What are provisional ballots?
What are the reasons a voter might have to vote on a provisional ballot?
How many provisional ballots were counted in 2004?
What are some of the problems associated with provisional ballots?
What are some best practices states can follow for counting provisional ballots?

What are provisional ballots?

While some states have offered provisional ballots for years, the problems of the 2000 election led Congress to mandate that all states adopt this practice in the 2002 Help America Vote Act. The law requires persons who claim to be registered to vote in a federal election in a jurisdiction but are not on the voter registration list or are otherwise alleged to be ineligible be offered and permitted to cast a provisional, or paper, ballot to be verified and counted after the election.

A number of scenarios can lead to a voter being denied a regular ballot and offered a provisional ballot. A complete list of these reasons would include:

• An erroneous purge of the voter from the registration list, due to misapplication of NVRA, a wrongful felon purge, or administrative error.
• The voter was flagged as needing to show identification but did not have any.
• The voter's registration form was incomplete and the voter was not added to the list.
• The voter registration from was not forwarded to the Board of Elections from the person or agency that collected it and the voter was not added to the list.
• The Board of Elections failed process the voter registration form, although it was complete, and the voter was not added to the list.
• The Board of Elections made an error in transmitting the information on the voter registration form to the registration database/list, and the voter was not added.
• The Board of Elections put the voter's name on the wrong local list.
• The voter went to the wrong precinct (some states).
• A poll worker sent the voter to the wrong precinct (some states).
• The voter went to the wrong polling site (some states).
• A poll worker sent the voter to the wrong polling site (some states).
• The voter voted in the wrong county.
• The poll worker determined the voter's signature did not match the signature in the registration book.
• A voter requested an absentee ballot but either did not receive it or did not send it in.

In 2004, more than 1.6 million provisional ballots were cast, and over 1 million were counted. Seventy percent of provisional ballots cast in states that allow provisional ballots to be cast anywhere in the proper jurisdiction were counted as valid. In states requiring that provisional ballots be cast in the proper precinct, 62 percent were counted.

Sources/More Information:

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

Continuing Failures in "Fail-Safe" Voting: A Preliminary Analysis of Provisional Voting Problems
(Demos) December 6, 2004

As with many other areas of election reform, beyond mandating that provisional ballots be implemented in all states, HAVA leaves the specifics of implementation to be determined by the states, which has resulted in great disparities in how provisional ballots are counted. For example, in 28 states, provisional ballots cast in the wrong precinct but the right jurisdiction were not counted. States had varying rules regarding counting provisional ballots cast as a result of a failure to bring identification to the polls. In addition, poll workers sometimes fail to provide a voter a provisional ballot even when he or she is entitled to one.

In no case should a provisional ballot cast at the wrong precinct but at the right polling site be disqualified. In many urban areas, there are several precincts (or election districts) in the same polling location, such as a public school. Voting at the wrong precinct simply means the voter went to the wrong desk in the right room. As a result, a vote in the right polling site but wrong precinct should be presumed an administrative error, and the provisional ballot counted.

If a voter appears at the polls without identification and was required to present it, election administrators should make every effort to verify that voter's eligibility through available databases. If such verification is made, the provisional ballot should be counted.

States should also give voters up to three days to provide either the HAVA-specified forms of identification or other documentation that will facilitate the state's ability to verify that the person casting the provisional ballot is the same one who registered by mail.

Sources/More Information:

Balancing Access and Integrity: Chapter 2
Working Group on State Implementation of Election Reform (The Century Foundation) July 2005