Court decisions on provisional ballots could affect election results

BY ANDREW ZAJAC

Chicago Tribune    25 October 2004

WASHINGTON - (KRT) - Weekend decisions by a federal appeals court have helped clarify a sticky procedural question in dispute in five key states, including Ohio and Florida: Will votes count if they're cast in the wrong polling places?

The answer: Almost certainly not - although the framing of some of the rulings may have planted the seeds for further litigation after the election.

A pair of decisions by the 6th Circuit Court of Appeals in Cincinnati shot down efforts by Ohio and Michigan Democrats to force Republican secretaries of state in both states to count ballots cast outside voters' home precincts.

Briefs from the Bush administration, which argued that Congress intended for state election authorities to set the precise conditions under which so-called provisional votes are counted, supported the GOP officials' cases.

The court invited further arguments in the Michigan case, but it's not clear that any change of mind would occur before Election Day.

The appeals court rulings are similar to earlier decisions by federal courts in legal challenges brought in Missouri and Florida and in a state court in Colorado to guidelines issued by Republican election officials.

States involved in the suits control 84 electoral votes, nearly one-third of the 270 needed to win the election.

Provisional ballots are intended as fail-safe devices to be handed out in case people show up and poll workers cannot find their names on a list of eligible voters in that precinct.

Provisional votes are counted later, if registration can be confirmed. But under the court rulings, they'll be thrown out if voters who are otherwise properly registered are shown to live outside the precincts where the ballots were cast.

Democrats in various states had argued that votes should count if cast in voters' home counties, townships, cities or villages.

The court decisions will almost certainly cut down on the number of votes cast, since voters showing up at the wrong place won't always have time to get to the correct polling station.

In the short run, the decisions would seem to favor Republicans since historically, a smaller turnout has generally favored the GOP.

Also, some observers believe that Democrats have more to lose with the precinct-based voting endorsed by the courts since the bulk of voters signed up in recent massive registration drives are thought to be Democrats.

The sheer number of new registration applications has taxed the processing ability of some local election boards, increasing the possibility of error or oversight in notifying new voters of their polling places, noted Dan Seligson, editor of electionline.org.

"I would say that the tendency toward (use of) provisional ballots will skew toward new registrations, and if projections are correct, those new registrants are Democrats," Seligson said.

But a spokeswoman for Michigan Secretary of State Terri Land said the court rulings will safeguard the election against fraud from people trying to vote at multiple locations.

"We believe that our voting process will be more secure," said Kelly Chesney.

She dismissed arguments from Democrats that precinct-only voting will disproportionately hurt the poor.

"Help is a phone call away," she said, noting that voters can call a local elections office to find out where to vote.

It's not clear how many provisional votes will go uncounted or how those votes will affect the outcome of the election. There were just over 100,000 provisional votes cast in Ohio in 2000, which has used provisional balloting for about 15 years. But Colorado, Michigan, Missouri and Florida didn't use it in the last presidential race.

Florida became a flashpoint of outrage in 2000 because of allegations that thousands of voters, mainly minorities, were improperly denied ballots because their names didn't appear on voter rolls or were improperly removed from them.

As a result, in 2002 Congress passed the Help America Vote Act, which mandated provisional voting in all states.

But crucial details were left to the states and while elections officials have prevailed on the main points in the recent round of challenges, courts have left the door open for plenty of legal maneuvering well past Election Day.

Still to be decided in Florida is a federal court challenge to the secretary of state's decision not to count provisional votes from people whose voter registration forms were incompletely filled out.

Rulings already made in Ohio, Missouri and Florida make clear that individual voters have rights to sue under the new law - something that state officials and the Bush administration had argued against.

Courts in Ohio and Florida also said the voters have a right to cast provisional ballots even if they are told that they won't be counted, thus creating a record of election authorities' decisions.

"That preserves the ability after the election to sort out the whether a ballot is entitled to be counted," said Donald McTigue, an attorney involved in one of two suits in Ohio challenging Secretary of State Kenneth Blackwell's decision to limit the counting of provisional ballots to a voter's precinct.

"Heck," said McTigue, "we know from Bush vs. Gore that the absolute deadline is when the states have to certify their Electoral College members - sometime in mid-December."

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