Thursday, October 07, 2004


Solution to provisional ballot dilemma probably not in HAVA

Not being an attorney, I am on somewhat shaky grounds interpreting HAVA. Many pro-Kerry forces (including myself) have been hoping that the federal court would rule that because of HAVA, Sect. of State Ken Blackwell cannot enforce his directive to block the use of provisional ballots when a voter shows up at the wrong precinct.

The OSU Moritz School of Law's Election Law website has posted an extend analysis of how HAVA may affect the ruling and their conclusion isn't promising.

In brief, writer Edward Foley acknowledges that "both sides have plausible arguments." A point of conflict is over what the term "jurisdiction" means in HAVA. Does it refer to something larger like a county, or something on a much smaller scale such as a precinct.

However Foley says a look at the legislative history of the bill sheds some light. The House version of the bill would have explicitly permitted provisional ballots to be offered under certain circumstances to voters at the wrong precinct. While the House was concerned about creating more opportunities for fraud, it was concerned about the following situation:

“Voters may appear at the wrong precinct because they did not receive, or received but did not heed, a notice that their polling place had moved.”

Unfortunately, when the Senate considered the bill, the Republicans led an effort to delete this provision. In conference committee, the Senate version - at least in this area - seems to have prevailed.

Not all legislators apparently agree on this point. One in particular is/was Ohio Congresswoman Stephanie Tubbs Jones. According to Foley, Tubbs Jones:

". . . referred to the experience of voters in the state’s 11th congressional district during the 2000 election. 'Because of a 1996 State law cutting Cleveland precincts by a quarter, their polling places had been changed.' Although the local board of elections purportedly notified residents of this change, many voters said they never received the notice. They showed up at their usual polling places expecting to cast a ballot without difficulty. Instead, they were turned away without even the opportunity to cast a provisional ballot. Rep. Jones argued that these voters “should have been given provisional ballots, to be certified later,” and she urged HAVA’s enactment on the premise that it would guarantee the availability of a provisional ballot in this situation."

Nevertheless, Foley indicates that the legislative history probably favors Blackwell.

Foley warns, however, of the dilemma a voter could face if the voter "gambles wrong" about what his or her precinct is:

"Of course, it is conceivable that a voter could get bounced around from one polling place to another, where at each one the pollworkers think the voter is in the wrong place. In this circumstance, the voter has no idea what to do in order to protect against the risk that his or her vote ultimately will be discarded under state law. If the voter guesses incorrectly, the voter loses. One might think that going to the polls should not be a gamble about whether one’s vote will be counted. But it seems as if, under the system of provisional voting adopted as a result of the bargain struck as a result of Senator Bond’s leverage over the process, a voter has no fail-safe way to cast a provisional ballot if there is genuine uncertainty among all concerned about where a particular voter should vote."


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