Provisional Ballots Protect Voting Rights — When They Are Counted

By: - November 16, 2018 12:00 am

Election officials in Gwinnett County, Georgia, open and scan absentee ballots during the midterm election count. Untraditionally, absentee and provisional ballots played a major role in this election. John Spink, Atlanta Journal-Constitution via The Associated Press

More than a week after Election Day, much remains murky in Georgia and Florida. But one thing is clear: Provisional ballots, often forgotten and minimized, will help determine the results.

Provisional ballots are a proven fail-safe for voters across the country, but their role in the political dramas playing out this week illustrates how the little-understood tool can fall prey to political manipulation.

When candidates inaccurately attack provisional ballots as perpetuating voter fraud, they take advantage of a complicated process many Americans don’t understand. And when states decline to count all the provisional ballots or discard some on questionable grounds, then the system doesn’t work for all voters.

Created by a federal law in 2002, provisional ballots are supposed to be a protection against administrative and technical errors that prevent registered voters from casting a normal ballot on Election Day. In other circumstances, voters cast a provisional ballot if they go to the wrong polling place or, in some states, forget their photo ID.

Local officials add each one to the tally only after they confirm that it was cast by a registered voter.

Regardless of how close a race is, officials are supposed to verify and count every provisional ballot.

Myrna Pérez, the deputy director of the democracy program at Brennan Center for Justice at New York University School of Law, said state and local election officials need to make sure provisional ballot protections are utilized to the fullest.

“They are supposed to be a fail-safe,” Pérez told Stateline. “But if provisional ballots are just placebos, they’re not doing their intended purpose, and they’re just an administrative drain.”

The number of provisional ballots was “unusually high” in Georgia, testified Michael McDonald, an associate professor at the University of Florida, in a court case decided Monday.

In its lawsuit against the state, Common Cause Georgia, a voting rights group, said the state’s insecure voter registration database may have led to many voters arriving at their polling places to find they were not on the rolls.

Or, the group said, it might just be an issue of competently maintaining databases.

Getting the Full Count

Civil rights activists and Democratic politicians have filed lawsuits in Florida and Georgia seeking to ensure that those states verify and count every ballot — provisional or otherwise — before officials certify results.

Pérez, who was the lead lawyer in the successful case against Georgia, said it was inappropriate for then-Secretary of State Brian Kemp to declare himself the winner in the gubernatorial race with Democrat Stacey Abrams without trying to verify all 21,000 statewide provisional ballots. (Kemp declared victory in the gubernatorial race and stepped down from the secretary of state position.)

“This is an important case because it lays bare the challenges and gross needs in how we use provisional ballots in Georgia,” she said.

In Florida, too, a large amount of provisional ballots factored into tightening the state’s elections for governor and U.S. Senate, triggering a statewide recount. But thousands more may not have been counted because of a signature mismatch with official state registration records.

Democratic U.S. Sen. Bill Nelson, seeking re-election, filed a lawsuit to count thousands of absentee and provisional ballots in his race that were not counted because voters’ signatures did not match state records.

Provisional ballots may end up making a difference in these races.

From 2006 to 2016, 79 percent of midterm provisional ballots and 69 percent of presidential provisional ballots were counted, according to the U.S. Election Assistance Commission. In 2016 alone, U.S. voters cast 2.4 million provisional ballots, the commission found.

Hans von Spakovsky, a manager in the Election Law Reform Initiative at the right-leaning think tank Heritage Foundation, helped congressional staffers create the provisional ballot protection in his role at the Justice Department in 2002.

“The purpose of the provisional ballot,” von Spakovsky said, “was to make sure that people didn’t lose their right to vote because of a mistake made by election officials.”

Sixteen years later, said Thessalia Merivaki, an assistant professor of American politics at Mississippi State University, the primary reason voters cast a provisional ballot is that there is no record of the voter’s registration in poll books. This may be caused by administrative error. Counties and states need to do a better job, she said, of maintaining and modernizing registration databases.

That may include encouraging more states to join the Election Registration Information Center, a nonprofit that identifies people who may need to update their registration information because they either moved or are considered inactive voters.

(The Pew Charitable Trusts, which funds Stateline, helped launch the center in 2012 through logistical and financial support. It is now independently run and funded by state contributions.)

“We have a lot of evidence provisional ballots are working as a fail-safe,” Merivaki said. “But proactive states maintain clear and accurate registration rolls.”

Local officials, while verifying each individual provisional ballot, can check county databases or reach out to voters for more information, like proof of residence from a utility bill. In some states, voters may be required to verify their registration in person after the election.

Verification can take anywhere from hours to 21 days after polls close, depending on the state, as local election administrators compare the provisional ballot to registration databases, driver’s license records or social security information, Merivaki said. Some states allow voters to correct any wrong information that may have forced them to cast a provisional ballot.

Provisional ballots are most often rejected because the voter isn’t actually registered, the election assistance panel has found. In some states, casting a provisional ballot in an incorrect precinct, lacking a signature on a ballot or illegible handwriting may prompt officials to reject a provisional ballot.

These policies, however, vary by state. Idaho, Minnesota and New Hampshire, which all have same-day voter registration, are exempt by federal law from issuing provisional ballots. And in nearly 20 states, provisional ballots cast in incorrect jurisdictions are partially counted for statewide and countywide races.

A Better Way?

Provisional ballots may help protect certain voters who have been disenfranchised by strict voting laws.

Minorities vote using provisional ballots more often in some places around the country, a 2014 report from the left-leaning think tank Center for American Progress found. In 16 states, the report found, counties with high rates of minority voters used provisional ballots more often than predominantly white counties.

Restrictive voting laws, difficult voting procedures and poorly maintained registration lists all contribute to the heavy use of provisional ballots, according to the report. 

The authors of the report also said, noting that around a quarter of provisional ballots are rejected, that the prospect of minority voices being silenced in the electoral process is “deeply troubling.”

Beyond that, provisional ballots can slow down the voting process.

In a 2013 review of election procedures ordered by President Barack Obama, long lines at polling places were partially blamed on a high volume of provisional ballots. Stricter voting laws, like registration purges and voter ID, can lead to more voters using provisional ballots and slow the process, the study found.

To reduce the number of provisional ballots cast every election, some elections observers have suggested changes to registration procedures. In its 2014 report, the Center for American Progress recommended states modernize voter registration databases, implement same-day registration, provide online voter registration and expand early voting.

The left-leaning think tank Demos, which is based in New York, agrees that same-day registration can help cut down on provisional ballots. However, its analysts also recommend states partially count ballots that were cast in the wrong precinct. This would allow registered voters to participate in a state or federal contest for which they were qualified to vote had they gone to the correct precinct.

A partial count, though, was never the intention of the provisional ballot protection when it was created, said von Spakovsky of the Heritage Foundation.

Provisional ballots remain an important aspect of elections, Mississippi State’s Merivaki said, and those votes are just as valuable as ones from regular ballots. It’s something she wants officials in Florida, Georgia and around the country to understand.

“If counting the provisional ballots stopped, they would deny the right to vote,” Merivaki said. “Flat out.”

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Matt Vasilogambros
Matt Vasilogambros

Matt Vasilogambros covers voting rights, gun laws and Western climate policy for Stateline. He lives in San Diego, California.