Election 2014: The Vote You Save May Be Your Own

Millions of Americans will head to the polls today, and many of them will confront some of the most serious obstacles to voting in decades, including strict new photo ID requirements in several states. No voter, however, should be turned away without the opportunity to cast at least a provisional ballot. In an environment in which partisan legislatures aggressively curtail voting rights, the protections provisional ballots offer are especially vital.

Provisional ballots exist as a safeguard against wrongful disenfranchisement of the type that marred the 2000 presidential election. Florida had purged thousands of its valid voters from the rolls, irrevocably denying them their right to participate. To fix this problem, in 2002 Congress required states to offer provisional ballots to any voter who experiences an issue at the polls. Now, if a dispute over eligibility is resolved in the voter’s favor, the provisional ballot contains a record of the voter’s choices, and it will count along with the regular ballots.

During the 2012 presidential election, voters nationwide cast 2.7 million provisional ballots, or over 2 percent of the 126 million total votes; the 2010 midterms had over one million provisional votes out of 90 million. States usually count about two-thirds of provisional ballots, with the rest rejected due to the voters’ ineligibility.

Election officials cannot declare an official winner until they count every eligible provisional ballot. The fact that states reject some of them does not diminish their importance as a fail-safe for voters. What it does mean is that America must develop better voting mechanisms to reduce the need for provisional ballots, and Congress must give stronger guidance on how states should count these votes.

Provisional ballots determine some races in almost every election year. In 2008, Missouri’s Electoral College votes for president hinged on provisional ballots. That same year, provisional ballots decided a congressional race in Ohio. Provisional ballots figured decisively in Virginia’s attorney general election last year, and in the 2004 governor’s race in Washington. They also changed the outcome in North Carolina’s 2004 election for the state’s education chief, and they could be pivotal again in that state’s close Senate race this year.

In today’s election, given the recent rash of restrictive voting laws, the safety net of provisional voting is particularly important. The Supreme Court, responding to emergency petitions, considered whether to block these laws temporarily in four states — Texas, North Carolina, Wisconsin and Ohio. In three of the four cases (all but Wisconsin’s), the court ruled that for today’s election, the restrictive laws may take effect. But these rulings were procedural only and did not decide the ultimate merits of the cases. Nor did the court negate the obligation of poll workers to give voters provisional ballots, even if a voter cannot comply with the new law.

When officials review these ballots after polls close tonight, they must not reject any because of an unconstitutional state law. Consider Texas. The validity of that state’s stringent new rule, which requires a voter to present an approved government-issued photo ID to poll workers, is still at issue in a pending lawsuit. Last month, a federal judge determined that the law is unconstitutional and violates the Voting Rights Act. The upshot is that although the Supreme Court refused to allow that decision to go into effect immediately, any provisional ballots cast because of the law are still valid votes. In this way, provisional voting exists to give eligible voters a life jacket to protect against disenfranchisement.

Moving forward, Congress should provide clearer directives to states on when they must count provisional ballots. It should unequivocally insist that if the voter was entitled to a regular ballot in the first place, but did not receive one because of a state’s own error in the implementation of its laws, then it would be fundamentally unfair to disqualify the provisional ballot.

But even without congressional reform, this much is undeniable: Provisional ballots can work to prevent disenfranchisement by an invalid state law. They are the ultimate stopgap in protecting the fundamental right to vote. Poll workers must provide them; voters must demand them. The stakes could not be higher: In a 2016 swing state, they could even determine the outcome of the presidential election.