Originally Published October 30, 2014

By Zenitha Prince

Provisional ballots are being misused, including as a potential tool to suppress the votes of African Americans and other minorities, concludes a report released by the Center for American Progress (CAP) Oct. 29.Center for American Progress1

After the dismal 2000 presidential elections in which millions of votes went uncounted, Congress passed the Help America Vote Act, which established the provisional voting process in addition to other reforms.

“It was meant to be used as a fail-safe,” said Michele Jawando, CAP’s vice president for legal progress. “ what the report found is that instead of being used for their original purpose, provisional ballots are being used in place of effective election administration.”

Provisional ballots are usually issued when a voter encounters a problem at the polling place.

Voter error accounts for about 3 percent of the cases when provisional ballots are used in place of regular ballots, according to an analysis conducted by the public policy organization Demos after the 2004 election.

More frequently, however, the issuance of provisional ballots stems from problems with elections law and administration, the report asserts, including, cumbersome voter registration procedures, restrictive voting laws, lack of voter education, poorly maintained voter registration lists, and lack of training and mismanagement by election officials.

Some poll workers, for example, will let a voter cast a provisional ballot in the wrong precinct even though that state rejects all ballots cast outside a voter’s designated precinct. Or, if the polling place runs out of regular ballots, they would direct voters to cast provisional ballots.

More troubling, the report found signs that the use of provisional ballots could be systemic, that is, deliberately used with a racially discriminatory purpose.

“We realized this could be another way of disenfranchising communities of color,” Jawando said. “The usage of provisional ballots seem to be directly correlated with communities of color and with communities where people speak a language other than English.”

Examining data form the 2012 presidential election, the study found that voters in counties with a higher percentage of minorities cast provisional ballots at higher rates than in counties with lower percentages of minorities in 16 states.

In Maryland, for example, Prince George’s County has a minority population rate of 80 percent, and its rate of provisional ballots cast was 4.3 percent. Carroll County’s minority population, on the other hand, comprises only 6.7 percent of the total voting-eligible population, and just 1.3 percent of voters cast provisional ballots.

Given that a significant number of provisional ballots are rejected or never counted, the findings raise serious questions about whether minority voices will be heard in this year’s midterm election, particularly due to the influx of suppressive voter laws since 2012.

According to the study, 2.7 million voters—1 out of every 41—submitted provisional ballots in 2012, representing a 29 percent increase from 2008.  And, of those 2.7 million provisional ballots, 24.1 percent were rejected entirely, and 6.7 percent were only partially counted—that is, not all of the candidates and/or measures the voter selected were added to the final tabulation.

In Maryland, 14 percent of provisional ballots were rejected because the voter was not registered in the state (83.4 percent); signature was absent (5.9 percent) and the voter failed to provide sufficient identification (4.6 percent).

The purpose of the report titled, “Uncounted Votes: The Racially Discriminatory Effects of Provisional Ballots,” is not only to highlight the problems associated with provisional ballots, but also to spur election officials to make necessary changes to ensure every vote is counted, Jawando said.

“There are so many states passing restrictive voting laws so there are large segments of our community that aren’t even making it to the polls,” Jawando said. “So, when someone does make it, we need to make sure their vote is counted.”

The report offered several recommendations to address the underlying issues related to provisional ballots, including: modernizing voter registration, implementing same-day registration, providing online registration, expanding early voting and easing rules that require voters to cast ballots in specific counties or precincts.

However, Jawando said, “Passing good laws is only one step of the process.”

Poll workers need to be trained, and, more importantly, voters—particularly minority voters—need to be educated.

“The most important thing is we want voters to know that the best way to counter any attack is to go out, vote, and be ready to vote by knowing what you need to bring and where you need to go,” Jawando said. She added that the report should also act as an impetus to voters of color.

“We do have a powerful voice. We do have things to say…. They are counting on us to be so apathetic that we don’t turn out,” she said. “, I hope people realize that if people are working so hard to keep your ballot from being counted that means you have something of value, and you should use it.”


Zenitha Prince

Special to the AFRO