted in the 2016 election. Conversely, the 600,000 rejected provisional ballots amounted to 0.4% of ballots cast.

The cut-and-paste meme is, then, true — but American voters who encounters irregularities or difficulties should know their rights by state in order to effectively cast a provisional ballot.