In March, Georgia Republican Gov. Brian Kemp signed into law sweeping new restrictions regulating the right to vote. Among the attacks on suffrage is a provision that invalidates provisional ballots cast in the wrong precinct during working hours. For those old enough to remember, this provision evokes painful memories of Florida’s “meltdown” in the 2000 presidential election. And for those who were still paying attention when Congress passed the Help America Vote Act two years later, it raises the question: How can we possibly still be invalidating provisional ballots?
The 2000 election is now best remembered for hanging chads, butterfly ballots, and the Supreme Court’s decision in Bush v. Gore. But lurking beneath these more prominent controversies was yet another failure in the state’s election administration. Florida, it turned out, had erroneously removed thousands of voters from the rolls due to a name-matching error in its election software that mistakenly classified too many voters as felons. When these voters arrived at their local precincts on Election Day, they were turned away, bewildered. Florida, like many states at the time, did not provide provisional ballots—that is, ballots that voters whose registration is in doubt may cast and later have reviewed for eligibility. So when poll place volunteers turned these voters away, there was no backup option for capturing their votes.
Florida was not alone. Following the 2000 election, researchers at Caltech and MIT found that as many as 3 million voters across the country may have been disenfranchised due to voter registration mishaps. Yet provisional ballots were available in only one-third of states. Another study suggested that if the “aggressive use of provisional ballots” had been in place during the 2000 election, up to 1.5 million votes could have been saved.
With this data in hand, Congress passed the Help America Vote Act, or HAVA, in 2002 to help solve the problem. The bill had broad bipartisan support, passing the Senate on a vote of 92–2. HAVA created a “fail-safe” that requires states to offer provisional ballots to any voter whose registration is in doubt on Election Day, but who signs an affidavit affirming they are eligible to vote. That should have been the end of the story: Provisional ballots ought to have become a reliable safeguard against administrative error in American elections, saving more than 1 million votes a year. Instead, provisional ballots have become a mainstay of U.S. elections only insofar as they can be counted on to generate controversy. Provisional ballots nearly caused a Florida redux in 2004 and, as Georgia’s new law illustrates, they remain a source of debate today. What happened?
Just two years after President George W. Bush signed HAVA into law, provisional ballots nearly became the hanging chads of the 2004 election. That election, in which Bush ran for a second term against Sen. John Kerry, turned on the outcome in Ohio. When America awoke on Nov. 3 of that year, Bush led in Ohio by 136,000 votes, with 153,000 provisional ballots still outstanding. A flurry of lawsuits sprang to life about how to count those ballots, but, recognizing an insurmountable margin, Kerry conceded the election. Had the result been closer, though, the Supreme Court may have been forced to resolve a second consecutive presidential election.
Kerry himself did not challenge the outcome of the 2004 election, but lawsuits over provisional ballots proceeded in Ohio and other states. It is the outcome of those lawsuits that explains how states like Georgia have continued to resist the adoption of provisional ballots.
The provisional ballot litigation in 2004 was ultimately resolved on a technicality. A careful read of HAVA’s text reveals that the law requires states to permit voters to “cast” provisional ballots. But as courts in Ohio, Florida, and Colorado pointed out, it does not require states to count those ballots. So, according to the courts, HAVA creates a right to cast a provisional ballot; it does not create a right to have that provisional ballot counted.
The upshot is that states, many of which opposed HAVA’s provisional ballot requirement to begin with, have been able to impose restrictions on provisional ballots that, like Georgia’s, render many provisional votes meaningless. Indeed, according to the Election Assistance Commission, of the nearly 2.5 million provisional ballots cast in the 2016 presidential election, nearly 25 percent were rejected. (2020 data is not yet available.)
Many of these ballots are invalidated by what are known as “wrong precinct” restrictions. Under these rules, if a voter casts a provisional ballot in the wrong precinct—even if they are otherwise eligible and voting in a federal election for which precinct has no bearing on eligibility—their ballot is rejected. Georgia’s new law imposes just such a requirement, instructing poll workers to turn away voters who arrive at the wrong polling place and invalidating any provisional ballot cast from the wrong precinct before 5 p.m.
Requiring voters to show up at the proper precinct may seem like a small ask. But, for many reasons, it can be more complicated than it appears. Consider a few common scenarios. First, voters who move counties in the lead-up to an election may be unsure whether they are supposed to vote in their old precinct or their new one. Second, poll closures can cause confusion about where a voter whose precinct has been shut down is required to appear. This problem is particularly acute in Georgia; the state has shuttered hundreds of polling places (disproportionately in Black communities) since the Supreme Court’s 2013 decision in Shelby County v. Holder gutting the Voting Rights Act. Third, the “right church, wrong pew” problem can result in the simplest of mistakes: A voter arrives at the correct polling place but, because the site serves as a poll place for multiple precincts, goes to the wrong table and therefore casts an out-of-precinct ballot.
But it is not only voter error that generates out-of-precinct ballots. Mistakes by the state and by poll workers can result in inaccurate information on Election Day. Recall the Florida error in 2000. Because the state furnished poll workers with inaccurate registration lists, eligible voters attempting to vote in the correct precinct were turned away. States invariably make similar voter registration errors that lead poll workers to believe, incorrectly, that voters are not registered in a particular precinct. And volunteer poll workers make mistakes as well. In an infamous Ohio case, for example, a poll worker directed a voter to the wrong precinct because the worker mistakenly believed the voter’s address, 798, was an odd number. (The volunteer later claimed in a deposition that 798 was odd because it contained more odd numbers than even ones.) An Ohio court ordered the state to count the votes invalidated due to poll worker error. But there would be no remedy under the new Georgia law for a voter who, having been improperly turned away after an hourslong wait at one precinct, decided to go home rather than making the journey to another poll site.
Invalidating provisional ballots matters—not only because counting every eligible vote is a basic tenet of democracy, but also because provisional ballots may affect electoral outcomes. Georgia received over 21,000 provisional ballots in the 2018 election, nearly double the vote differential between Joe Biden and Donald Trump in the 2020 election. And Florida, where our story began, was decided by 537 votes in 2000; it received over 13,000 provisional ballots in 2018. Counting provisional ballots, then, is not only necessary as a democratic value—it is a precondition to accurate electoral outcomes.
So how, 20 years after Congress recognized the importance of provisional ballots, do we finally ensure that no eligible voter is disenfranchised because of Election Day mishaps? The For the People Act, which passed the House in March and now has a companion introduced in the Senate, would finally deliver that basic promise. In language that clearly reflects a lesson learned, the act requires state election officials to “count each vote” cast on a provisional ballot by an eligible voter, “notwithstanding the precinct or polling place at which a provisional ballot is cast.”
Democratic Sen. Joe Manchin seemed to sign the death warrant for the current version of the For the People Act when he wrote in the Washington Post, “There is no circumstance in which I will vote to eliminate or weaken the filibuster.” But he also expressed his expectation that Congress would take “bipartisan action on voting reform.” Counting provisional ballots should be a source of that agreement.
In the wake of Bush v. Gore, a bipartisan Congress united to vote on a bill that they believed would ensure “no American qualified to vote anywhere in her or his state” would “be turned away from a polling place in that state.” But the right to cast a ballot does not much matter without the right to have it counted. So while the For the People Act has become a lightning rod for partisan controversy, giving this one right some meaning ought to be a source of common ground. Congress should come together and do just that.
