In March Georgia Republican Governor Brian Kemp signed law introducing new restrictions on the right to vote. Attacks on the right to vote include a provision that invalidates preliminary ballot papers cast in the wrong district during working hours. For those old enough to remember, this provision brings back painful memories of Florida’s “collapse” in the 2000 presidential election. And for those who were still paying attention when Congress passed the Help America Vote Act two years later, how can we possibly invalidate tentative ballots?
The 2000 election is best remembered by hanging Chads, butterfly votes, and the Supreme Court decision in the Bush v Gore case. Amid these more prominent controversies, however, lurked another failure in the state’s electoral administration. It found that Florida mistakenly removed thousands of voters from the list because of a name-matching bug in its voting software that incorrectly classified too many voters as offenders. When these voters arrived in their local counties on election day, they were turned away in confusion. Florida, like many states at the time, did not cast tentative ballots – that is, ballots that voters whose registration is in doubt may have cast and later checked for eligibility. When polling volunteers turned these voters away, there was no backup option to record their votes.
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Florida wasn’t alone. Following the 2000 elections, researchers from Caltech and MIT found that up to 3 million voters across the country may have been disenfranchised due to voter registration failures. However, preliminary ballots were only available in a third of the states. Another study found that “aggressive use of provisional ballots” during the 2000 elections could have saved up to 1.5 million votes.
With this data, Congress passed the Help America Vote Act (HAVA) in 2002 to help resolve the problem. The bill had broad support from both parties and passed the Senate with a 92-2 vote. HAVA has created a “resilience” according to which states must offer preliminary ballot papers to any voter whose registration is in doubt on election day but who signs an affidavit confirming that they are eligible to vote. That should have been the end of the story: Provisional ballot papers should have become a reliable protection against administrative errors in American elections and should have saved more than 1 million votes per year. Instead, tentative ballots have become a mainstay of the US election only insofar as they can be relied upon to spark controversy. Preliminary ballots nearly resulted in a cut in Florida in 2004, and as the new Georgian law shows, they remain a source of debate to this day. What happened?
Just two years after President George W. Bush signed HAVA, tentative ballots became almost the hanging Chads of the 2004 election. That election, in which Bush ran for a second term against Senator John Kerry, centered on the Ohio result . When America woke up on November 3 of that year, Bush led Ohio with 136,000 votes, with 153,000 tentative ballots pending. A series of legal disputes over the counting of these ballots came to life, but when Kerry saw an insurmountable margin, he admitted the choice. However, had the result got closer, the Supreme Court might have been forced to vote for a second consecutive presidential election.
Kerry herself has not questioned the 2004 election results, but preliminary ballot lawsuits have been filed in Ohio and other states. It is the outcome of these lawsuits that explains how states like Georgia continue to oppose acceptance of preliminary ballots.
The preliminary election dispute in 2004 was finally settled for technical reasons. A careful reading of the HAVA text shows that the law requires states to allow voters to cast preliminary ballots. But, as courts in Ohio, Florida, and Colorado pointed out, states don’t have to count those ballots. According to the courts, HAVA creates the right to cast a preliminary vote. there is no right to have this preliminary ballot counted.
The result is that states, many of which initially opposed HAVA’s preliminary voting, have been able to impose restrictions on preliminary voting slips that, like Georgia’s, render many preliminary votes meaningless. Of the nearly 2.5 million tentative ballot papers that were cast in the 2016 presidential election, nearly 25 percent were rejected, according to the Election Assistance Commission. (Data for 2020 are not yet available.)
Counting preliminary ballots is a prerequisite for an accurate election Results.
Many of these ballot papers are invalidated by so-called “false district” restrictions. If a voter casts a preliminary ballot in the wrong district according to these rules – even if he is otherwise entitled and votes in a federal election for which the district has no influence on eligibility to vote – his ballot will be rejected. The new Georgian law prescribes just that. It instructs poll workers to turn away voters who arrive at the wrong polling station and invalidate any preliminary ballot papers cast before 5 p.m. from the wrong district
The requirement that voters appear in the correct district may seem like a small question. But it can be more complicated than it seems for many reasons. Consider some common scenarios. First, voters who relocate counties in the run-up to an election may be unsure whether to vote in their old or new district. Second, election closings can create confusion about where to appear for a voter whose district has been closed. This problem is particularly acute in Georgia. Since the 2013 Shelby County Supreme Court ruling against Holder that gutted the voting rights law, the state has closed hundreds of polling stations (disproportionately large in black communities). Third, the “right church, wrong bank” problem can lead to the simplest of mistakes: A voter arrives at the right polling station, but because the location serves as a polling station for several districts, he goes to the wrong table and therefore throws a ballot outside the district .
However, it is not just a voter mistake that leads to votes outside of the constituency. Mistakes made by the state and election workers can lead to inaccurate information on election day. Recall the Florida Mistake in 2000. Because the state provided inaccurate registration lists to electoral workers, eligible voters who tried to vote in the correct district were turned away. States invariably make similar voter registration mistakes that lead election officials to mistakenly believe that voters are not registered in a particular district. Volunteer campaigners also make mistakes. For example, in one notorious Ohio case, a poll worker redirected a voter to the wrong district because the worker mistakenly believed that the voter’s address, 798, was an odd number. (The volunteer later stated in a statement that 798 was odd because it contained more odd numbers than even numbers.) An Ohio court ordered the state to count the votes that were invalid due to an error by election officials. However, under the new Georgian law, there would be no remedy for a voter who, after waiting for hours in a district, was wrongly turned away and chose to go home instead of heading to another polling station.
The invalidation of tentative ballots is important – not only because counting each electoral vote is a fundamental principle of democracy, but also because tentative ballots can affect the election result. Georgia received over 21,000 preliminary ballots in the 2018 election, almost double the difference in votes between Joe Biden and Donald Trump in the 2020 election. And Florida, where our story began, was decided by 537 votes in 2000. More than 13,000 preliminary ballots were received in 2018. Counting preliminary ballots is therefore not only required as a democratic value, but also a prerequisite for accurate election results.
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So how can we finally, 20 years after Congress recognized the importance of tentative ballot papers, ensure that no eligible voter is disenfranchised due to mishaps on election day? The For the People Act, which was passed in March and now has a Senate companion, would finally fulfill that fundamental promise. In a language that clearly reflects the lessons learned, state election officials are required to “count every vote” an eligible voter cast on a preliminary ballot, “regardless of the district or polling station where a preliminary ballot is cast”.
Democratic Senator Joe Manchin appeared to be signing the death warrant for the current version of the For the People Act when he wrote in the Washington Post: “There is no circumstance under which I will vote to eliminate or weaken the filibuster.” But he also expressed his expectation that Congress would take “bipartisan measures for electoral reform”. The counting of preliminary ballots should be a source of this agreement.
After Bush v. Gore, a bipartisan Congress convened to vote on a bill they believed would ensure that “no American who is eligible to vote anywhere in his or her state” “is turned away from a polling station in that state becomes”. But the right to cast a ballot doesn’t matter much without the right to have it counted. While the For the People Act has become a lightning rod for party political controversy, it should be a source of common ground to give meaning to this one right. Congress should come together and do just that.
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