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Clearing Up The Issue Of Provisional Ballots

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Purges & Provisional Ballots

By Robert M. Duncan, Moritz College of Law

For full story see... Election Law @ Moritz - Free & Fair (Purges & Provisional Ballots)

This morning's front-page New York Times story on purges is, I believe, somewhat inaccurate in one potentially significant respect. After describing apparently unlawful purging practices in several states, the article says: "Some states allow such voters to cast provisional ballots."

My understanding of HAVA--and I believe the prevailing understanding in the legal community (of those who focus on HAVA-related issues)--is that HAVA requires every state to let all individuals cast a provisional ballot if they are willing to affirm that they believe themselves to be registered voters, as presumably would occur if there an unlawful or otherwise erroneous purge. The relevant provision is 42 U.S.C. 15482(a). (This requirement is inapplicable to states with Election Day Registration or without any form of voter registration, but the purging problem discussed in the article does not arise in those states.) Thus, any voter wrongly purged should be able to cast a provisional ballot, and it would be a qualitatively different problem on Nov. 4 if any voter who thinks he or she has been wrongly purged is denied a provisional ballot. That's what occurred in 2000, and that's what HAVA's provisional voting mandate was designed to avoid.

Of course, there is a separate question of whether the provisional ballots get counted, as the New York Times article notes. But given the predicate assumption that a voter was purged from a state's voter registration rolls in a manner that violates federal law, either HAVA or NVRA, it would seem that there is a very strong argument HAVA would require the counting of that provisional ballot (unless, perhaps, the review of the provisional ballot turned up some different basis for concluding that the voter was ineligible to vote--for example, being under age 18).

For full story see... Election Law @ Moritz - Free & Fair (Purges & Provisional Ballots)

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