A provisional ballot is used to record a vote when there is some question about a voter’s eligibility. Provisional ballots may be utilized when the voter’s name is not on the voter list, the voter’s eligibility is challenged pursuant to state law, the voter is in the wrong polling place, or the voter cannot provide the ID required by federal or state law.

The Help America Vote Act of 2002 (“HAVA”) guarantees that any voter who shows up at the polling place, anywhere in the country, who is not able to cast a regular ballot is given a provisional ballot. After the election, the appropriate state or local election entity will determine if the voter was eligible using the information on the provisional ballot envelope, voter registration records and any other available source. If the election entity determines the voter was eligible, it will count the vote and notify the voter of the outcome. Additionally, under HAVA, any time polling hours are extended, voters are required to vote using provisional ballots.¹

In the 2004 election, 1.9 million U.S. voters cast provisional ballots. However, only 1.2 million (64.5%) of these provisional ballots were counted.²

Provisional balloting allows voters to meaningfully exercise their right to vote on Election Day, but there are problems. First, many poll workers are not trained properly with regards to provisional balloting. They frequently fail to inform voters of their right to cast a provisional ballot give voters incorrect ballots and misinform voters about how to use provisional ballots or whether and under what circumstances their provisional ballot will count. Second, there is a lack of clear and uniform standards for counting provisional ballots, especially on the issue of whether or not to count provisional ballots cast outside a voter’s assigned precinct. Twenty-seven states do not count provisional ballots cast in the wrong precinct, while seventeen states count provisional ballots as long as they are cast in the correct county. The issue of whether to count provisional ballots cast in the wrong precinct has a tremendous effect on election results. A study conducted after the 2004 election indicates that jurisdictions that count provisional ballots cast in the wrong precinct count almost 72% of provisional ballots cast in the jurisdiction, while jurisdictions that only count provisional ballots cast in the right precinct count only half of all provisional ballots cast.³