Provisional ballots have been incessantly labeled the "hanging chad of 2004," and there has been litigation regarding the counting of those ballots in Michigan and several other states over the past few weeks.

Under HAVA, any voter who does not appear on the voter list or is told by the poll official he or she is not eligible to vote has the right to cast a provisional ballot, the legitimacy of which will be determined later. The purpose of that change was to ensure that no voter would be turned away from the polls. Moreover, since HAVA is to be read in conformance with the 1993 National Voter Registration Act (the motor voter law) it had widely been thought that "jurisdiction" would be defined to be the county.

Many states are not reading it that way, however, and Michigan is one of them. The Michigan secretary of state instructed the counties that if a voter casts a provisional ballot at the wrong polling site, then the provisional ballot must not be counted.

The Michigan Democratic Party sued, contending HAVA allows voters to cast provisional ballots if they are in the correct city, village, or township and that the ballot should be counted for the races in which the voter was eligible to vote—that is, statewide races and the presidential election.

Of all of the 28 states that are taking the position that provisional ballots cast in the wrong precinct should not be counted for any race, including statewide races and the presidential election, Michigan's stance is among the most curious. That's because the state's long-time voter registration system was used as the model for the recommendation by the National Commission on Federal Election Reform that all states have a computerized, statewide voter registration database -- a recommendation that was included in HAVA. The Commission said:

Mandated under Public Act 441 of 1994 and placed into operation for the 1998 election cycle, the [database] links election officials throughout the state to a fully automated, interactive statewide voter registration database to achieve a wide variety of significant advantages including:

• The elimination of duplicate voter registration records in the system.
  
• The streamlining of the state's voter registration cancellation process.
  
• The elimination of time consuming record maintenance activities.
  
• The elimination of registration forwarding errors and duplicative tasks.

Why, therefore, would it be so difficult in Michigan to count a provisional ballot cast in the correct township, city, or village but not the particular polling site?

Another interesting point in this case is that the United States Department of Justice decided to intervene. The Justice Department filed a brief asking the judge to dismiss the suit, arguing that HAVA does not give citizens the right to sue, and provisional ballots cast in the wrong precinct should not be counted.

In the first round of litigation, a federal judge agreed with the Democrats and ordered that provisional ballots cast by voters in the wrong precinct but in the right county, city, or township on November 2 must be counted.

But the Democrats lost in the second round: on Tuesday, the 6th Circuit Court of Appeals reversed. Provisional ballots cast in the wrong polling site in Michigan will not be counted.

Machines

HAVA provided over $6 million to the state specifically for the replacement of punch card and lever machines. Although Michigan plans to uniformly move to optical scan machines by 2006, parts of the state will be using both kinds of flawed machinery this November 2, including some of its most populous counties.

As detailed in previous reports, punch card and lever voting machines were singled out by HAVA for a reason: they lose a lot of votes. This is even more true for African American voters. Moreover, since some parts of the state will be using the more reliable technologies, there might be an equal protection-based Bush v. Gore claim in Michigan as well.

Vote Suppression?

Several weeks ago, it was reported that a white Republican state legislator said, "If we do not suppress the Detroit vote . . . we're going to have a tough time in this election." Detroit is 83 percent African American. Since that time, suspicions have been roused that there will be efforts at intentional voter suppression in Michigan.
While this particular individual might not have realized how seriously his remarks were going to be taken, we do know that the parties are planning on posting hundreds of "monitors" at the polling sites ready to challenge voters' eligibility to vote. According to the Detroit Free Press, "Democrats say that in the past they've gotten reports of people stopping minority voters in places like Detroit, Flint and Pontiac, asking if they have outstanding debt or owe child support. The party alleged a dozen instances of voter harassment in the 2002 general election. In 1999, Hamtramck residents were accused of questioning Arab-American and Asian-American voters' eligibility based on their ethnicity." At the same time, Republicans allege that liberal groups and Democrats have filed false voter registration applications.

Down the road, reform and revision of the Help America Vote Act may help to ensure the use of better technology and vote-counting techniques. Unfortunately, as long as the country remains divided politically and in other ways, the ugliness that has come to define our elections process may continue.

Tova Andrea Wang is a program officer and Democracy Fellow at The Century Foundation. She is most recently the author of an issue brief entitled Playing Games with Democracy, on how the Help America Vote Act is being used to disenfranchise voters.