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Election Fast Facts August 2021 – Provisional Ballots

What are Provisional Ballots?

Provisional Ballots is a practice of allowing voters to cast a ballot on Election Day when some aspect of their eligibility to vote is uncertain and not counting the ballot until their eligibility is verified so as to prevent eligible voters from being disenfranchised due to an administrative or correctable errors.

The most common reasons states require provisional ballots include:

  • The voter’s name is not on the poll or registration list;

  • The voter’s eligibility cannot be otherwise established (e.g. residency);

  • The voter does not have identification as required by that state;

  • The voter’s address or name has changed but their voter registration information does not reflect the change; (Some states such as Georgia require an exact match between the name on the voter rolls and the ID presented);

A provisional ballot allows two things to occur before counting a voter’s ballot when there is uncertainty about their eligibility:

  • Election officials have an opportunity to verify the voter’s eligibility to vote before counting their ballot and,

  • Voters have an opportunity to present required documentation to verify their eligibility to vote such as identification required by the state where they are voting or proof of residency if the voter registered to vote on Election Day.

Currently only Minnesota, Idaho and New Hampshire do not require Provisional Ballots. So do the other states know something we don’t?

Before the 2000 election, many states had no or inconsistent provisions on how to handle ballots where there was a dispute as to a person’s eligibility to vote. Practices for handling ballot disputes and errors, and use and rejection of provisional ballots, varied widely between states. As a result hundreds of thousands, potentially millions, of ballots were not counted in the 2000 election, potentially influencing the outcome of the election and undermining public confidence in the election’s outcome.

In response to this, and many other issues in the 2000 election, Congress passed a law in 2002 (the Help America Vote Act (HAVA)) requiring all states except those with Election Day voter registration or without a voter registration requirement (North Dakota), to meet federal standards and reporting for the use and processing of Provisional ballots.


Since Minnesota has had Election Day Registration since 1974, it already had a system to ensure that voters are not disenfranchised due to administrative errors or lack of demonstration of eligibility to vote, there was not required to have Provisional Ballots.


So why are there recurring pushes in the Legislature to establish provisional ballots in Minnesota?

  • Provisional Ballots can be used to provide time for additional verification of a voter’s eligibility to vote. As noted previously, Election Day registration allows ballots to be counted before the voter’s eligibility to vote as determined by Election Judges at the polling place is confirmed by county election officials.

  • As noted last month, some number of people registered to vote on Election Day are ultimately found to be ineligible to vote. A 2018 Legislative Audit found that less than 1 in 18,000 people who registered to vote on Election Day in 2016 were criminally liable for registering when ineligible.

  • Those wanting absolute assurance that no ineligible voters register may want Provisional Ballots to provide the higher level of certainty.

Why should we continue to not require Provisional Ballots?

  • Provisional Ballots are not required by state or federal law to ensure that all voters have an opportunity to have their votes be counted.

  • Current processes for Election Day Registration are highly effective at preventing ineligible people from voting.

  • Many people do not return to county election offices after Election Day to present required documentation.

  • Provisional Ballots add significant work for Election Judges at the polling place, increasing election worker staffing and slowing in person voting.

  • Provisional Ballots add significant work load to local (county) election officials to complete review of all Election Day Registrations with a few days of Election Day to ensure all votes are counted.

  • In 2020, 259,742 Minnesota voters registered to vote on Election Day (18.8% of in-person voters). Imagine the added cost and effort to create, track, and manually process 260,000 Provisional Ballots on Election Day and in the days after an election to prevent 15 or 20 ineligible ballots out of 3.3 million?

References:

1. “Provisional Ballots”, July 22, 2021. National Conference of State Legislatures (NCSL), Retrieved as Provisional Ballots (ncsl.org)

2. “To Assure Pride and Confidence in the Electoral Process”. August 2001. The National Commission on Federal Election Reform Retrieved as NCFER_2001.pdf (verifiedvoting.org)

3. Help America Vote Act of 2002, Public Law 107–25. Oct. 29, 2002. Retrieved as PLAW-107publ252.pdf (congress.gov)

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