Civil Rights & Constitutional Law
Celebrating voting rights through the Vote Early, Vote Big! program
October 12, 2008
It's Election Day (Tuesday, November 8, 2016). You're excited and ready to go vote for your favorite candidates. And you live in Ohio―your vote couldn't be more important! It may decide the fate of all humanity.
But you get to the polls and the poll-worker looks up your name in the poll-book and then tells you that you have to vote by something you've never heard of called a "provisional ballot." You're not sure why; you thought you did everything right when you registered to vote.
The poll-worker is saying something about how your name does not appear on the poll list, or that your name does appear but you didn't bring an accepted form of identification, or that your name appears but it says next to your name that you requested an absentee ballot (and if this is your situation, maybe you forgot about it and never sent it in)... The poll-worker sends you to another table, where someone hands you a form and says that once you fill this out, you can get a ballot.
What is this all about?
A "provisional ballot" is one a voter may be asked to fill out because the board of elections has some question about the voter's eligibility to cast a regular ballot―for reasons such as those mentioned above. While the content of a provisional ballot is no different from a regular ballot (e.g., has the same issues and candidates' names on it), the difference is that a regular ballot is counted automatically whereas with a provisional ballot, the board must first determine the voter's eligibility before it will count the ballot. Provisional ballots are not counted until 11 days after the election.
Although casting a provisional ballot is better than not casting a ballot at all, we highly recommend you do everything you can to avoid having to cast one. Here's why.
Let's go back to Election Day 2016. As you are directed to the separate table to get a provisional ballot, your head is swimming with confusion. By this point, you're also irritated and maybe late for work. You fill out the form as quickly as you can, don't double-check it, and toss it back to the poll-worker.
The information seems easy enough―your printed name, current address, birthdate, identification information (driver's license number or last four digits of your social security number or the fact that you showed the pollworker your ID), and signature.
You think you can't make a mistake on this, or that even if you do, it won't matter.
But you'd be wrong. Although the form does sound easy enough, here's the thing: under current Ohio law, if you make even the slightest mistake or omission on the form, the board of elections has to throw out your ballot.
In the 2014 and 2015 general elections, elections boards across Ohio threw out over a thousand provisional ballots for minor errors or omissions.
Here are a few examples of minor mistakes for which eligible voters' ballots have been thrown out in the past, and that could cause your provisional ballot to be thrown out, too:
You might be asking yourself: if the board of elections has my information in its system, and can tell that I am who I say I am―especially since they can match my signature―why do they have to throw out my ballot? Shouldn't they be more interested in counting every eligible voter's ballot than in playing "gotcha" based on a clerical mistake?
Well, we agree with you. And we represent plaintiffs who have sued Ohio Secretary of State Jon Husted and the Ohio Attorney General over this very issue. We don't believe any voter's ballot should be thrown out for minor errors or omissions if the board of elections can determine someone's eligibility. We believing throwing out such ballots violates the U.S. Constitution and the Voting Rights Act.
Recently, a 3-judge panel of the Sixth Circuit Court of Appeals weighed in on the matter. Fortunately, the panel majority agreed that the State of Ohio has no business disenfranchising eligible voters who make mistakes in the birthdate or address fields on their absentee form (the one used during early-in-person voting or vote-by-mail). Unfortunately, they said it's perfectly fine to disenfranchise provisional voters based on the same minor mistakes.
The fact that the panel majority limited its ruling to the birthdate and address fields of the absentee forms makes no sense to us, and we're continuing to fight for Ohio voters. We asked the entire Sixth Circuit to look at our clients' claims, which they refused to do, and now we're considering pressing on to the U.S. Supreme Court.
In the meantime, we recommend that you do what you can to avoid having to cast a provisional ballot and, if you do have to cast one, do what you can to make sure it is counted:
Voting is the most fundamental way we participate in our democracy. Make sure your vote counts!