Category Archives: provisional ballots

How to guarantee the right to cast a ballot?

I have seen a lot a skepticism lately about relying on courts to protect the equal right of eligible voters to participate in an election by casting a ballot and having it counted accurately. But unless Congress is going to exercise its constitutional power to create an entirely new federal bureau of election administration to run congressional elections (and states would willingly let this new federal bureau administer other elections, like gubernatorial and the popular vote to appoint presidential electors), what’s the alternative?

How can we tell if every eligible voter who wants to cast a ballot is meaningfully able to do so in a specific election (like the upcoming midterms)–and thus is not being denied their fundamental right to vote? First, assuming a state does not have same-day registration, the voter must have an adequate opportunity to register in advance. While same-day registration certainly makes access to the ballot easier, I would not argue that the absence of same-day registration is a denial of the right to vote, as long as the state provides its eligible citizens with a genuine opportunity to register in advance. If state officials failed to do that, in violation of existing federal law, it would be necessary to turn to the courts to enforce that right. (And even if federal law were to require same-day registration nationwide, it would be necessary to rely on federal-court enforcement of that right in the event of noncompliance, deliberate or otherwise, by state and local election officials.)

Assuming eligible citizens have a meaningful opportunity to register in advance, what about their opportunity to cast a ballot? The essential role of provisional ballots, as required by HAVA, should not be overlooked in this respect. All voters who believe themselves to be registered have an existing federal-law right to cast a provisional ballot. I worry about long lines at the polls as a practical obstacle to voters wishing to cast a ballot, including a provisional one if necessary, but voters who want to make sure they are not denied their right to vote must insist that they cast at least a provisional ballot and refuse to leave their polling place without being able to do so. If state and local officials fail to comply with this existing federal-law obligation to give a provisional ballot to all voters who request one, it would be necessary to go to court seeking an emergency TRO to make sure these provisional ballots get into voters hands while they remain waiting in line.

Compliance with the existing federal-law obligation to give voters provisional ballots is especially important in a presidential election for this reason: if voters who want to cast a ballot but who are denied the opportunity to cast one and leave their polling places without casting one, there is no possibility of a do-over after Election Day has passed, at least not under existing federal law. Why? Because if the claim is that a state’s popular vote in a presidential election is fundamentally defective because there were a group of voters (say, for example, many in Atlanta) who were denied their right to cast a provisional ballot, then the popular-vote election for the purpose of appointing the state’s electors will have “failed to make a choice on the day prescribed by law” under 3 U.S.C. 2, thereby giving the state’s legislature the right to choose an alternative method of appointing electors (including direct appointment by the legislature itself).

Thus, as we contemplate the possibility of partisan state and local election officials (along with partisan state legislatures) attempting to engineer electoral outcomes in contravention to free and fair elections, including by denying eligible citizens the right to cast a ballot, we ultimately must rely on courts to uphold the law that guarantees the right to cast a ballot. Above all, this includes the key provisions of the federal Help America Vote Act that insist that no voter be turned away from the polls without having a chance to cast a provisional ballot, which must eventually be counted if indeed the voter was registered and eligible to participate in the election as the voter believed. I’m afraid that, as we think about how to safeguard democracy from the very real dangers that exist, we are neglecting the need to remain vigilant about the judicial protection, if necessary, of the essential right to cast a provisional ballot.

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“Ohio Primary Raises New Election Worry: Rejected Provisional Ballots”

Steven Rosenfeld:

In addition to untold tens of thousands of mail-in ballots being delayed by postal delivery and possibly disqualified, thousands of provisional ballots may also be in play as Ohio’s verification process unfolds after Election Day—where they are the last votes to be counted. (In 2018, nearly 101,000 Ohioans cast provisional ballots, the U.S. Election Assistance Commission reported. Only California and New York cast more.)

For Ohio’s April 28 primary, mail-in ballots postmarked up to one day (April 27) before the election can arrive up to 10 days later (May 8) and still count. County election boards have one additional day (May 9) to validate provisional ballots before counting them.

Disqualifications and delays of hundreds of thousands of ballots could undermine the public’s acceptance of the outcome of the fall’s general election, the nation’s leading scholars in election law, politics and media said in a just-issued report coordinated and produced by Richard Hasen, a University of California, Irvine, law and political science professor.

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“All Voting is Local Report Finds Racial, Income and Age Disparities in Provisional Ballots Use in Ohio’s Franklin County”

Release:

Franklin County voters are more likely to cast provisional ballots – and have those ballots rejected – than other large counties in Ohio, according to a new analysis of 2018 election data by All Voting is Local released today. The report, Rejected: How the Provisional Ballot System in Franklin County, Ohio Fails Voters found Black, low-income and young voters cast a disproportionately high number of provisional ballots and urges county officials to confront the inequities with comprehensive voter education and increased poll worker training.

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Breaking: Federal Court, Citing Evidence of Vulnerabilities of Georgia Voter Registration Database, Issues TRO Giving Some Voters Casting Provisional Ballots Chance to Have Vote Counted Before Kemp-Abrams Race Results Certified

You can find the 56 page opinion in Common Cause v. Kemp at this link. From the order:

Plaintiff Common Cause Georgia filed this action against the Georgia Secretary of State1 seeking emergency injunctive relief to ensure that provisional ballots cast by eligible registered voters in the 2018 general election are properly counted. According to Plaintiff’s Complaint, information in the State’s voter registration server, used at the polls to determine whether voters are eligible to vote, is vulnerable to multiple security breaches and exploitable by manipulation of voter data. Plaintiff alleges that Brian Kemp, as Secretary of State, failed to maintain the security of voter information despite known vulnerabilities leading up to the 2018 election. Plaintiff further alleges that the Secretary’s knowing maintenance of an unsecure, unreliable voter registration database increased the risk that eligible voters have been and will be unlawfully removed from the State’s voter registration database or will have their voter registration information unlawfully manipulated or mismanaged in a manner that prevents them from casting a regular ballot.

Under the State’s existing provisional ballot scheme, a voter whose name is not found on the voter registration list may only vote by casting a provisional ballot, and such ballot will not be counted if the voter’s eligibility cannot be verified because the voter’s name is not found on the voter registration list maintained by the Secretary of State. As a result of the Secretary’s actions, Plaintiff alleges that eligible voters who have taken the required steps to register and maintain their registrations may – through no fault of their own – arrive at the polls and not be permitted to cast a regular ballot and therefore suffer disenfranchisement from the voting process. Plaintiff seeks an injunction on the basis that the State’s existing provisional balloting scheme: (1) infringes upon the fundamental right to vote and imposes an undue burden on eligible voters in violation of the due process clause of the Fourteenth Amendment; and (2) violates the Help America Vote Act (“HAVA”) requiring the State to count provisional ballots if voters are eligible to vote.

However, Plaintiff seeks this relief if there is a statistically significant increase2 in the percentage of the provisional ballots cast, relative to the total number of votes in the 2018 elections as compared to prior elections. Currently pending before the Court is Plaintiff’s Motion for Temporary Restraining Order and Expedited Discovery [Doc. 15] filed the day after the general election on November 7, 2018.3 In the motion, Plaintiff requests that the Court enter a temporary restraining order (“TRO”) enjoining the rejection of any provisional ballots cast during the 2018 general election on the basis that the voter’s name was not found on the voter registration list, pending a decision on the permanent relief requested in this case. In the hearing, Plaintiff clarified that the TRO request seeks very limited relief for an order preventing the final rejection of provisional ballots for the narrow class of persons whose information was not shown in the State’s registration database during the State’s two-week election certification timetable provided in O.C.G.A. § 21-2-499(b).

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“Kansas’ ballot box has too many locks”

Wichita Eagle editorial:

Kansas handed out 40,872 provisional ballots and discarded a third of them. Some reasons for throwing them out: The voter moved to another county but didn’t update registration; trying to vote in the wrong jurisdiction; and not being registered at all.

One obvious weakness in the system came from Kansas’ online registration site. Residents went to a voting place thinking they were registered because of misleading confirmations in the online system.

The election office knew of the erroneous confirmations but didn’t notify voters. The election office told county officials to count the ballots of those affected only if they brought a printout of their online confirmation. Otherwise, those voters were given provisional ballots that were later discarded.

It’s not known how many online registrants had ballots thrown out because of the website mistake, but even a few is too many. Voters who make the effort to register online should have confidence in the system to know they’re registered if a confirmation message appears. Online registration should be the easiest and most accurate way to become a Kansas voter.

Kobach should spend the fall making sure the avenues that led to so many dismissed ballots are shut by next August’s primaries, while still maintaining the integrity of the voting process. For a state our size, tossing that many ballots isn’t trying to help voters – it’s more likely trying to shut them out.

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Rep. Issa, Clinging to Narrow Lead as Ballots are Counted, Says Democrats Will Force Counting of Ballots from “Illegal, Unregistered Voters”

At the time of this writing, Rep. Darrell Issa leads challenger Doug Applegate for California’s 49th congressional district by about 3,700 votes. But there are still an unknown number of provisional and other ballots left to be counted.  On Friday afternoon, Rep. Issa sent out the following incendiary fundraising email:

See, I won my race by 2.2%, but there are still as many as 103,787 ballots left to count, including many provisional ballots. . . . 

Because of those lies many later voters were influenced and could bring the count to within 1%. Once the count is that close, Democrats will attempt to force the Registrars to allow thousands of illegal, unregistered voters to influence the election. We cannot let that happen.

I will not allow my consituents (sic) voices to be cancelled by those who do not have the right to vote in our elections.

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“The election might not end on Tuesday night — and that’s okay”

Ned Foley and Charles Stewart WaPo oped:

Moreover, it would be reasonable for a candidate behind by several thousand votes in a state critical to winning the electoral college to think it possible to make up the difference by provisional ballots. Our research shows that in 2012, President Obama extended his margin of victory in multiple battleground states by more than 20,000 votes during the time between election night returns and final certification of the results. Obviously, these gains didn’t make a difference in the outcome, because Obama already had won. But they show that votes counted after Election Day could determine the outcome of a much closer election.

 Gains of this magnitude are much larger than what routinely occurred before the enactment of Help America Vote. While other factors may play a role, such as increased reliance on mailed ballots, our statistical analysis indicates this increase is largely due to provisional voting. It also explains why the overtime vote tends to favor Democratic candidates, whose voters are disproportionately affected by the kind of circumstances (such as a change of address) that can cause the need to vote provisionally. In other words, an election that is not decided on election night is more likely than not to end up favoring Hillary Clinton.

Because no count is officially complete until it includes all valid provisional ballots, every state has a well-rehearsed operating manual for conducting this procedure. Missouri’s experience in 2008 is instructive. It took 15 days to determine that John McCain narrowly beat Obama there (although the outcome didn’t alter Obama’s overall electoral college victory). Reviewing Missouri’s provisional ballots, which kept the state “too close to call” for two weeks, proceeded without difficulty, and there is good reason to think that this model could work even when an overtime state was necessary for reaching an electoral college majority.

Thus, if this year’s presidential election ends up being closer than previously expected, we should be prepared for the possibility that provisional ballots take us into extra innings. This won’t be a sign that the system is “rigged,” but that it’s working as designed.

 

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Breaking and Big: En Banc 9th Circuit, on 7-4 Vote, Won’t Require AZ to Count Ballots Cast Out of Precinct; Next to #SCOTUS?

The other shoe just dropped in Arizona.

The Ninth Circuit, en banc, issued this short order declining an injunction pending appeal on the en banc case, and making it clear that when the en banc court considers this matter fully, what will not consider whether such ballots cast in this election should be counted. The court gave a quick cite to the Purcell principle in a short order.

This is a big deal, because there will be a lot of these ballots if history is any guide, and if the presidential election or any other election comes down to whether or not to count these provisional ballots, this matters a lot.

I expect that Democrats will take this to the Supreme Court, as this will be the only chance to get these ballots potentially counted for this election. I don’t think the chances that the Court will issue an injunction pending appeal are high. This looks like one of those cases that will divide 4-4. Hard to see a fifth vote for the argument that AZ’s rule violates Section 2 of the Voting Rights Act coming from Kennedy or Roberts. Possible, but unlikely.

And because this involves the counting of ballots after the election and not the collection of absentee ballots before the election (in the other aspect of the Feldman case), the timetable at the Supreme Court will be a bit more relaxed (but still super expedited).

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Breaking: 9th Circuit Grants En Banc in AZ Case Involving Counting Out-of-Precinct Ballots

Order.

(Confusingly, there are now two en bancs named Feldman stemming from the same AZ case: this one on out of precinct ballots and the other on “ballot harvesting”).

From my coverage yesterday:

Same panel as in the other aspect of the Feldman case, same 2-1 split: this time, whether Arizona’s rule that ballots cast by a voter in the wrong precinct should not count (for those races that the voter was eligible to vote in) violates Section 2 of the Voting Rights Act. The district court denied the preliminary injunction. The 9th Circuit, in a Judge Ikuta opinion, affirmed, relying in part on the Purcell princple. Chief Judge Thomas dissented, in a dissent filled with graphs showing how much of an outlier AZ is when it comes to ballots cast in the wrong precinct, and the racial disparities of this rule.

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9th Circuit, on 2-1 Vote, Rejects Argument AZ Must Count Ballots Cast in the Wrong Precinct

Same panel as in the other aspect of the Feldman case, same 2-1 split: this time, whether Arizona’s rule that ballots cast by a voter in the wrong precinct should not count (for those races that the voter was eligible to vote in) violates Section 2 of the Voting Rights Act. The district court denied the preliminary injunction. The 9th Circuit, in a Judge Ikuta opinion, affirmed, relying in part on the Purcell princple. Chief Judge Thomas dissented, in a dissent filled with graphs showing how much of an outlier AZ is when it comes to ballots cast in the wrong precinct, and the racial disparities of this rule.

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