[EL] Virginia provisional ballots, etc.

[Greenberg, Kevin]

We should expect a dramatic rise in these issues as we confront the implementation of Voter ID "anti-fraud" provisions.

Traditionally, it seems to me that we have had four types of provisionals:

1) Wrong pew or wrong chapel;
2) Pollbook error;

These provisionals are almost always easily resolved through self-proving mechanisms and internal-audits by competent election board staff.  For example, in Philadelphia in November 2012, an entire class of citizens (those who turned 18 after attempted registration but before Election Day) were wrongfully excluded from pollbooks due to a programming error.

Potentially one would need testimony that an application was submitted and not processed, but that kind of evidence is almost impossible to find in a manner that is more than "I said so" and the courts tend to discount pure individual testimony.   I don't recall seeing this tried, or being successful, without additional proof.

3) Absentee issues;

Absentee-related provisionals are only an issue in some states where the process defaults to the absentee rather than the Election Day vote.  This is not everywhere.  In Pennsylvania, for example, someone who votes absentee expecting to be out of county, but turns out to be in county, is obligated to vote in person.  Before absentees are opened, they are checked against the pollbook and where the voter has voted in person, the absentee envelope is never opened.

My understanding is that this is the typical historical issue in Virginia, for example.

4) Non-registered who are being humored.

Non-registered voter provisionals are an essential component of keeping the line moving at crowded elections.  Since the advent of provisional ballots in Pennsylvania, I do not recall seeing anyone ever show up to fight for such a ballot when it doesn't turn out to be either a wrong church/pew or pollbook error.  Hopefully these are followed up with letters and voter registration applications.

We now have a fifth category:

5) Voter ID issues

This will be an all consuming job in races such as this one, and opens the door to the most noxious opportunities.  For example, does a party challenge only registered voters in another party?  Another race?  Is it permissible for campaigns to go find voters and ask how they voted before proceeding on their ballot (they will, I am sure, where the number of provisionals is manageable)?  This opens the door to not only outcome driven determinations but also to the most toxic of outcomes.  Will we need rules here that look like the rules for discrimination in jury selection?  What is the mechanism for judicial enforcement?

Yet one more reason to stop/rollback Voter ID laws.

Kevin Greenberg
(215) 279-9912


From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Foley, Edward
Sent: Monday, November 11, 2013 9:48 AM
To: Rick Hasen; law-election at UCI.edu
Subject: [EL] Virginia provisional ballots, etc.

As a result of some Twitter exchanges this morning (thanks to Brian Schoeneman and Doug Chapin), I know understand a distinction that I did not appreciate last night: a provisional voter need not show up in order to have the ballot count IF the local board has enough information without the voter's presence in order to validate the ballot.  The current dispute in Virginia concerns the procedures for giving the local board additional information that might help to have the ballot count.   According to the new directive from the State Board of Elections (which may or may not be a change in the rules-it is certainly alleged to be a change, as Rick has blogged, but I'm not clear on that point yet), the provisional voter must show up in person with any such additional information; a representative cannot show up to supply that same information without the voter's presence.

This distinction relates to something I've wondered about since first studying provisional ballots in the aftermath of HAVA.  How many provisional ballots can self-validate-in other words, need no additional info in order for the local board to recognize their eligibility to be counted?  Does anyone have any statistics on that, either for Virginia specifically or other states?

Relatedly, I've also wondered the extent to which local boards might permit provisional voters to send relevant info-by email or fax (or perhaps even a phone call in some instances)-without having to show up in person at the local board?  In the case of a missing form of ID on Election Day, for example, could the provisional voter supply a copy of the ID in a PDF attachment to an email?  I wonder now whether Virginia law, as construed by the State Board of Elections, would permit that.  Or must the voter show up with the missing ID if the voter wants that additional info to be considered?

As a practical matter, it would seem to me that being able to send an email, and not having to trudge down to the local board, might make a significant difference in a voter's willingness to take steps to get a ballot validated.  And of course the voter's willingness may first depend on whether the race, like this VA AG election, is close enough that validating the provisional ballot might make a difference.

But I don't have a very solid sense on how much of a difference the particular procedures that a state uses to permit provisional voters to verify their eligibility may have on the ultimate rate at which provisional ballots get counted, whether it close elections or otherwise.  Does anybody have insight on this, or is it another aspect of election administration for which we very much need more data?

(By the way, these questions are very much relevant to the American Law Institute project that Steve Huefner and I are working on, as we see the need to address some of these procedural details concerning the vote-counting process as part of what the ALI project must address.)

Thanks, Ned

[The Ohio State University]
Edward B. Foley
Director, Election Law @ Moritz
Chief Justice Thomas J. Moyer Professor for
the Administration of Justice & Rule of Law
Moritz College of Law
614-292-4288


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