Pa. voters turned away from polls might have tough time appealing
By MICHAEL RUBINKAM, Associated Press, for The Mercury News, 28 October 2004.

PHILADELPHIA - For decades, would-be Pennsylvania voters who were turned away at the polls could ask a Common Pleas judge for permission to cast a ballot. If the voter appeared to be qualified, the judge would more often than not agree to the request.

But changes in state election law did away with the Election Day appeals process, a development one top elections official on Thursday called a "disgrace" that could lead to voters being disenfranchised.

The problem is that independent political groups registered thousands of new voters in Pennsylvania this year, but failed to turn in an unknown number of registration forms to county election boards.

Those voters now have no recourse to attempt to prove that they made a good-faith effort to register and thus are eligible to vote. No one knows how many voters are affected, although experts said the number is likely small.

"We know that a lot of the ... organizations that have been registering voters have done so in a sloppy way. There obviously are some bad apples," said Nathaniel Persily, a University of Pennsylvania Law School professor and elections expert.

Bob Lee, head of voter registration in Philadelphia, said voters who were "disenfranchised through no fault of their own" could often persuade a judge to order election officials to allow them to vote.

Now, when a voter seeks a court order to be allowed to vote, a judge can only tell the applicant to get a provisional, or backup, ballot. The ballot will only be counted if the voter is determined by election officials to have properly registered.

"Everyone else can appeal every other government action, except on Election Day for voters who are denied the right to vote and believe they have done everything they needed to do to register to vote," Lee said. "I think it's a disgrace that any governmental program would not have a right of appeal."

Larry Frankel of the American Civil Liberties Union of Pennsylvania said Thursday that a voter-registration group in the Pittsburgh area reported that 10 percent of the forms it turned in to elections officials were never added to the voter rolls - meaning those voters could be out of luck. Frankel declined to name the group.

Frankel suggested that voters who are turned away from the polls should still go to a judge in hopes of getting a court order allowing them to vote. But given the change in election law, he conceded the strategy might not work. "I don't know what the end result will be," he said.

After the Florida vote-count fiasco threw the 2000 presidential election to the Supreme Court, Congress ordered states to provide provisional ballots to voters whose names do not appear on the rolls. Ballots were also to be given to first-time voters who failed to bring identification.

Under a state law designed to bring Pennsylvania in compliance with the federal Help America Vote Act of 2002, provisional ballots are to be counted only if the voter is registered in the jurisdiction where he or she voted.

Provisional ballots were first used in Pennsylvania in the April primary. Of 2,480 ballots that were cast, 30 percent were thrown out.

With a flood of late-arriving voter registration forms taxing counties' ability to process them all in time for the election, the number of provisional ballots cast Nov. 2 could significantly increase.

Though it comes too late for this election, some experts recommend that voters avoid registering through third parties.

"If you entrust your registration to a third party, you do so at your own peril," said Fred Voigt, director of the Committee of Seventy, a watchdog group.