[EL] Provisional Ballots and Purcell in the Texas ID case?

[Robbin Stewart]

Ned, the voters are supposed to given provisional ballots.
What actually happens in practice is that provisional ballots are rarely
used,
and the voter is often just turned away, with no records kept that they had
gone and tried to vote but been denied.
This has happened to me personally, stewart v marion county, and the judge
didn't care.
Mo Rocca's electoral dysfunction documentary captures this process on video,
http://www.hulu.com/watch/449869 at 37:45. (I'm not sure how to skip the
ads.)

In the 2014 primary in Marion County IN, there were 7 ID-related
provisional ballots, but we have no records of how many were turned away
without being given any ballot.
While I oppose voter ID generally, if it were going to be upheld and put
into practice, this problem would need to be addressed.

On Thu, Oct 16, 2014 at 10:37 AM, Foley, Edward <foley.33 at osu.edu> wrote:

>  I’m curious whether anyone on this list can illuminate an aspect of the
> emergency motions now pending before SCOTUS in the Texas voter ID case:
>
>  I would have thought that one factor relevant to the Purcell-based
> balancing of the equities (not necessarily dispositive, but nonetheless a
> relevant factor) would be the potential role that provisional ballots could
> play to prevent disenfranchisement of voters without a form of ID required
> by the new stricter ID law, now ruled intentionally discriminatory by the
> district court.  On the assumption that the law is indeed intentional
> racial discrimination, clearly it would have been best to permanently
> enjoin the law well in advance of this November’s election, so no
> Purcell-based considerations would be relevant, and all potentially
> affected voters could cast a regular rather than a provisional ballot even
> if they did not have the form of ID required by the new stricter law.  But
> given that the district court’s calendaring of the trial in the case did
> not enable that “best case scenario” outcome, it would seem that the
> relevant Purcell-based inquiry would be, what now for this current
> election?  And here’s where I was wondering what role provisional ballots
> might play.  I would have thought that (at least for voters casting ballots
> on Election Day itself) even if the Fifth Circuit stay is in effect, a
> voter without the required ID would be entitled under HAVA to cast a
> provisional ballot, and it would be a serious violation of federal law not
> to provide this voter with a provisional ballot.  Then, given the district
> court’s ruling that the new Texas ID law violates the Voting Rights Act and
> is unconstitutional, it would seem to me that under the Supremacy Clause,
> that the provisional ballot is entitled to be counted, and it would violate
> federal law to disqualify it for the sole reason that the voter did not
> comply with the new ID law now adjudicated to be contrary to federal law.
> If so, then the voter lacking the required ID would be protected from
> outright disenfranchisement.  (Again, it would have been preferable to have
> an earlier injunction that would have given this voter a regular ballot in
> the first place, but given the unavailability of that option, is it better
> under Purcell to let the invalid voter ID law to be enforced on Election
> Day with the safety net of provisional ballots available, or is it better
> to let the district court’s October injunction stand?)
>
>  But then I read this sentence in the SG’s emergency motion to vacate the
> Fifth Circuit stay (page 38-39):  “the voters most affected by the law
> inevitably will be turned away from their local polling places when they
> attempt to vote in coming weeks, just as several individual plaintiffs were
> in this case when they tried to vote in recent elections.”
>
>  This sentence implies that voters will not receive a provisional ballot,
> but will be “turned away” instead.   If so, in my mind that would affect
> the balancing of the equities considerably, but I was confused about why
> that would be so given HAVA.  One possible thought, but this is a
> conjecture, is that the SG’s statement is intended to apply only to early
> voting, not Election Day voting.  But given a factual uncertainty over the
> role that provisional ballots potentially could play, I thought it a point
> worthy of clarification.
>
>  Thanks, Ned
>
>
>
> [image: The Ohio State University]
> *Edward B. Foley *
> Director, *Election Law @ Moritz *
> Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional
> Law
>
> Moritz College of Law
>
>
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