The New York Times
August 6, 2004
A Rule to Avert Balloting Woes
Adds to Them
By Ford Fessenden
CHICAGO - When poll workers could not find Kelly Pierce's name on the
registration rolls during the primary here in March, they told him to
take advantage of a new election rule that allowed him to cast his vote
using a provisional ballot.
The rule is intended to prevent one of the major problems experienced in
Florida during the 2000 presidential election, when scores of voters, especially
minority voters, were turned away at the polls over registration questions that
could not be resolved quickly.
So Mr. Pierce, who had voted regularly since 1989, filled out his paper
ballot. Election administrators then proceeded to throw it out, determining that
poll workers had Mr. Pierce file it in the wrong precinct.
He was hardly alone. Of the 5,914 provisional ballots cast in the
Chicago primary, 5,498 were disqualified, mostly on technical grounds.
Provisional voting, the centerpiece of the Help America Vote Act that
Congress passed in 2002, will be put into effect across the nation in
the coming presidential election in an effort to ensure that more votes
are counted.
But election officials say the experience of Mr. Pierce - and hundreds
like him across the country during primary season - show how failures in
carrying out the measure could end up disenfranchising voters instead.
All but a handful of states have passed legislation creating some form of
provisional balloting. Most states adopted the new rules to make a
deadline to get federal election money this year.
An examination of those rules, however, shows there is no uniformity in how they
are applied. Some states, for example, allow provisional ballots to be counted
even if they are filed in the wrong precinct, but at least 16 states, including
Illinois, throw them out.
And few states have worked out the details of how to train workers to carry out
provisional balloting and other voting changes, setting up the potential for a
protracted ballot-by-ballot fight in any election that is close.
"You talk about testing with real bullets, this is going to be testing
election reform with real ballots," said Doug Chapin, executive director of
a nonpartisan election watchdog group, electionline.org.
In the primary in Chicago, one in 90 ballots was provisionally cast. The
majority of the 93 percent that were thrown out were disqualified because of
technical errors caused by election workers; these included more than 1,200
ballots filed in the wrong precinct. Some 2,400 were discounted because
affidavits were incompletely or incorrectly filled out. Only 416 provisional
votes were ultimately counted.
The extent of the problems surprised Chicago election officials, who said they
had hoped provisional ballots would not be widely used. They blamed inadequate
training of poll workers for the high rate of disqualification.
"Training your poll workers gets harder every election," said Tom
Leach, a spokesman for the Chicago Board of Elections. "We're laying more
and more on the judges, and they're not professionals, they're senior citizens
and housewives."
When poll workers could not find Mr. Pierce on the list in the March primary, he
said they made no effort to check whether his voting precinct had been changed.
"Someone floated the idea that if I was not in the book, I ought to vote
provisionally," Mr. Pierce said. "They kind of went forward in
lockstep with that idea, rather than thinking about it."
He has lived in the same apartment since the 1980's, but the city had recently
redrawn precinct lines, he discovered when he called election officials to see
what had happened to his ballot. His new polling place was just 10 feet from
where he filed his doomed ballot, at another table in the high school gymnasium
that served several voting districts that day.
In the primary, provisional ballot problems were more likely to
disenfranchise minority voters in Chicago than white voters, exactly the problem
in Florida four years ago that provisional voting was intended to address. In
wards that are 80 percent or more minority members, the rate of disqualified
ballots was double that of wards that are 80 percent white.
The major races in the primary in Chicago were not close, but the disqualified
ballots could have been decisive in three close local races, where they far
outnumbered the margin of victory - re-creating another Florida situation. An
incumbent in one race took the matter to court but eventually conceded, citing a
lack of money to pursue the case.
Mr. Leach said the city's Board of Elections would install phone lines to help
workers navigate the provisional ballot system and gain access to registration
rolls for the November election, when the number of voters could double and much
more is at stake. Officials have also recorded a training video on provisional
ballots and will print detailed maps of the precincts to distribute to its poll
workers.
Still, Mr. Leach said he would not encourage provisional balloting.
"We're not going to advertise provisional ballots," Mr. Leach said.
"We don't need thousands of these to go through after Election Day. We
don't have time."
Across the country, election administrators echoed Mr. Leach's fear: being
swamped with waves of provisional ballots, and short deadlines to sort them out.
The practical situation creates tension with the supposedly inclusive purpose of
provisional balloting - the harder you try to extend the franchise, the more
difficult the post-election task.
"You don't want to tell someone their vote didn't count because they were
in the wrong polling place," said Jennifer Collins-Foley, who works on
recommended practices for provisional balloting with the Election Assistance
Commission, the new panel overseeing the voting act. "But you can
understand why election officials have concerns about the use of provisional
ballots."
In Pennsylvania, where the law requires that provisional ballots be counted even
if they are filed in the wrong precinct, the election administrator has a narrow
window for deciding which votes to count.
"We have three days to make sure they're registered, compare legislative
districts they're eligible for, check the paper poll book to make sure they
didn't vote in the division where they're registered, check the signature on the
provisional ballot with the signature on the books," said Bob Lee, the
election administrator in Philadelphia.
In the April primary, Philadelphia had 683 provisional ballots. That city was
far more successful than Chicago in enfranchising those who filed, counting
votes on 70 percent of the ballots. But Mr. Lee fears a general election that
could generate 10 times the workload.
"In all likelihood, you're going to have the situation where all these
provisional ballots have to be counted after Election Day, with no rules about
how they should be counted," said Tracy Warren, executive director of the
Democracy Project.
Colorado enacted one of the first provisional-balloting laws in 2002, and
immediately fell into an ugly dispute in a close Congressional race. Secretary
of State Donetta Davidson issued a series of conflicting directives during the
contentious post-election count. Counties used different standards for counting,
and the race ended up in court.
Election officials expressed additional concerns over other changes instituted
under the Help America Vote Act, including one that requires new voters to
present identification at polling sites.
The requirement was intended to apply to people who had recently registered by
mail, under the logic that they had to prove their identities at some point
before they could vote. States had to adopt it as well to get the federal money,
and were free to expand the identification requirement. Five states did, adding
to the 11 that required identification of all voters before the voting act was
passed in 2002.
Most of the rest require identification only from first-time voters, but the
distinction has been confused or misused by poll workers during primary
elections this year.
In East Chicago, Ind., Helen Hernandez was mistakenly asked to produce
identification in the primary there in May, even though she has lived there
since the 1950's and has voted in just about every election since.
"This is the first time anyone has ever asked me for identification,"
Mrs. Hernandez said she told the worker at her polling place. She said the poll
worker did not offer her a provisional ballot, either, which the law requires
when there is a dispute over voting eligibility.
Mrs. Hernandez was on a half-hour lunch break from her janitor's job and did not
have time to retrieve her identification.
It is not clear how many other voters were turned away in East Chicago, but the
Justice Department said problems were widespread. Monitors who visited 27 of 32
city precincts that day found that poll workers in all of them misunderstood
voter identification and provisional voting requirements.
In South Dakota, site of close House and Senate races in the last two years, the
United States attorney is looking into charges that poll workers on Indian
reservations used the state's identification requirement to discourage voting.
Civil rights organizations celebrated passage of the 2002 voting act, but
putting it into effect this election year has cast it in a different light for
many supporters.
"The Help America Vote Act to many civil rights organizations is not so
much about enfranchising the voter," said Maria Valdez, the regional
counsel for the Mexican American Legal Defense and Education Fund in Chicago,
"but just the opposite, limiting access."
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