October 13, 2004

Some comments on the Missouri provisional voting case

Following up on my post yesterday, attorney Sam Hirsch sent the following comments to the election law list, which I am reposting here with his permission:

    Although Rick focused on the equal-protection discussion at the end of the Missouri court's opinion on provisional voting, what struck me was the narrowness of the court's ruling on the HAVA issues. As Rick notes, the HAVA provisional-voting requirements are currently being litigated in several states.

    First, the Missouri plaintiffs forced the state and local defendants to capitulate and count the votes of the individual plaintiffs and all other similarly situated persons. Apparently, in the wake of plaintiffs' filing their complaint, the Kansas City election authority decided to count every provisional ballot cast by an eligible voter in Kansas City in the August 2004 primary election, regardless of whether the provisional ballot was cast in the "correct" polling place or the "incorrect" one. Until the defendants agreed to count all of these votes, and to include them in the final certified election returns, the court did not lift the temporary restraining order that it had imposed on the defendants shortly after the case commenced.

    Second, in the future, all Missouri election officials will have to count all provisional ballots cast at the "incorrect" polling place unless they have evidence that the voter was expressly directed to his or her "correct" polling place and refused to go there (or to a central polling place).

    Third, because the court viewed the individual plaintiffs' claims against Missouri's provisional-ballot-counting rules as moot (because their votes had indeed been counted after the plaintiffs filed their complaint), it dealt only with plaintiffs' secondary and tertiary claims involving (a) whether voters can be directed to another polling place (without first being given the option of voting provisionally at the initial polling place), and (b) whether the affirmation signed by provisional voters should declare eligibility to vote at a specific polling place. Only those claims were clearly rejected in the court's order, since the plaintiffs' central claim was deemed to be moot.

    Fourth, and most important, the court made it clear that a blanket rule stating that "[p]rovisional ballots voted in the wrong polling place [i.e., any polling place other than the one assigned to the voter's residence] shall not be counted" would be "troublesome" and "illogical" and likely in "direct conflict with the federal statute [HAVA]." That point could be quite significant in the other states that are now involved in litigation over such blanket legal rules.

Posted by Rick Hasen at October 13, 2004 10:00 AM