Verifying provisional ballots may be key to election
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If there is a hanging chad of the 2012 presidential election, it could be the provisional ballots offered to voters who cannot meet state identification requirements at the polls.
Across the country -- and in places, like Pennsylvania, considered swing states this November -- tightened restrictions at the polls have increased the likelihood that voters will cast ballots that will count only if they are later verified. The procedures for verifying these ballots vary throughout the country.
In Ohio, where observers are watching a legal challenge to state laws about provisional ballots, Daniel Tokaji, a professor at The Ohio State University Moritz College of Law, said he expects a close vote would lead to disputes over which ballots to count, whether because they were cast in the wrong precinct or without certain identification.
"If you're worried about what is going to be the next Bush v. Gore, it's likely to be either provisional ballots or absentee ballots," he said. "Those can be the big things people can be expected to fight over in the event of a close election."
When Congress passed legislation to reform the nation's election systems after the contested 2000 presidential election, it required states to offer provisional ballots, already used in some places, to people not listed on the voter rolls. The procedures for verifying those ballots vary throughout the states, and the rise of voter identification laws has led to new circumstances and requirements.
The Pennsylvania voter ID law recently upheld by a state court allows people without acceptable identification to vote by a provisional ballot that would count if they verify their identity within six days. Ohio voters have 10 days to provide acceptable identification, while in Florida, election officials verify the ballots by matching signatures.
In the 2008 general election, states reported 2.1 million provisional ballots, with three states -- California, New York and Ohio -- accounting for nearly 60 percent of the total, according to the U.S. Election Assistance Commission, established by the Help America Vote Act of 2002. The commission reported that 67.3 percent of provisional ballots were counted in whole or part.
Of 10 top battleground states in the upcoming presidential election, Ohio had the highest rate of provisional ballots -- 3 percent -- in the 2008 general election, according to the commission's report on voting in that contest. In Colorado the rate of provisional voting was 1.9 percent, while in Pennsylvania, Nevada, Virginia, Iowa and North Carolina, it was less than 1 percent. New Hampshire, exempted from the provisional ballot requirement because it had Election Day registration, reported no provisional ballots. Wisconsin, also exempted, reported so few provisional ballots that the report counts them as 0 percent.
Daniel Smith, a professor of political science at the University of Florida, said he believes changes in election law -- whether the advent of the voter ID law in Pennsylvania or a tightening of the rules on address changes in Florida -- will make provisional ballots "the sleeper" story of the general election this year.
"I don't see how it's possible not to have more because of these restrictive Election Day voter identification laws," he said. "I just don't see how they can lead to anything except more challenges by poll workers or by groups observing the process."
Mr. Smith, who testified before a U.S. Senate subcommittee on the recent changes to Florida law, said its important to remember that provisional ballots are less likely to count. In the 2008 general election, 48.6 percent of Florida provisional ballots were ruled to be valid, according to the state.
In Pennsylvania, the Washington D.C.-based Lawyers' Committee for Civil Rights Under Law is working with voting rights groups and election officials across the state to try to ensure election judges are educated on the nitty-gritty of the state's new law, and they don't turn away eligible voters or needlessly force them into provisional balloting.
"Every year there are problems with elections about registration, antiquated databases, clerical errors, data input problems, machine failures, long lines. Our biggest concern this year is instead of finding a solution to a real problem, we'll see a negative impact on eligible Americans' ability to vote," said Eric Marshall, manager of legal mobilization for the Lawyers' Committee.
The committee will have legal teams around the state Nov. 6 and monitor its voting hotline -- 1-866-Our-Vote -- to watch for polling problems. That includes looking out for possible voter -- or election judge -- intimidation. Mr. Marshall said the high-profile public debates about Election Day voter fraud are spurring worries within his group that Tea Party-affiliated election watchers could disrupt polling places.
"There are heightened concerns [that] eligible, responsible voters could be intimidated on Election Day," he said, and his group is working with election officials to review behavior at polling places and protocols for removing unwarranted poll visitors.
Meanwhile Republican supporters of Pennsylvania's law could be watching to make sure election workers comply with it.
"The notion of civil disobedience -- of poll workers not following the law -- that gives me pause," said Pittsburgh lawyer and county councilwoman Heather Heidelbaugh, co-chair of the Republican National Lawyers Association. "We're all faced with laws we don't agree with but most of us follow them."
In Commonwealth Court testimony during the legal challenge of the voter ID bill, Allegheny County elections director Mark Wolosik said implementing the new ID requirements during an expected 70 percent turnout presidential election could trigger some 35,000 provisional ballots to be cast, up from 2,800 in the county in 2008. Polling places could be choked with two lines, one with voters waiting for IDs to be checked and another waiting for provisional ballots.
Deputy Philadelphia commissioner Jorge Santana, an opponent of the legislation, testified he is "anticipating a mess" on Election Day. Election officials there may print up to 200,000 provisional ballots.
Supporters of the state's voter ID bill downplay those fears. County election officials from all 67 counties met in State College last week and reviewed its education program for poll workers, and the Department of State is sending all of the roughly 40,000 workers statewide updated training guides.
A study by the Indiana University-Indianapolis School of Law of that state's implementation of voter ID in the 2008 election found of the 2.8 million people who cast ballots that year only 1,039 arrived at the polls without valid ID and cast a provisional ballot. (The bad news: only 137 of those ballots ended up being counted.)
Ms. Heidelbaugh said she does not expect battles over the provisional votes unless, of course, the final margins are close. "That's when concerns arise. People want to know the process is fair, because the American people can accept a loss or a win when they believe the process is fair."
If winning the state does come down to provisional ballots or related issues, it would mean armies of lawyers would pour into the state.
"If it is a close election, a repeat of Bush v. Gore and we need one state to decide the win and it comes down to Pennsylvania, I won't even be able to get into the courthouse," she joked.
Voting expert Rick Hasen of the University of California, Irvine said he expects a "relatively modest" depression on voting due to Pennsylvania's law, probably closer to the 1 percent argued by the Corbett administration than the 9 percent statewide estimate pushed by opponents.
But it is really anybody's guess what will happen.
"We don't know. It all depends in Pennsylvania on how the law his implemented," he said.
Last week the state Supreme Court scheduled Sept. 13 arguments in Philadelphia on the law.
First Published August 26, 2012 12:00 am