Election law experts suggest changes to provisional voting

ANNE GEARAN, Associated Press Writer

Monday, November 15, 2004
 
(11-15) 13:31 PST WASHINGTON (AP)

Provisional ballots, created to solve some of the problems from the 2000 presidential election, didn't work as intended and might be more trouble than they are worth, election law experts said Monday.

Provisional ballots are a back up voting system required nationally for the first time this year. They are cast by voters whose names aren't on the rolls for some reason or whose eligibility is otherwise in doubt, and are counted after the election is over if they are deemed valid.

Democrat John Kerry conceded the election only after it was clear that he could not claim enough of the uncounted provisional ballots in make-or-break Ohio to tip the election. Had Ohio's balloting been closer, the outcome might have hung on those provisionals.

But in the run up to the fall election, there was considerable confusion about which of these ballots were to be counted.

"I'm coming to fear it is a false insurance policy," said Edward B. Foley, director of the election law center at Ohio State University's law school.

Most election law is written by states, which have broad authority to set rules for how to count ballots and other matters. The requirement for provisional ballots, by contrast, was handed down from Congress, which did not write many specifics into the law, leaving states to interpret it for themselves.

Several problems emerged, including ambiguous rules for how to evaluate which provisional ballots will count as valid votes, experts said Monday. Specifically, there was confusion among states over whether voters could get provisional ballots if they were trying to vote in a precinct other than the one in which they were supposed to register.

Foley said Congress should consider repealing the requirement that all states offer provisional ballots, and instead require better voter registration procedures before the election.

He said he was a fan of provisional ballots before this election, and thought they were a necessary fix to a problem identified in the 2000 election, when a million or more qualified voters were turned away from the polls because of administrative or other errors.

It's a good thing the election didn't turn on provisional ballots, because neither federal law nor state election procedures are equipped to handle the many questions the ballots raise, other election law professors and lawyers said at a panel on election rules sponsored by George Washington University's law school.

"I think the big story is how close we came to election meltdown once again," because of numerous flawed election procedures, said Loyola Law School professor Rick Hasen.

Nearly two weeks after the election, it is still unclear how many of Ohio's provisional ballots will count. A final count isn't expected until Dec. 1.