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Provisional Voting Questions Loom Over Election

In one battleground state — Ohio — a federal appeals court rendered a major blow to Democrats, ruling that votes cast outside of a person’s precinct would not be counted, a contested interpretation of a new election law.

In 2002, President Bush signed the Help America Vote Act, a law intended to help states administer federal elections after the 2000 election debacle.

“It’s shocking to many people that we really don’t have a national voting system. As a consequence of that decentralized, state-based approach, there’s information we just don’t have. We’re flying without instruments,” DeForest Soaries, chairman of the new commission overseeing election procedures, told the NewsHour in October.

As part of HAVA, all states are required to have provisional ballots to ensure that voters who turn up at a polling place, but are not on the list of voters, will receive a ballot. Those ballots will later be examined to see if they should be counted.

Problems with the law, however, have stemmed from different states’ interpretation of provisional ballots. In five battleground states, lawsuits have been filed to determine which of the provisional ballots should be counted.

Twenty-eight states do not count provisional ballots if they are cast in the wrong precinct, while 17 other states count the votes for federal and statewide races even if they are cast in the wrong precinct. The remaining states allow for registration on Election Day, and therefore do not use provisional ballots, Stateline.org reported.

“Many people are afraid that provisional voting could be the hanging chad of 2004,” Doug Chapin, director of Electionline.org, told Stateline.org. Electionline.org is a nonpartisan Web site that provides news on election reform and is funded by The Pew Charitable Trusts — the same funder as Stateline.org.

Court Cases

The debate surrounding HAVA’s interpretation has become a highly partisan issue. Democrats favor a looser interpretation of the law that would allow votes cast in the wrong precinct to count, while Republicans want stricter rules that only allow ballots to count if they are cast in the correct precinct.

Ohio is just one example of several states where the so-called chads of 2004 have sparked legal battles.

Ohio’s Secretary of State Kenneth Blackwell had first ruled that only votes cast in the correct precinct would count — a decision that was overturned. However, the 6th U.S. Circuit Court of Appeals reinstated Blackwell’s ruling on Oct. 23.

In Ohio, a coveted state for the candidates, some experts say provisional ballots may decide the election.

In 2000 Bush won Ohio by 165,000 votes. That year, 109,000 provisional ballots were counted — 90 percent of those cast. An even higher number of provisional ballots are expected this year, The Plain Dealer reported.

Population shifts, however, from the 2000 census led to many precincts being redrawn and voters may still not know their correct polling place.

Don Tokaji, a professor at Ohio State University, told The Plain Dealer he hopes the controversy surrounding provisional ballots will force Congress to eliminate some of the ambiguity in the law before the next election.

“It’s quite clear we have some holes and flaws in our laws,” he said.

Waiting Game

Aside from provisional ballots’ state-to-state rules, the lag time for counting the votes has received a lot of attention.

“My top concern right now,” said Richard Hasen, a professor at Loyola Law School told The New York Times, “is that Ohio or Missouri or Florida is separated by a few thousands votes and there’s a stack of provisional or absentee ballots to be counted.”

Not only will it take a while to sort through the provisional ballots — Colorado, for example, allows 12 days for the ballot to be counted — but any decisions related to the ballots will be made by individual election officials rather than guided by hard and fast rules.

“That’s classic Bush v. Gore,” Edward Foley, a law professor at Ohio State University, told the Times.

“Human beings are going to be making judgments about handwriting and whether a utility bill can be good ID. I’ve been trying to figure out for six months what the standard is. We have not found a standard in any state on who even bears the burden of proof,” he added.

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