If Tuesday's Vote is Close, Get Ready for a Slow Count

If the vote count is close on Tuesday night, there's a good chance Americans will become as familiar with a special kind of voting - known as a provisional ballot - as they were with hanging chads in Florida in the aftermath of Florida's disputed 2000 presidential election.

That is because in several battle ground states the number of provisional ballots - which have to be checked one by one after Election Day to validate the voter's registration information before counting - plus the number of uncounted mail-in ballots are likely to exceed the margins of victory.

In other words, if it is a close vote, you can expect Republican and Democratic Party lawyers to start fighting over the state-by-state and county-by-county rules concerning provisional ballot eligibility. Provisional ballots were created by Congress after the 2000 election, but each state was given the leeway to implement its own rules for accepting or rejection these ballots.

In states like Colorado and Florida where strict matching rules have been used to purge voters from electronic voter registration rolls, and in states like Indiana and Ohio where new stricter voter identification laws have been implemented, more eligible voters than ever before will cast provisional ballots that are not counted on Election Night.

Recent implementation of no-fault absentee voting in many states, together with the rational distrust of e-ballot voting machines, and election officials who have encouraged voters to use mail-in ballots in order to reduce lines on Election Day have all combined to increase the use of absentee ballots that may also not be counted on Election Night in some states.

The logical consequence is that the rate of uncounted mail-in and provisional ballots could overtake the unofficial reported margin between candidates in several States.

It is therefore very likely that the press and candidates will not be able to call close elections in several States on Election Night - and may have to wait days or possibly weeks until sufficient mail-in and provisional ballots are evaluated for eligibility and counted or even possibly contested by candidates.

To accurately call the winner of any close State election contest, press and candidates must first do the following little numerical comparison first: IF the total number uncounted absentee and provisional ballots cast in any election contest in any State is greater than the difference between the unofficial reported votes for a winner and runner-up THEN the candidate and the press will have insufficient information to determine the winner.

State election officials do not customarily report the number of uncounted provisional and absentee ballots when reporting initial results, although they could collect the provisional and mail-in ballot data from local election officials and publicize this information with their unofficial results on election night.

Candidates or press may have to make public records requests for the names of voters who cast provisional ballots, and for each ballot whether or not it was counted, and if rejected, the basis for the rejection.

This situation (more uncounted provisional and mail-in ballots than close margins) is likely to occur in States like Ohio, Florida, Indiana, and Colorado - or in any state that has flawed voter roll purges or voter registration practices, unusually high mail-in ballot rates, high provisional ballot usage, or strict voter ID laws such as Arizona, Kentucky, New Mexico, Nevada, New York, Pennsylvania, Missouri, Michigan, Wisconsin, California, Georgia, Louisiana, and Oregon.

Voters' provisional ballots are often not counted - due to no fault of their own - but because election officials are inattentive or make errors or want to make ballot counting convenient for themselves.