We May HAVA Problem
Will "provisional ballots" be the new chads?
Monday, October 18, 2004 12:01 a.m. EDT
It's a safe bet you will hear more about provisional ballots before Election Day--and a lot more if the election goes into overtime again. The provisional ballot could become this year's equivalent of Florida's infamous punch-card ballot, and it could decide who wins the presidency.
This is the first election held under the Help America Vote Act of 2002. One of its key provisions is a requirement that people in all 50 states whose names aren't on voter registration rolls be given a provisional, or conditional, ballot that will then be cross-checked with public records after the polls close to see if it is valid. "If I had to pick the one thing that will stir up anger and lawsuits on Election Day, it will be provisional voting," says Doug Chapin, executive director of the nonpartisan Electionline.org.
With 200,000 polling places nationwide, an average of five provisional votes per precinct would mean a million such votes. But in a year when manic registration efforts make it likely there will be a flood of first-time voters, officials expect far more. In Los Angeles County alone more than 100,000 people voted provisionally in 2000, with about 60% of them ultimately declared valid.
But that's the rub. Democrats are preparing to make aggressive media and legal arguments that almost all provisional votes must be counted, a reprise of their 2000 Florida rallying cry of "Count every vote." Yesterday Eric Holder, a top official in Bill Clinton's Justice Department, told "Fox News Sunday" that "if every vote is allowed to be cast, and if every vote is counted, John Kerry will be president within a day of that election." Asked how he could guarantee that, Mr. Holder replied "you heard it right here" and repeated his claim.
This year harried election officials are likely to be overwhelmed by complaining voters. To keep order and make sure the lines at polling places don't become intolerable, officials will hand anyone not on their lists a provisional ballot. "All of those will be counted only after everyone's else's ballots have been counted, and after everyone knows exactly how close the race is," says Mischelle Townsend, a former registrar of Riverside County, Calif.
It's at that point the lawyers are likely to jump in if there's a close race. DeForest "Buster" Soaries, chairman of the federal Election Assistance Commission, warns there is a risk poll workers won't be trained on how to properly handle provisional ballots and that "the manner in which the ballots are verified could be challenged."
National Journal says the verification process is a potential gold mine for litigators: "Election officials have to research each provisional ballot to figure out if it's valid. That can take as long as an hour if the voter's name doesn't quickly turn up--an excruciating amount of time for harried election officials scrambling to meet tight deadlines." Conny McCormack, the top election official in Los Angeles County, confesses: "It becomes a competition over what's more important, accuracy or speed." In Florida, state law requires that provisional ballot certification be completed within two days.
But lawsuits could delay for weeks the final decision in almost any photo-finish race. Take the 35-day delay in determining the winner of Colorado's Seventh Congressional District in 2002. Republican Bob Beauprez led Democrat Mike Feeley by only 386 votes on election night, but 3,800 provisional ballots remained to be examined. Complicating matters further, each of the three counties in the district had different rules on which ballots should be tossed out and which ones should be counted.
In Colorado, a person voting provisionally had to swear he was qualified to do so and check off a box indicating a reason for casting a provisional ballot. Clerks in Arapahoe and Adams counties tossed out ballots in most cases if voters failed to select a reason. Jefferson County printed its own ballot envelopes, which did not have the same boxes. Officials there counted all qualified provisional ballots, even if the voter didn't give a reason. Then a state district court judge stepped in and ordered clerks in Arapahoe and Adams to count every qualified provisional ballot. The legal wrangling didn't end until Dec. 10, 35 days after the election, when Mr. Beauprez was declared the winner by 121 votes.
Both parties are deploying thousands of lawyers, who will no doubt look at Colorado's experience in devising their own litigation this year. Postelection suits will no doubt cite U.S. Supreme Court's Bush v. Gore decision, in which the majority of justices ruled it was unfair for Florida counties to apply different standards during punch card recounts. Expect many more such "equal protection" arguments this time.
A total of 26 states and the District of Columbia require that a provisional ballot be cast in the voter's local precinct. They include the battleground states of Florida, Michigan and Missouri. Other states, such as Pennsylvania and Arkansas, will count a voter's choice for president and other national offices even if he casts his ballot at a different polling station.
Ohio, the most heavily contested swing state in the country, is naturally in the middle of pre-election litigation over provisional ballots, Last Thursday, federal district judge James Carr overturned longstanding state law and ruled that Ohio voters may cast provisional ballots even if they are in the wrong precinct. "If the provisional voting right created by the Help America Vote Act saves but a single vote its purposes will have been accomplished, and its adoption justified," Judge Carr wrote in a classic example of judicial activism. "If even a single vote is lost due to the failure to implement HAVA, that loss alone is irreparable."
Ohio's Secretary of State Ken Blackwell, a Republican, realizes that Democrats are trying to cast him as the villain for defending the state's provisional voting restriction. "They are trying to make me into a black version of Katherine Harris, but it won't work," he told me last month. He says that allowing voters to cast ballots outside their precincts would lead to chaos and invite "stop and shop" multiple voting. He points out that Mr. Soaries of the Election Assistance Commission has said HAVA allows states to determine their own rules on how to count provisional ballots. He also notes that a federal judge in Missouri last week ruled that state's requirement that provisional ballots only be counted in a voter's precinct does not violate federal law as long as that voter is directed to the correct precinct.
Mr. Blackwell is appealing Judge Carr's ruling. But even if he wins, the controversy won't go away. Before Judge Carr's ruling, election officials in heavily Democratic Cuyahoga County, which includes Cleveland, had said they would defy the state law requiring provisional ballots only be handed out in the correct precinct. "We err on the side of the voter," said Michael Vu, director of the county's Board of Elections. "Nobody is going to be turned away at the polling location."
You can also expect bitter criticism of the U.S. Justice Department's efforts to both prevent voting rights abuses and combat voter fraud. Rep. Jesse Jackson Jr., an Illinois Democrat, told Salon magazine last month there has been "a lack of federal enforcement" of voting rights laws. "It's almost as if the Ashcroft Justice Department has ignored the history of voter intimidation. They have sanctioned voter terrorism."
Evidence of such "terrorism" is thin or nonexistent, but that won't prevent ugly charges from being traded as Election Day grows nearer. Last week, a 66-page Election Day manual produced by the Kerry campaign and the Democratic National Committee urged political operatives to "launch a 'pre-emptive strike' " in case "no signs of intimidation techniques have emerged."
If the election is close--meaning the leading candidate isn't ahead by more than the "margin of litigation," look for the battles over provisional ballots to be the centerpiece of the postelection campaign.
Mr. Fund is author of "Stealing Elections: How Voter Fraud Threatens Our Democracy" (Encounter Books, 2004), which is available from the OpinionJournal bookstore.
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