Provisional Ballot Problems Loom as 2008 Election Approaches, New Report Finds

NEW YORK CITY, (Observer Update) - Provisional ballots could play a significant role in the 2008 Election, frustrating voters and leading to possible post-election wrangling, according to a study published this week by the non-partisan public policy center Demos. "Provisional Ballots: Where to Watch in 2008" identifies eight states where there is significant concern over provisional ballot implementation and the high risk of many of those ballots going uncounted in this election.

Provisional balloting was adopted nationwide as part of the federal Help America Vote Act of 2002 (HAVA) in an effort to remedy the problem--widespread in the 2000 election--of voters being turned away from the polls because their names were not on voter rolls. This so-called 'fail-safe' voting provision requires states to offer provisional ballots to individuals who believe they are registered to vote but whose names do not appear on the voter rolls or who do not meet federal identification requirements. Such ballots are counted if election officials subsequently determine that the individual was a legitimate voter under state law.

"When implemented correctly, provisional ballots can enfranchise voters. However, when states adopt unnecessarily stringent standards for counting them and poll workers are not adequately trained in their administration, provisional ballots can have the opposite effect," said report author and Demos Senior Policy Analyst Scott Novakowski.

High rates of provisional ballot usage and rejection suggest persistent shortcomings in election administration. More than one in three of the nearly 2 million provisional ballots cast in 2004 election were ultimately rejected. Compared to 2004, fewer provisional ballots were cast and a higher percentage were counted in the 2006 election, yet problems remained. In 2008, continued high rates might exceed the margin of victory in several highly contested states in the November presidential race, possibly resulting in uncertainty on the ultimate outcome and increasing the likelihood of post-election litigation.

The new Demos report highlights several key problem areas, including some new potential problems for 2008, as well as states where problems are most likely to occur. These include:

Unusually High Provisional Balloting Rates: Americans cast 791,483 provisional ballots in the 2006 election, 1.2 percent of all ballots cast. Several states greatly exceeded this rate and may do so again in 2008.

High Rejection Rates: States rejected 172,555 provisional ballots in 2006, 21.8 percent of the total cast. Again, many states rejected far more in 2006.

Voters "Not Registered": The largest percentage of rejected provisional ballots, 43.1 percent in 2006, were invalidated because voters were logged as "not registered," despite the voter's belief that they were in fact registered.

Wrong Precinct: Thirty states and the District of Columbia categorically reject provisional ballots cast in the wrong precinct. In 2006, 15.4 percent of rejected provisional ballots were thrown out because they were cast in the wrong precinct.

Insufficient Identification: High numbers of new registrants and first-time voters expected in 2008, identification discrepancies between voter registration forms and databases, in addition to restrictive ID requirements at the polls, may lead to a surge in number of provisional ballots cast and possibly rejected.

Incomplete and Unsigned Provisional Ballots: In 2006, 3.2 percent of rejected ballots were invalidated for being incomplete; 2.2 percent were discarded because they lacked the voter's signature indicating poor ballot design or lax oversight by poll workers. Several states exceeded these rates.

"No Match, No Vote": States that have adopted exact data matching requirements between voter rolls and information stored by state DMV's or the Social Security Administration, provisional ballots may be rejected if voters fail to resolve mismatches within a prescribed post-election deadline.

Polling Place Challenges and Foreclosed Voters: Soaring foreclosures rates may lead to increased rates of provisional balloting as some voters may not have had an opportunity to switch their registrations to their new addresses.

"Several states had very high rates of provisional balloting in 2006--sometimes three to five percent of ballots cast. Such high rates of provisional balloting, along with high rates of rejection, are not only an indication of underlying problems with a state's election system, but also are an open invite to candidates looking to take votes away from their opponents," said Novakowski. "Furthermore, new issues such as Florida's "no match, no vote" law as well as the mortgage crisis and the accompanying wave of displaced voters could lead to even greater numbers of provisional ballots in 2008."

The study also provided details on states where provisional ballots problems could emerge on November 4, including Ohio, Arizona, Florida, California, Colorado, Wisconsin, Indiana, and Michigan.

In Arizona, a full 9.7 percent—almost one in ten—of ballots cast in Arizona’s polling places in 2006 were provisional.

Over 30 percent of the 21,211 rejected provisional ballots were thrown out because they were cast in the wrong precinct.

Arizona has one of the nation’s strictest voter ID laws, requiring each voter to produce either a photo ID bearing the voter’s name and address or two forms of non-photo ID containing name and address. Those without ID can cast a provisional vote, but the ballot will be rejected unless the voter returns with acceptable ID within five days of the election. Nearly 2,000 ballots were rejected in 2006 because the voter was unable to produce appropriate ID, almost three times the national rate.