Know Your Rights
What Is a Provisional Ballot?
By Lyle Therese A. Hilotin-Lee, J.D. | Legally reviewed by Melissa Bender, Esq. | Last reviewed January 29, 2024
A voter casts a “provisional ballot” when they cannot prove their eligibility to vote while at the polling place on election day. Provisional ballots ensure that voters are not excluded from the voting process because of an administrative error or easily corrected oversight. The idea behind provisional ballots is to provide a mechanism for voters whose eligibility to vote is uncertain.
How Do Provisional Ballots Work?
A provisional ballot is often submitted in a sealed envelope. Election officials will account for the regular ballots first. Then, after the regular ballots, election officials will process provisional ballots. Once the ballot gets cast, it’s kept separate from other ballots and investigated by local election officials.
Election officials must confirm a voter’s identity and eligibility to vote. They might also ask the voter to verify their identity or provide more information, such as a utility bill, for verification.
If election officials can confirm the voter’s eligibility or identity by examining the voter rolls, the officials will count all or part of the voter’s ballot. But, if election officials cannot confirm the voter’s eligibility or identity, they do not count the ballot.
In some states, election officials may ask voters to return to an election office after Election Day to provide the proper ID. Included among the commonly accepted forms of identification when voting are as follows:
- Driver’s license
- State ID
- Passport
- Government-issued document with your name and address
- Current utility bill
- Government check
- Bank statement
- Paycheck
In some states, voters must provide the needed ID a few days after an election. Those states include Alabama, Arizona, Georgia, Ohio, Tennessee, Virginia, and Wisconsin.
When Might You Need a Provisional Ballot?
There are several reasons you need a provisional ballot:
- Your name isn’t on the voter rolls
- You might not have the right identification
- You might have tried to vote in the wrong precinct
Federal law requires that states provide for a provisional balloting process. Some states have longstanding same-day voter registration that makes provisional ballots unnecessary. In the following states, you vote with a regular ballot:
- Idaho
- Minnesota
- New Hampshire
- Wisconsin
- Wyoming
When Did Provisional Ballots Begin?
Most political parties have long stationed observers at polling places to make sure that everyone voting is eligible to do so. Before provisional ballots, some states allowed voters to cast “challenge ballots” if the polling places deemed them ineligible. The local canvassing boards examined those ballots and decided whether the votes should count.
The Help America Vote Act (HAVA) of 2002 brought consistency to the use of challenged ballots. HAVA requires all states and localities to upgrade parts of their election procedures in their election districts. This includes their voting systems, registration processes, and how they train their poll workers. As with provisional balloting, each state has detailed guidelines to implement this rule. But HAVA makes the many different state rules about challenged ballots more consistent.
How Do You Request a Provisional Ballot?
All it should take is asking for one at the polling place. At the polling place, the law requires the election judge to give you a registration application with a receipt. Again, ask for a receipt if one isn’t offered. The receipt gives the necessary information to follow up and ensure they counted your vote. Many states also have websites or phone numbers that can help you confirm that they counted your vote.
Section 302 of HAVA establishes the right of a voter to submit a provisional ballot. This provision is relevant in cases where the voter’s name is absent from the list of registered voters or if an election official challenges the voter’s eligibility. When this happens, voters can still vote even if there are questions about their eligibility. In these cases, election officials mark the voter’s ballot as provisional until they can confirm their eligibility to vote. This process ensures every qualified voter’s right to take part in the election process.
According to regulations published by the Federal Judicial Center, election officials should follow a five-step procedure under HAVA’s provisional voting rules:
- Notification. Election officials must notify people whose names do not appear on the voter registration list that they can cast a provisional ballot.
- Affirmation. The voter must show their registration in the jurisdiction and their eligibility to vote in the election.
- Transmittal. Poll workers must send the provisional ballot or the data provided in the affirmation to the proper election official.
- Counting. If an election official determines you are eligible to vote, they should count your provisional ballot.
- Confirmation. Election officials must have a system that lets provisional voters know whether their ballots got counted — and, if not, why.
Are Provisional Ballots Counted?
That depends on the state or locality and the circumstances of each provisional ballot. In some states, regulations specify the people present while counting provisional ballots. In contrast, other states mandate that election officials place provisional ballots in the ballot box as soon as possible. Often, officials count the majority of provisional ballots. Provisional ballot rejection rates vary significantly from state to state. Some states count almost all provisional ballots, while others reject more than half.
What Are Provisional Ballot Laws by the State?
States can define the rules of their provisional balloting process. This means the process can vary significantly from one state to another. Those states count provisional ballots according to their procedures. But what’s needed to make that happen can range from simple to arduous.
Below are examples of what some states need to have a provisional ballot counted:
- Alaska. A person must be a registered voter within the last four calendar years and sign a statement confirming this. They must have their statement verified by election officials.
- Connecticut. Election officials can reject a provisional ballot if it’s cast in a precinct where the voter does not live.
- Florida. Election officials only accept provisional ballots after verification the voter is registered to vote in that precinct.
- New York. Election officials accept a provisional ballot when research at the county board confirms the voter’s eligibility, as claimed in their oath on the provisional ballot envelope.
- Oklahoma. Requires an affidavit whose relevant data (address, Social Security number, etc.) matches that in the state’s voter registration database.
- South Dakota. Counted only if documentation after Election Day proves that the person was properly registered to vote in that precinct.
- Tennessee. To include the provisional ballot in the tallying of votes, election officials need the voter’s valid ID within two days after the election.
- Texas. Texas law requires an affidavit if election officials can’t verify the voter’s registration or don’t have a valid ID. The affidavit should state the voter’s qualifications and eligibility to vote.
- Vermont. If a person not on the voter rolls submits an affidavit swearing they submitted a provisional application before the deadline, election officials will count their provisional ballot.
- Virginia. Provisional voters without photo ID have until noon on the Friday following the election to deliver a copy of the identification to the local electoral board. Election officials will only count their votes if they present their ID within this time frame.
- Wisconsin. Election officials issue provisional ballots to U.S. citizens who are first-time voters. They address those who need help bringing ID to the polling station or prove their home address. They also give provisional ballots to registered voters unable or unwilling to present a valid ID.
States emphasize different factors when deciding whether to count provisional ballots.
Are Some States Stricter About Provisional Balloting?
Source: For the complete article, http://www.findlaw.com
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