Provisional Ballots
Although the question of how provisional ballots should be counted was a hot topic and the subject of many lawsuits leading up to the 2004 presidential election, many states have been using provisional ballots for years with little controversy.  Today, as one of the provisions of the Help America Vote Act (HAVA), all states are required to have provisional ballots available for voters to use.

A provisional ballot is a ballot a voter casts on Election Day when that voter's name does not appear on the voter rolls. These ballots are for all intents and purposes the same as regular ballots, except they are not automatically counted on Election Day. Instead, they are kept separate from the other ballots until election officials can determine that the voter who cast the provisional ballot is actually eligible to vote.

In recent years, legal battles have erupted about how provisional ballots should be counted. While some states  count provisional ballots cast in the wrong voting precinct, others demand that all votes be cast in the correct precinct to count. In some instances, counties in the same state set different requirements for provisional ballots.  The universal usage of provisional ballots will enable more voters to cast a ballot, but it is essential that policies concerning the counting of ballots are uniform.
A Clean Count?

By Weston Kosova
Published October 18th 2004 in Newsweek

It's just about impossible to stop Claude Hawkins from voting. The 24-year-old supply store clerk from Kansas City, Mo., was so enthusiastic about this year's election that he registered to vote three times, just to make sure his application wasn't lost. But when he showed up to vote in the state's Democratic primary last August, the poll worker told him he wasn't on the list. She offered to check with the board of elections. Instead, he decided to leave and go to the local union hall, where he'd voted in 2000. They couldn't find his name, either, even though the voter-registration card he presented listed his ward and precinct. He was given a list of all the local polling places. Hawkins went to the one closest to his house. Nope, wrong again. Finally, he trudged over to the last place he knew of in the area, a Methodist church. Sorry. When he explained the situation, a poll worker took pity on him and gave him a provisional ballot. Fill it out, he was told, and it would be counted later.

    He went home, a bit bewildered, but relieved and pleased with his determination. The feeling didn't last long. A few days after the election, he got a call from a Democratic Party lawyer who told him his ballot had been thrown out because he'd voted in the wrong place. The final insult soon arrived in the mail: it was a postcard, days late, telling him the name of his official polling place. "I've seen a lot of people walk away from the polls," he says. The city eventually agreed to count his vote. Hawkins and other voters sued to get the rules straightened out before Nov. 2. He's prepared to do battle again if his vote gets bounced on Election Day. But he says he wonders how many others in his situation just gave up and went home. Halfway across the country, Jonathan Soffer is also getting ready for Election Day skirmishes. A 47-year-old history professor at Brooklyn Polytechnic University, he hadn't used his law degree in years. But when Soffer recently received an e-mail asking for lawyers to keep an eye on the Florida races for the liberal Election Protection coalition, he signed up immediately. He'll take down complaints about voter fraud or intimidation, and stand outside polling places, looking for signs of misconduct - though he has no idea what that might be. His one hope: that the vote count goes quickly, and ends up in John Kerry's favor. "Wait," he says, "we're supposed to be nonpartisan."

    In Minnesota, officials at the state's Division of Homeland Security are worried about another kind of election threat. The agency recently issued a flier telling poll workers how to spot a "homicide bomber" in the line. Among the things to look for: "Unusual shapes or bulges protruding from a person's mid-section" and "May be seen praying fervently to himself/herself, giving the appearance of whispering to someone."

    Brace yourself: it's happening again. The election is still weeks away, the votes aren't even close to being counted and already lawsuits are in the courts, tales of trashed ballots are in the news and allegations about dirty tricks are in the air. Awful as it is to contemplate, we may be headed for a repeat of the whole sordid 2000 election mess - the millions of uncounted votes, the shameless legal maneuvering, the prospect of winners' being decided by judges. And this time, with added worries - vague, but still there - about possible terror strikes around Election Day. "These are concerns," says DeForest Soaries Jr. Soaries knows what he's talking about. As chairman of the U.S. Election Assistance Commission, a new federal agency created to help cool tempers and smooth out problems, he's spent months flying around the country trying to get a feel for the mood on the ground.

    If you're looking for reassurance that 2000 was just a freak anomaly and this year will be different, Soaries isn't your man. He recently returned from Florida, where he found that hundreds of polling places had been destroyed by the hurricanes, a problem that could lead to mass confusion next month. "Now," he says, Florida (and every other state) has to "prepare for a hurricane called Election Day."

    This might be a good place to inject a note of optimism. It's no secret that American elections have never been nearly as free and fair as our childhood civics textbooks made them out to be. In 1888, Grover Cleveland and Benjamin Harrison both hired "floaters" to vote again and again, and secretly destroyed each other's ballots. Lyndon Johnson was elected to the Senate in 1948 because his supporters stuffed ballot boxes in Alice, Texas. Dead men and rigged voting machines helped John F. Kennedy beat Richard Nixon in 1960. President Dwight D. Eisenhower urged Nixon to demand a recount, but Nixon wouldn't. He worried that a challenge would cause a "constitutional crisis" great enough to "tear the country apart." (Imagine - longing for the decency of Richard Nixon.)

    The 2000 elections changed that for good. "I'm inspired," Soaries says. "Never has interest in the election process been higher." To put it mildly. This time around, nothing is going to be overlooked. No slight, no bending of the rules, real or imagined, will go unnoticed, unprotested or unlitigated. Raw nerves and fears of another hairsplitting outcome have a lot to do with it. But there's something else. Even if the presidential race is won by a convincing margin, there is now a vast new industry of lawyers, consultants and interest groups with a stake in fighting it out, whether or not there's something to fight about. "American elections have always operated on the assumption that someone would concede defeat," says Ohio's Secretary of State J. Kenneth Blackwell. Not anymore.

    The tech factor: Mercifully, we will largely be spared the chad spectacle this time around. After 2000, most states couldn't ice their ancient punch-card machines fast enough. About 30 million people in 19 states, including three out of four voters in must-win Ohio, will still use the punch machines. But this year about 30 percent of voters will face newer, electronic systems. Yet the sleek touchscreens are far from glitch-free. Last January, Ellyn Bogdanoff pulled out a narrow victory in a runoff race for a Florida state Senate seat: 12 votes. State law required an automatic recount. There was just one problem. The touchscreen machines used in the election left no paper trail - all the votes were tallied digitally - making an examination of the actual votes impossible. Doing a recount was a meaningless exercise, akin to adding identical numbers into a calculator twice; you'd get the same answer each time. Election officials did notice something strange. Out of nearly 11,000 votes cast, there were 137 left blank, far more than the margin of victory. The losing candidate, Oliver Parker, wanted to know why. He and Bogdanoff were the only ones on the ballot. Why would anyone who cared enough to go all the way to a polling place for a little-known runoff walk away without casting a vote? Had the machines malfunctioned and failed to record the vote? Without any way to answer the question, Bogdanoff was certified the winner.

    That was a state Senate seat. Picture the chaos next month if Bush vs. Kerry comes down to a few hundred votes in Florida, or parts of Ohio - both states that use touchscreen machines without paper backups - and there's no way to put the results under the microscope. No surprise that lawsuits are stacking up in Florida. Ohio has already decided to outfit all machines with paper - by 2006. "We jumped out of the soup and into the fire," says David Jefferson, a tech adviser to California, which has had its own share of problems with e-machines. "We were, in a way, too quick to rush to computerize." Jefferson, who jokes he's such a tech geek he'd "buy an Internet toaster" if there were such a thing, says he'd take punch cards, with all their problems, over the uncheckable electronic machines. Nevada is the only state that currently has paper backups on all its machines. Voters can read the paper ballot through a glass window. When they hit the screen to approve it, the paper drops into a sealed box.

    The machines have their virtues. They are easy to read, even for people with poor eyesight, and they are very simple to use. Just touch the big buttons on the screen. If you mess up or change your mind, touch it again and it will switch the vote. Another plus: it's impossible to "overvote" and difficult to "undervote" - two scourges of 2000. The machine won't let you choose both candidates in a race, and it reminds you if you overlook something on the ballot. There are epic flame wars between Internet geeks over the vulnerability of the machines to hackers, and baseless conspiracy theories that Diebold, one of the largest maker of screen voting machines, is secretly rigging the software to favor Bush. In 2003, Wally O'Dell, the company's CEO, wrote a fund-raising letter vowing to deliver votes for the president. But no diabolical plot has been uncovered, and no one has hacked touchscreen machines, something that isn't considered much of a risk anyway. "This would be very hard," says Jeremiah Akin, a programmer who works with election-monitoring groups. Even so, he says, "there are people who are very good at doing hard things."

    The first-timers: A much bigger problem: how to handle the torrent of people registering to vote for the first time this year. So far, at least a million new voters have signed up, and possibly many more. New Mexico has added more than 100,000 new applications; Clark County, Nev., alone is up 190,000. Washington state is swamped with 300,000 applications. Officials are frantically trying to get the new names on the mailing lists that tell them where to vote, and on the rolls themselves, so they won't be turned away when they get there.

    That happens more than you might think. In 2000, so many properly registered voters were mistakenly turned away in Florida that the federal government now requires states to give voters provisional ballots if their names aren't on the list. The ballots are supposed to be sorted out and counted in the hours and days after the election. Trouble is, the law is worded so vaguely that no one can say for sure what it means. In 22 states, voters are welcome to use a provisional ballot if they accidentally show up at the wrong polling place. In other states, including Missouri, those ballots can be thrown away as invalid. "It's not a convenience," says Terry Jarret, who works for the state. "It's really intended for when voters are left off the books."

    In some places, where officials are lax, provisional ballots count even if the voter made a mistake or forgot to complete the form. In other precincts, they are thrown away for slight oversights - such as forgetting to check a box. In Chicago, 5,914 voters cast provisional ballots in the March primary. But only 416, just 7 percent, were accepted as valid. In Florida, two out of five provisional ballots were tossed in the August primary, according to the St. Petersburg Times. Nearly every big battleground state - Missouri, Ohio, Michigan, Florida - is being hit with a crush of Democratic Party lawsuits charging that the application of the law is arbitrary and unfair.

    The confusion has provoked open feuds between public officials. In Ohio, some local election officers are vowing to defy Secretary of State Blackwell's order to deny a ballot to anyone who shows up at the wrong polling place. The law "is very clear in saying we shouldn't turn voters away," says Jane Platten, who runs elections in Cuyahoga County, one of the state's largest. "We will make every effort to find where that person should be."

    Some officials say they sometimes use the ballots just to keep the line moving. "If someone is extremely irate and insisting they are a registered voter, then we tell our poll workers just to go ahead and give them a provisional ballot," says Deborah Clark, a supervisor in Florida's Pinellas County. "We'll deal with it after the election."

    And that's when the real fun begins. Election officials have to research each provisional ballot to figure out if it's valid. That can take as long as an hour if the voter's name doesn't quickly turn up - an excruciating amount of time for harried election officials scrambling to meet tight deadlines. In many states, ballots must be counted and certified in just a few days. "That's when it's ludicrous," says Conny McCormack, a Los Angeles election official. "It becomes a competition over what's more important, accuracy or speed." In Rhode Island, 100 provisional ballots were accidentally mixed in and counted with the regular ballots during this year's primaries, forcing recounts in two races.

    Around the country, election workers grimly refer to provisional ballots as the "hanging chad" of 2004. They remember all too well that many registered black voters in Florida were turned away from polling places, leading to charges of deliberate discrimination. Election officials know that those problems could go nationwide this year if provisional ballots are thrown out because of arbitrary rules and haphazard enforcement. They are all mindful that any one of them could become the next election-year villain - the Katherine Harris of 2004. It's a prospect that bothers some more than others. The combative Blackwell's political enemies compare him to Harris all the time. "You might as well put a wig on him," says one. He takes it as a compliment. "Last time I checked, Katherine Harris wasn't in a soup line," he says. "She's in Congress."

    THE EARLY VOTES: Up for a little more potential mayhem? Add the millions of absentee ballots, early ballots, military ballots and overseas ballots pouring in from every corner of the planet. To lock in their votes - and to skirt the perils of provisional ballots - both sides are pushing hard to get as many of their supporters as possible to vote early. It makes sense. As many as 25 percent of would-be voters don't make it to the polls because of some unexpected event: a sick child, a business trip, a traffic jam. "An unmarried woman is juggling so much," says Stephanie Grutman of Planned Parenthood's political arm. "In many cases, she has little children, she's paying bills. It's hard to get to the polls from 7 to 7 on one day." The group's goal is to get 50,000 pro-choice women to vote early in Florida.

    Some states make it especially easy. In Florida, early voting sites will open in every county, usually at city hall or the public library, beginning two weeks before the election. In Colorado, voters can cast their ballots at the local supermarket. In California, you can vote - where else? - at shopping malls.

    In other states, the parties are urging supporters to cast absentee ballots. Democrats in Iowa have identified at least 100,000 pro-Kerry voters they hope to get out early. They are training "certified couriers" who will come right to your house to pick up a ballot. In Florida, "condo commandos" will swarm the Gold Coast to encourage seniors to cast early ballots. The GOP is even more ambitious. They hope to persuade more than 25 percent of their supporters to vote absentee this year. The party sent a letter to every Republican household in Florida - some 2.5 million - offering sign-ups for absentee ballots.

    Every one of these ballots will have to be checked, counted and certified, usually by hand. So do all the ballots from the 500,000 soldiers stationed overseas, not to mention millions of votes from American civilians living abroad. Election officials in some states are beyond overwhelmed at the prospect of making the numbers add up. Mike Mauro, the auditor for Polk County, Iowa, considers himself an old pro in the election game. But he says he's never seen anything like this. He's already working 12-hour shifts, six days a week, just to keep up. Mauro is expecting so many absentee ballots that there won't be room to open them all in the office on election night, as they've done every other year. This time, he's reserved a room in the local convention center, where as many as 150 volunteers will help him wade through the pile. "And this is only for seven electoral votes," he says wryly.

    Here come the lawyers: No wonder the lawyers are circling. On Election Day, both parties will send thousands of legal observers to battleground states, ready to start swinging. In Florida alone, Democrats and Republicans may dispatch as many as 2,000 lawyers each. If a polling place is held open past closing time, the attorneys will file instant motions with the courts to get them closed down. That is, unless their guy is losing. Then they'll argue the need to let everyone in the door. Lawyers around the country have already drawn up fill-in-the-box pleadings to put before judges on every imaginable issue. And charges of dirty tricks are flying. Already, there have been allegations of break-ins at Republican campaign headquarters in three different states. And the legal teams will be alert to signs of voter intimidation, a standby in American elections for years. In Iowa, where early voting is already underway, thousands of Republicans last week received taped phone calls warning them that handing over absentee ballots to anyone but the Iowa GOP could be a security risk. Other voters near Des Moines reported phone calls instructing them to "rip up" their absentee ballots. And when that doesn't work, the ballots are sometimes just stolen from mailboxes. "It's not unusual for a voter to go to the polls and find out they're ineligible because they've already voted by absentee ballot," says Larry Sabato of the University of Virginia, author of "Dirty Little Secrets: The Persistence of Corruption in American Politics." "It's been happening for years."

    In the most hotly contested precincts, expect to see lawyers from both parties at every polling place. On top of that, the Democrats will have five "SWAT" teams of famous attorneys on standby, along with a fleet of private planes, ready to jet them off to electoral trouble spots on a moment's notice. A recent ruling allowed the presidential candidates to use campaign compliance funds for legal challenges. So both sides are now urgently appealing to supporters for money to pay for the inevitable postelection feud. (One conspiracy theory that could open Republican wallets: that the Democrats will try to disregard the Electoral College if Kerry wins the popular vote but loses the state tally.)

    Stack it all up, and we might, just might, not have an official winner by the time the networks sign off for the night. "Election Day is no longer the light at the end of the tunnel," says Doug Chapin of, a nonpartisan reform group. "It's the light of an oncoming train." But that doesn't trouble Soaries. "I don't feel pressure to finish so Katie Couric will be able to declare the winner the next morning," he says. "There are times when it takes longer, and that's what courts are for. It proves our system works." From the White House to the statehouse, we might still be proving it days after the votes are in.

    This story was written by Weston Kosova, with reporting by Debra Rosenberg, Rebecca Sinderbrand, Holly Bailey, Arian Campo-Flores, Andrew Murr, Brad Stone, Mark Hosenball, Sarah Childress, T. Trent Gegax, Daren Briscoe, Cliff Sloan, Jennifer Ordonez And Eve Conant