Iowa Provisional Ballot Lawsuit Declined

DAVID PITT

Associated Press  27 October 2004

DES MOINES, Iowa - A judge declined to rule Wednesday in a lawsuit filed by Republican voters challenging a decision that allows Iowans to cast provisional ballots outside of their home precincts. He said the challenge was premature.

Polk County District Court Judge Arthur Gamble said Secretary of State Chet Culver acted within his responsibility as the state's top election official when he ruled such votes could be counted.

The judge said, however, five Republicans who sued Culver must wait until Friday to proceed in the case; Culver issues his final election rules Thursday.

The development is the latest twist involving new voting requirements.

Provisional ballots - required in all states for the first time this year - are used when voters say they are properly registered but their names are not on the registration rolls. The ballots are later counted if elections officials determine the voter is validly registered.

Culver said his rule on counting such ballots was made based on advice from Iowa Attorney General Tom Miller; a Justice Department attorney, however, has told Miller he was wrong in his interpretation.

Adding to the confusion are recent decisions by the 6th U.S. Circuit Court of Appeals, which has ruled in Michigan and Ohio cases that provisional ballots cast outside the precinct where a voter resides should not be counted.

Des Moines attorney Richard Sapp, representing the five Republican Iowa voters, vowed to refile the case if Culver failed to reverse his earlier instructions.

"Unless this court does something to stop it, the secretary of state ... is about to conduct the Nov. 2 general election in a manner directly contrary to Iowa's election laws," Sapp said.