Voter ID and Provisional Ballots
As noted by Dan Tokaji on his blog, Equal Vote, the U.S. Department of Justice issued a letter to the Secretary of State of Arizona addressing the Help America Vote Act's requirements regarding provisional ballots and voter identification requirements. DOJ stated in its letter that a voter who lacks the state-required identification must be permitted to vote a provisional ballot, but that it's within the state's discretion to determine if the ballot should be counted without the requisite identification. Previously, Arizona, with the DOJ's blessing, was going to deny a provisional ballot to any voter lacking identification.
Tokaji takes exception to the DOJ characterization that it's within the state's power to determine if a provisional ballot should be counted. He argues that such an interpretation would allow Arizona to issue "dummy" ballots to voters with no identification - ballots that local officials have no intention of counting.
It's important to understand the purpose of a provisional ballot to discern whether the DOJ's comments are in accord with the Help America Vote Act.
A provisional ballot is a tool that allows a person to cast a ballot on election day when there is a question about his or her eligibility. Perhaps his or her name was (by design or error) left off the voter list and registration officials cannot yet confirm that he or she submitted an application. Perhaps the voter's name was wrongly removed from the voter list based on incorrect information related to a change of residence or felony conviction. Or, in the case, of Arizona and Alabama (as will be discussed below), the voter does not have a required form of identification.
The provisional ballot allows the voter an opportunity to cast the ballot and get his or her votes on record so that they can be included in official tabulations if the eligibility issues are resolved in his or her favor. This procedure ensures the voter is not denied a ballot on election day only to discover later that he or she was indeed qualified to vote.
The provisional ballot is not intended as a means to avoid voter eligiblity requirements. A voter who casts such a ballot must actually be a registered voter and must meet the state's qualifications for voting. To say otherwise would suggest that provisional ballots are a form of election day registration which allows a voter to avoid whatever mechanisms a state has put in place to ensure the integrity of its election process.
In Alabama, voters have two choices if they show up at the polls without their identification. They can return home to get their identification or they can vote a provisional ballot. If they vote a provisional ballot due to lack of identification, they have until the Monday after the election to present their ID to registration officials. If they do not present ID by that Monday, then their ballot will not be counted. Given the various forms of identification permissable under Alabama election law, this procedure seems to strike a good balance between the goal of election integrity and ensuring a voter unfamiliar with the ID requirement can remedy the problem and thus have his or her vote counted.
According to this Associated Press report, Arizona intends to implement a similar procedure by providing the voter a designated number of days after an election to present his or her ID.
There can be honest debate as to whether Arizona's, or Alabama's, or Georgia's, voter identification requirement is properly crafted to meet the goal of election integrity (if it's even necessary to prevent fraud) while minimizing any burden on the voter. And in point of fact, based on what I have read of the situation in Georgia, I share Tokaji's and other's concerns about that state's new photo identification requirement.
But, in those cases where the identification law is not an insurmountable or discriminatory burden to voting, states would appear to have the right to use that requirement and be able to enforce that requirement.
Tokaji takes exception to the DOJ characterization that it's within the state's power to determine if a provisional ballot should be counted. He argues that such an interpretation would allow Arizona to issue "dummy" ballots to voters with no identification - ballots that local officials have no intention of counting.
It's important to understand the purpose of a provisional ballot to discern whether the DOJ's comments are in accord with the Help America Vote Act.
A provisional ballot is a tool that allows a person to cast a ballot on election day when there is a question about his or her eligibility. Perhaps his or her name was (by design or error) left off the voter list and registration officials cannot yet confirm that he or she submitted an application. Perhaps the voter's name was wrongly removed from the voter list based on incorrect information related to a change of residence or felony conviction. Or, in the case, of Arizona and Alabama (as will be discussed below), the voter does not have a required form of identification.
The provisional ballot allows the voter an opportunity to cast the ballot and get his or her votes on record so that they can be included in official tabulations if the eligibility issues are resolved in his or her favor. This procedure ensures the voter is not denied a ballot on election day only to discover later that he or she was indeed qualified to vote.
The provisional ballot is not intended as a means to avoid voter eligiblity requirements. A voter who casts such a ballot must actually be a registered voter and must meet the state's qualifications for voting. To say otherwise would suggest that provisional ballots are a form of election day registration which allows a voter to avoid whatever mechanisms a state has put in place to ensure the integrity of its election process.
In Alabama, voters have two choices if they show up at the polls without their identification. They can return home to get their identification or they can vote a provisional ballot. If they vote a provisional ballot due to lack of identification, they have until the Monday after the election to present their ID to registration officials. If they do not present ID by that Monday, then their ballot will not be counted. Given the various forms of identification permissable under Alabama election law, this procedure seems to strike a good balance between the goal of election integrity and ensuring a voter unfamiliar with the ID requirement can remedy the problem and thus have his or her vote counted.
According to this Associated Press report, Arizona intends to implement a similar procedure by providing the voter a designated number of days after an election to present his or her ID.
There can be honest debate as to whether Arizona's, or Alabama's, or Georgia's, voter identification requirement is properly crafted to meet the goal of election integrity (if it's even necessary to prevent fraud) while minimizing any burden on the voter. And in point of fact, based on what I have read of the situation in Georgia, I share Tokaji's and other's concerns about that state's new photo identification requirement.
But, in those cases where the identification law is not an insurmountable or discriminatory burden to voting, states would appear to have the right to use that requirement and be able to enforce that requirement.
posted by Ed at 11:25 PM
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