State, opponents argue over provisional ballot plan in court

DAVID EGGERT

Associated Press  13 October 2004

BAY CITY, Mich. - Michigan Democrats asked a federal judge Wednesday to reverse the state's decision to not count backup, or provisional, ballots cast in the wrong polling precincts on Nov. 2.

They argued that citizens who appear in the right city, township or village should have their votes for federal offices counted regardless of whether they show up in the right polling precinct.

"We want to ensure that every voter who is eligible to vote has the right to vote," said Mark Brewer, Michigan Democratic party chairman.

Michigan Democrats, the NAACP and voter-rights groups say the state's plan would disenfranchise thousands of voters who cast ballots in the wrong polling place or those who must provide a photo ID or other proof of residency on election day.

U.S. District Judge David Lawson considered the issue - consolidated from two separate lawsuits - on Wednesday.

Provisional ballots are used when voters say they are properly registered but their names do not appear on the rolls.

The lawsuits name Secretary of State Terri Lynn Land, a Republican, and state Elections Director Chris Thomas.

The state says the Help America Vote Act, which Congress passed in 2002, says provisional ballots should be counted in accordance with state law. The state says neither that law nor Michigan law gives citizens the right to vote in a precinct where they do not live.

Land spokeswoman Kelly Chesney said both Democratic Gov. Jennifer Granholm and the U.S. Justice Department approved the state's provisional ballot plan.

"We have a right to instill a process that ensures a representative government," she said.

The Michigan Democratic Party and Bay County Democratic Party want Thomas to rescind instructions to the state's 2,438 county and local elections officials. A Sept. 24 memorandum instructs inspectors to tell voters that their ballots will not count if they vote in the wrong polling place.

Democrats say one of the Help America Vote Act's central purposes is to eliminate "arbitrary requirements" that a ballot be cast aside if a voter mistakenly appears at the wrong precinct.

But Thomas said in an affidavit that the act does not require the state to count provisional ballots of voters who are in the wrong polling spot and refuse to go to the correct one. He said 19 cities and townships are split by two congressional districts. He also said that Detroit is split into multiple districts for county, state and federal races.

"There is a high likelihood that voters casting a ballot in the wrong precinct will be voting for offices that do not represent the voter," he said.

The state also faces a lawsuit filed by the National Association for the Advancement of Colored People, Project Vote and the Association of Community Organizations for Reform Now, or ACORN.

Those groups, concerned about ID requirements for first-time voters, say provisional ballots are meant to be a fail-safe way for citizens to vote if they go to the wrong precinct.

State officials "took HAVA and interpreted it as narrowly as they possibly could," said Simone Lightfoot, Michigan director for the NAACP National Voter Fund.

GOP spokesman Chris Paolino said the state's plan is reasonable.

"We want everybody registered to be able to vote," he said. "But we want to make sure everybody votes once and does not abuse the system to unfairly swing an election."