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.

In 2006, the U.S. Election Assistance Commission reported that of provisional ballots cast 15.6% of those rejected or 26,631 were not counted because voters were given ballots for the wrong precinct or were directed to vote in incorrect polling places; 5.37% or 9,181 were not counted due to missing information or a missing signature on the provisional ballot form; and 1.49% or 2,545 were not counted due to voter registration roll purges.

Thirty one states plus the District of Columbia only count provisional ballots that are cast on the correct precinct's ballot, even if federal and state-wide contests were voted on that ballot. These State laws are for the convenience of election officials because provisional ballots cast on the wrong precinct's ballot would have to be manually counted or remade on a correct (precinct) ballot in order to count them using optical-scan machines.

In 2008, officials received a flood of new voter registrations and may have not had time to process them all or the State motor vehicle department or post office may have neglected to forward voter registration information in a timely manner, increasing the use of provisional ballots.

In 2006, there were 791,831 provisional ballots cast nationwide, according to the U.S. Election Assistance Commission survey data. The 2008 election may result in more absentee and provisional ballots than in any election in U.S. history.

With the number of provisional and mail-in ballots more likely to exceed margins of victory than at any previous time in U.S. history, and with machine vote counts in virtually all states not being subjected to independent scientific post-election manual audits, it is vital for candidates and the press to wait for sufficient information before calling winners in any close State contests.

What follows are state-by-state profiles that may come into play on Election Day.

ARIZONA
Arizona had the highest provisional ballot usage of any state in 2006. 9.7% or almost one in ten voters voted provisionally, 30% of those rejected were thrown out due to being cast in the wrong precinct, and 28.7% of provisional ballots cast were not counted. Arizona has one of the strictest voter ID laws, so nearly 2,000 ballots were rejected due to lack of eligible ID.

COLORADO
According to news reports, provisional ballots are piling up in election offices all across Colorado. Mike Coffman, Colorado's Secretary of State, purged from 30,000 to perhaps more than 42,000 voters from voter rolls within 90 days of this election, even though purges during the last 90 days prior to an election is illegal under federal law. These voters must use a provisional ballot that will be counted after the election. In addition, nearly 36,000 first-time voters may have their ballots tossed out because they did not include a photocopy of their drivers' license or other ID when they mailed back their ballots. They may only have their ballots counted if they contact their county clerks with verification before the election. In addition, Sequoia Voting Systems mailed over 18,000 absentee ballots late, only after election officials received complaints. If mail-in voters who never received their ballots decide to go to the polls on Tuesday, they will be voting on a provisional ballot. In addition, Coffman decided that voters who forget to check a box in addition to providing the last four digits of their social security number, could not be registered to vote. Denver County is allowing such voters to fix their forms at the polls and vote regular ballots, but other counties are not. In 2006, 15.1% or 3,981 of the provisional ballots cast were not counted in Colorado.

FLORIDA
In 2006, 32% of Florida's rejected provisional ballots were rejected because they were cast in the wrong precinct or lacked voter signatures. Florida's "no match, no vote" procedure is likely to result in an unusually high number of provisional ballots and thousands of registration applications have been flagged for data matching problems. In early voting in Duval County, 31% of questionable ballots were already rejected, including Lisa Rigg's ballot because they said that her signature did not match the one on file. When Rigg asked if she could come down and prove that she signed the ballot, the answer was "No." Challenged voters may also be forced to vote provisionally. Some county election supervisors, like Deborah Clark of Pinellas County, are allowing voters to resolve "matching" problems at the polling place on Election Day.

GEORGIA
The citizenship of about 4,500 new voters has been questioned through Georgia's new system while an additional 50,000 had been "flagged" because some of the voter registration information does not match motor vehicle or social security databases. These voters will vote on what Georgia Secretary of State Karen Handel is calling "challenge" [provisional] ballots, which are not counted until the discrepancies are sorted out after the election.

INDIANA
Indiana's new voter identification law is considered to be the strictest in the nation, requiring a government issued photo ID. Voters without the eligible ID must cast a provisional ballot and produce an eligible ID within ten days. A challenge to voter's residency or eligibility also can result in provisional ballot use. In 2006, Indiana counted only 45% of its provisional ballots. Absentee ballots challenged at the polls on Election Day may be set aside [as provisional ballots] for review by bipartisan teams later in the week.

NEW MEXICO
New Mexico had an unbelievable 12% rate of provisional ballot usage in its 2008 Super Tuesday primary election, throwing the Democratic primary there into question after the election.

OHIO
In Ohio, due to recent legislation, provisional ballots are used whenever voters register on the same day they vote, if they don't bring the right identification to the polls, if their mailed voter registration notice was not returned, if they voted on an absentee ballot, voted on the wrong precinct's ballot, were not added to the voter rolls in time due to the backlog, or if long lines lead to a court decision to keep the polls open and arrive after the normal poll-closing time. In Ohio 2006, 18.1% or 23,062 provisional ballots were not counted and almost half of those, 10, 600 ballots were not counted because voters voted on the wrong precinct's ballot. Hamilton County Ohio has decided not to count at least 20,000 early absentee ballots until well after reporting its election night vote tallies. Ohio Secretary of State, Jennifer Brunner, has announced that election results in Ohio will not be available on election night.

Looking To Tuesday
Candidates and press will want to determine if the number of uncounted provisional and mail-in ballots exceeds the state-wide reported margins for all close election contests before calling winners. A waiting period before calling the contests in some swing states would also provide time to make public records requests for the detailed vote count data and election records that can be mathematically analyzed to detect any patterns that are consistent with possible unaudited machine vote miscount.

For documents and citations used in this report, click here.