The Failures of ‘Fail-Safe’ Voting

Scott Novakowski, a senior policy analyst for Demos, submitted this post as a guest blogger for The Hill.

Americans are by now well aware of the widespread problems that shook our election system in 2000 and in 2004. Congressional leaders have introduced legislation to address these issues, and research studies and news investigations have looked into some of the most egregious problems that disenfranchised eligible citizens. But as news reports in this off-year election, newly illuminated problems from 2006, and recent congressional hearings have shown, there’s still a lot of work to be done to ensure the integrity of the election process, particularly in the often-overlooked area of provisional balloting.

According to a recent news report, voters in Utah were illegally denied provisional ballots in the Ogden, Utah, mayoral race. The American Civil Liberties Union of Utah has received complaints from voters who were denied provisional ballots and turned away from the polls after their names ended up on a challenge list circulated by the campaign of incumbent Mayor Matthew Godfrey. For his part, Godfrey also claims that some of his supporters were turned away from the polls without being offered a provisional ballot. The ACLU has launched an investigation into the irregularities.

Media reports in Virginia, leading up to that state’s recent General Assembly elections, suggested that problems with the state’s new computerized voter registration system could have driven many voters to cast provisional ballots. Fortunately, and largely through happenstance, those problems were averted. But not before several counties publicly questioned the accuracy of their election information and a registrar from Charlottesville went so far as to warn the county’s elected officials to expect problems on Election Day. If the predicted meltdown had occurred, provisional ballots would have been the only safety-net available to these voters.

What these incidents illustrate is a troubling replay of some of the problems documented in Demos’ new report “A Fallible ‘Fail-Safe’: An Analysis of Provisional Balloting Problems in the 2006 Election.” (Full disclosure here: I’m the author of the report and work at Demos). Based on an extensive examination of data reported to a national 800-number hotline coordinated by the non-partisan Election Protection Coalition, the report outlines problems with voter lists and the failings of so-called “fail-safe” provisional ballots in the November 2006 election.

Under the Help America Vote Act of 2002 (HAVA) states must offer “fail-safe” provisional ballots to all individuals who believe they are registered to vote but whose names do not appear on the rolls, who do not meet identification requirements, or whose eligibility is challenged at the polls. Such ballots are counted if election officials subsequently determine that the individual was a legitimate voter under state law.

There is considerable evidence that so-called “fail-safe” ballots did in fact fail many voters in the 2004 election. For example, over one of three of the two million provisional ballots cast nationwide in that election were ultimately rejected. Many states had a much worse record. For example, Virginia, a state eager to pass out provisional ballots as a cure-all for voter list problems in 2007, only counted 16 percent of the provisional ballots cast statewide in 2004.

Although comprehensive data on provisional ballot performance is not yet available, Demos’ new report indicates significant failures in 2006 as well. Many voter registration lists in use on Election Day 2006 were riddled with errors, causing voters who believed that they were registered to be left off the rolls at their polling places. Moreover, poll workers and election officials were still often confused about the proper application of provisional ballots two election cycles after the Help America Vote Act went into effect. As recently happened in Utah, eligible voters were denied provisional ballots while other voters eligible to vote by regular ballot were instead issued a less reliable provisional ballot. In other cases, due to unnecessarily stringent state standards for counting provisional ballots, voters cast provisional ballots that were sure to be discounted thereafter.

Provisional balloting was the subject of a recent congressional subcommittee hearing and, notably, several Congress members have sponsored legislation to correct many of the problems with provisional ballot administration. For example, the Count Every Vote Act introduced by Sen. Clinton (S. 804) and Rep. Tubbs-Jones (H.R. 1381) as well as legislation introduced by Sen. Feinstein (S. 1487), and Rep. Holt (H.R. 4145) all contain provisions that would greatly improve the reliability of provisional balloting. Finally, the ultimate solution to provisional balloting problems is for states to adopt Election Day Registration (EDR), a truly “fail-safe” reform that will allow all eligible voters to cast a vote – and have that vote counted – on Election Day. Legislation by Sen. Clinton (S. 804), Rep. Tubbs-Jones, Rep. Ellison (H.R. 2457), and Sen. Dodd (S. 730) would provide for EDR.

Problems in the administration of provisional ballots such as those documented in “A Fallible ‘Fail-Safe’” must be corrected before the 2008 election. These proposals are a good place to start.