Votebeat: “The new design makes it clearer where voters and poll workers must sign the envelope. It more clearly delineates which section is to be filled out by the voter or poll workers, officials said, and it provides clearer instructions at which stage of the provisional voting process each section is to be filled out.”
Category Archives: provisional ballots
“North Carolina to send mailers to some 200,000 voters asking for missing registration info”
The AP has the report, following on the DOJ’s case I’ve been blogging.
This report has a piece of info that’s new to me, though:
About half of the 200,000 affected voters would be limited to casting provisional ballots until they provide the information to the state, [NC Board of Elections Executive Director] Hayes said.
It’s my understanding that all of the voters here were validly registered under state law, which means that the voters were necessarily validly registered under federal law. (And that’s independent of whether the state itself had sufficiently complied with federal law.)
Unless the 100,000 people in question are new voters under HAVA who haven’t yet shown any ID, I’d be very interested to know the legal basis for forcing them to vote provisionally.
“DNC steps into voting rights fight in Pennsylvania”
The docket in RNC v. Genser is here. Politico reports on the case here:
The Democratic National Committee is ramping up its fight with the GOP over voting rights, urging the Supreme Court to reject Republicans’ efforts to limit provisional voting in Pennsylvania.
The brief, first shared with POLITICO, argues that the high court lacks jurisdiction to hear the case and that doing so would burden the court with requests to take up “any and every state-law election” dispute in the future.
The Republican National Committee is asking the Supreme Court to overturn a decision by Pennsylvania’s highest court that allows voters to use provisional ballots if their mail ballots have been rejected. Republicans argued that the Pennsylvania Supreme Court had usurped the state legislature’s power to regulate elections when the justices ruled that such provisional ballots must be counted.
Pam Bondi, the 2020 election, Project 2025, and the Ku Klux Klan Act
Pam Bondi’s hearings start today. She’s applying for the job of Attorney General: the lawyer for the United States. Given the shifting loyalties and vindictive proclivities of the President-elect who has put her forward, every Senator has both an obligation and a very personal stake in ensuring that she understands who her prospective client is.
In that process, one piece of the Project 2025 playbook should be front and center.
There’s no shortage of material in the DOJ section of Project 2025. It calls outright for abolishing the independence of the FBI (and all other independent agencies), prosecuting DAs who use their prosecutorial discretion, enforcing an 1873 law against mailing abortion drugs, and on and on. It implies still more, with goals that would be well within elections-have-consequences bounds in responsible hands (including past Attorneys General of both parties), but deeply concerning in others.
But there’s one bit of Project 2025’s section on DOJ that hasn’t gotten anywhere near the attention it should. On pp. 562-564, there’s a portion suggesting shifting responsibility for prosecuting election-related offenses from the DOJ’s Civil Rights Division (CRT) to the Criminal Division (CRM).
The problem here isn’t actually the suggestion to shift responsibility. As a factual matter, the authority to prosecute most election-related offenses, including most versions of the particular statute mentioned in the chapter, already lives where Project 2025 wants it to live (with CRM). The Project 2025 chapter seems to have gotten this wrong based on the author’s misunderstanding of a single out-of-context table.
The problem here also isn’t the fact that when the Project 2025 chapter gives an example of the reason to “shift” to CRM, the example relates to a relitigation of the 2020 election. I mean, it’s a problem we’re still fighting that fight, yes. But it’s far from the biggest problem with the example.
The problem is that the particular example that the Project 2025 authors chose to make their point — the example they were aiming for as a paradigm case — is crazypants. And Bondi should be asked whether she agrees with it.
In 2020, PA’s chief election official, the Secretary of the Commonwealth, sent guidance to counties saying that a voter showing up at the polls but listed on the books as voting absentee should vote a provisional ballot, not a regular ballot. If the mail ballot counted, the provisional wouldn’t. If the mail ballot didn’t count for some reason, but the voter was actually eligible, the provisional ballot should count. One ballot counted and only one ballot counted, for one eligible voter.
Whether the Secretary’s guidance was correct is a matter of state law. In 2024, in a slightly different context, the Pennsylvania Supreme Court endorsed the guidance’s approach. But whether you agree or disagree with that interpretation, either way around, this is a fight about the meaning of state law.
And, to be clear, this is a state law fight about whether the ballot of an _eligible_ voter should be counted in the event of a procedural error (which might have been the state’s mistake). Absolutely no part of this fight, under any reading of the guidance, even remotely suggests that an ineligible voter will be able to vote.
The Project 2025 chapter — in the example they chose to highlight as the paradigm case of DOJ enforcement — says that for issuing this guidance, the PA official “should have been (and still should be) investigated and prosecuted” (emphasis added). For conspiring to deprive Pennsylvanians of their civil rights UNDER THE KU KLUX KLAN ACT (emphasis emphatically added.)
It’s worth saying again. The Project 2025 chapter thinks that a matter of heartland federal prosecution is that the DOJ should send a state official to prison — under the Klan Act — based on a disagreement about whether state law allows an eligible voter to cast a ballot that will be counted. When the state official was trying to ENfranchise the voter.
The reason this case hasn’t been prosecuted isn’t because the authority is with the wrong DOJ division. The reason this case hasn’t been prosecuted is because that prosecution would be insane. I know plenty of conservative federal prosecutors who take their oaths of office quite seriously. I don’t know one who would think this case is proper.
This is an unrecognizable criminal prosecution. So much so that it’s hard to describe how out of bounds this suggestion is. The best I can do is a bad balls-and-strikes metaphor.
Some legal arguments are strikes. Some are balls. (And sometimes the line between depends on the judge.)
Some are wild pitches.
This one is a pitcher completely ignoring the plate and the batter, and trying to fire a fastball as hard as he can directly into the face of a spectator in the stands.
And over the next two days, Pam Bondi should be asked whether she agrees that this is a valid use of DOJ authority.
“Questions about provisional ballots remain as Casey and McCormick withdraw lawsuits”
The Democratic and Republican parties will withdraw 20 lawsuits on behalf of their candidates for Pennsylvania’s U.S. Senate seat following incumbent Sen. Bob Casey’s concession Thursday to Senator-elect Dave McCormick.
Filed in more than a dozen counties, the cases challenged decisions by boards of election on whether to count provisional ballots with mistakes made by voters or poll workers.
But with McCormick more than 16,000 votes ahead, Casey on Thursday evening called McCormick to congratulate him on the win. Hours later, the Pennsylvania Department of State called off a statewide recount triggered by the narrow margin of less than 0.5% of the vote, saying it was in the best interest of taxpayers.
More than 6,000 votes for Casey or McCormick hung on the outcome of the cases, with the McCormick camp arguing flawed ballots should be tossed and the Casey campaign arguing that some should be counted.
Although each side had already won decisions, there was no reason to keep fighting and the parties reached mutual agreement to end the litigation, election lawyer Adam Bonin told the Capital-Star on Friday.
Lawyers for the Republican party did not return calls from the Capital-Star on Friday.
“We’re thrilled for the victories we had,” said Bonin, who filed some of the lawsuits on behalf of Casey’s campaign and the Democratic Senate Campaign Committee. “There were definitely strong arguments on appeal but that battle is for another day.”
Voting rights advocates, meanwhile, are looking ahead to renewed efforts to ensure voters who make a mistake on mail ballots are not disenfranchised.
The Republican National Committee has asked the state Supreme Court to decide whether a requirement to write the date on mail-in ballots is constitutional. Voting rights groups agree the court should take up the issue. …
“Losing GOP candidate for NC Supreme Court challenges 60,000 ballots as recount starts”
News&Observer: Jefferson Griffin, the Republican candidate for North Carolina Supreme Court, requests a recount where he trails by 625 votes while also filing “a series of election protests on Tuesday challenging the validity of over 60,000 ballots cast across the state.”
His complaints, some of which have already been rejected by courts include:
- “[C]ounties improperly counted ballots from voters who voted early but died before Election Day.”
- Votes should be rejected from those “serving a felony sentence as of Election Day.”
- Votes should be rejected from individuals who failed to attach “a driver’s license number or Social Security number” to their voter registrations, even though state law does not require this.
- Votes from “military and overseas voters who have never resided in North Carolina” should be rejected despite laws that appear to permit this in certain circumstances.
“Republicans in North Carolina pass sweeping changes to consolidate power”
Washington Post. North Carolina Republicans are back at it! The North Carolina legislature (controlled by Republicans) is seeking “last-minute inclusions” in a hurricane relief bill that “will strip the incoming Democratic governor and attorney general of significant authority before the GOP loses its legislative supermajority.”
Among the powers being stripped:
- Control over election boards: “The lame-duck bill will shift the ability to appoint members of the state and county elections boards from the governor to the state auditor. That will mean Republicans instead of Democrats will control those boards, which oversee ballot tallies, set voting rules and decide how many early-voting locations to open.”
- Control over judicial vacancies: “the governor must fill any vacancies on the state’s top courts with appointees recommended by the political party of the departing judge.”
The bill also makes it harder for voters to cast provisional ballots: Voters who do not bring a photo ID to the polls will only have three days (previously nine) to show up.
It is unclear if the NC GOP has the votes to pass the measure.
“Despite claiming victory, McCormick challenging provisional ballots in Philly” (Now Updated with McCormick’s Filings)
Republican Dave McCormick may have declared victory in his U.S. Senate race over incumbent Democrat Bob Casey, but in court, the race is still very much an ongoing concern.
McCormick filed a pair of lawsuits Friday morning in Philadelphia challenging 15,000 to 20,000 provisional ballots that city elections officials were set to consider counting this morning.
In a contest where McCormick narrowly leads Casey by roughly 30,000 votes, whether those ballots in Philadelphia – and similarly cast provisional votes from voters in other counties – are counted has the potential to “impact … the outcome of the election,” McCormick’s attorney George Bochetto wrote.
The McCormick campaign did not immediately respond to questions about the lawsuits, including why the filings suggested the ballots could affect the outcome of the election when McCormick has declared victory and said there’s no way Casey could win…
Divided Pennsylvania Supreme Court, In Case Involving Mail-In and Provisional Ballots, Tees Up Potential Independent State Legislature Theory for U.S. Supreme Court
Genser v. Butler County Board of Elections involves a very particular issue under Pennsylvania law, but it raises a potentially larger one that could make it to the Supreme Court.
To simplify just a bit: voters send in their mail-in ballots, which are not allowed to be opened on election day. A machine essentially weighs the sealed envelopes and predicts which ballots do not contain a secrecy envelope (a so-called “naked ballot”), which the state supreme court earlier had said may not be counted under state law. A ballot predicted to lack the secrecy envelope triggers an email to the voter telling the voter that the voter can show up in person and cast a provisional ballot. The dispute in Genser concerns whether that provisional ballot must be counted under state law.
The four-Justice majority reads the PA statutes, in light of the state Constitution to require that the provisional ballots be counted so long as the mail-in ballots are not. The principal dissent for three Justices argues that this is an improper reading of the PA statutes.
A separate dissent argues that this interpretation is so outside the mainstream of interpretation that it “arrogates” the power of the PA legislature in violation of the independent state legislature theory accepted by the U.S. Supreme Court in Moore v. Harper. A separate concurrence takes issue with this interpretation and says that this is a good faith disagreement, not arrogation.
I am not sure how many ballots will fall into this category when voting happens in the upcoming election. But the PA Supreme Court’s opinion today will have the effect that they will be counted, unless there’s a contrary order from the U.S. Supreme Court. ELB readers may remember in 2020 that Justice Alito, facing a similar issue in a case involving ballots arriving within 3 days after election day ordered to be counted during the pandemic by the state supreme court, ordered those ballots sequestered. A sequestration order could happen again, and there could be a fight over the treatment of these ballots.
Let’s hope the margin of victory of the winning candidate in PA exceeds greatly the number of these ballots.
“Bipartisan Election Officials Warn NC GOP Changes Could Cause Disruption at the Polls”
Raleigh News & Observer: “A bipartisan group of senior county election officials cautioned legislators that pending bills could cause significant disruptions to voting, threatening the very election integrity that the bills are supposed to address.” More from WRAL News.
Arizona election contests filed
Let’s start with Attorney General candidate Abe Hamedah. He lost by 511 votes, and a recount is underway. The Arizona Republic story is here:
The lawsuit specifically states that the candidate is not making claims of fraud or nefarious actions in the election, however. That stands in stark contrast to another election lawsuit filed Friday by Republican gubernatorial candidate Kari Lake. Lake, who lost, makes claims of “intentional misconduct” related to problems at the polls.
. . .
Hamadeh and his attorney, Tim LaSota, make seven specific claims in the lawsuit:
- That Maricopa County officials inaccurately marked some people as having voted and thus prevented them from casting ballots.
- That Maricopa County prevented some people who could not prove their identity from casting provisional ballots.
- That county officials from across the state inaccurately tabulated voter preferences when duplicating ballots that machines couldn’t read.
- That the county defendants inaccurately tabulated voter preferences when adjudicating ballots.
- That county officials improperly accepted some early ballots when the signatures on the envelopes didn’t match signatures on file for those voters.
- That county officials improperly counted faintly marked ballots as undervotes.
- That county officials didn’t count some provisional ballots because their voter lists were not properly maintained.
The first allegation deals with the well-documented printer problems at polling sites in Maricopa County on Election Day. The printers at many sites were not producing ballots with dark enough markings to be read by the tabulators, leaving voters with other options.
The simplest was that they could leave their ballot in something called “door 3,” a secure box where ballots are kept so workers can tabulate them elsewhere. About 17,000 ballots were submitted this way, though not all because of the printer problems.
The issues could have affected as many as 30% of polling sites and about 6% of the total Election Day ballots cast.
But if voters wanted to either go to another polling site or to instead cast an early ballot they had received in the mail, they had to “check out” of the first polling site where they tried to cast a ballot. The lawsuit asserts poll workers were either not trained or inadequately trained on how to check people out, which lead to them going elsewhere to cast provisional ballots or to turn in early ballots that were then not counted.
The lawsuit claims 126 people cast provisional ballots that weren’t counted because of this problem, and another 269 people submitted early ballots that weren’t counted, for a total of 395. It also claims a “material number” of voters were denied the chance to even cast provisional ballots later in the day because of this issue.
(While the bulk of concerns are about Maricopa County, Arizona law allows venue in any county in which a contestant (any voter) resides, and here the plaintiffs chose Mohave County.)
Gubernatorial candidate Kari Lake and Secretary of State candidate Mark Finchem each also filed contests, as summarized in the Arizona Republic. As Lake lost by 17,000 votes and Finchem by 120,000, you can imagine that the complaints are a bit more… sprawling, shall we say. You can see the original documents here, which includes, as the Republic described Lake’s complaint, “a laundry list of problems and allegations related to the Nov. 8 election.”
Lake’s complaint repeatedly invokes federal law, so it’s unclear if the contest will be removed to federal court, and it will be interesting to see how the Ninth Circuit would treat such a complaint.
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.
“The Dangerous Part of Georgia’s Voter Suppression Law That No One Is Talking About”
Glad to see my former student Orion de Nevers on the pages of Slate talking about Georgia and provisional ballots.
“Ohio Primary Raises New Election Worry: Rejected Provisional Ballots”
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.