Provisional ballots are at the heart of battle
Mix-ups could cloud close state contest

By FRITZ WENZEL
Toledo BLADE   24 October 2004

Ohioans heading to polls on Election Day may have at the top of their minds the Titanic struggle between President Bush and Democratic challenger John Kerry, but another battle is brewing that may be as important - how they will vote.

Ohio Secretary of State Kenneth Blackwell and federal Judge James Carr of Toledo have been locked in a fight over details about how to implement a new federal law designed to make voting easier.

But a ruling yesterday by the U.S. 6th Circuit Court of Appeals in Cincinnati changed all that.

The federal appellate court ruled that Ohioans voting on provisional ballots outside their home precincts won't have their votes counted, something Mr. Blackwell has pushed for, but until yesterday was blocked by Judge Carr.

Provisional ballots, called for by Congress in its landmark 2002 Help America Vote Act, are to be given to voters who show up to vote but whose names are not on voter rolls.

Judge Carr ruled on Oct. 14 that if the voter is registered to vote in the county he is voting in it doesn't matter if he votes at the wrong polling place in the county, that his vote would be counted.

Mr. Blackwell objected, saying such a decision would lead to election confusion and possible fraud. He appealed the judge's ruling to the appeal's court in Cincinnati.

The dispute began when a lawsuit was filed by the Sandusky County and Ohio Democratic parties against Mr. Blackwell when he issued a directive to Ohio poll workers not to count provisional ballots cast at the wrong precincts on Nov. 2.

The matter has been the subject of other rulings by federal judges elsewhere. A federal judge in Michigan agreed with Judge Carr, while a federal judge in Florida disagreed. The 6th Circuit Court of Appeals has federal jurisdiction over Ohio, Michigan, Kentucky, and Tennessee.

If registered voters come to the correct polling location on Election Day and for some reason their names are not the poll list of those eligible to vote, they will be given, or may request, a provisional ballot.

They will be required to sign an affidavit declaring their name, their date of birth, and their address. They must also declare that the provisional ballot they seek to cast is the only ballot they are voting. They will also be required to sign an envelope into which their ballot will be placed. Later, elections officials will compare that signature to the signature on file with the county board of elections to verify that the voter is properly registered.

The new federal election law also requires counties to keep track of the provisional votes so that if a provisional voter is interested in checking later on, elections officials can tell the voter whether their provisional ballot was counted or not. If the ballot is not counted, the elections board must give the voter a reason for the ballot disqualification.

Some voters may be forced to cast provisional ballots because they are challenged on Election Day by partisans stationed at polling places throughout the state. Both Democrats and Republicans have recruited hundreds of volunteers in Lucas County alone to staff the county's 212 voting locations to watch for voters they deem questionable, and to challenge their right to vote.

Only poll workers are allowed to determine the qualifications of a voter who is challenged at the polling place, but even if they deem a person is not eligible to vote a normal ballot, that person will be offered the opportunity to vote using a provisional ballot.

Bernadette Noe, chairman of the Lucas County elections board, said no voter will be turned away from a polling place without a chance to cast a ballot.

Election officials will decide later whether that person was qualified to cast a vote, and whether the vote should be counted. And to add another level of uncertainty, especially if the Ohio vote for president is as close as some predict, state law dictates that provisional ballots shall not be counted until 10 days after the general election.

Paula Hicks-Hudson, director of the Lucas County board of elections, said her office is working to organize last-minute training classes to inform poll workers about the court's ruling regarding provisional ballots, and how to handle them properly. In addition, she said, every precinct will receive written instructions to which they can refer during Election Day.

As an extra precaution, the roving troubleshooters who travel the county on Nov. 2 solving voting problems will be briefed on how to help precinct workers address the issue.

"We are preparing as best we can, in view of the state of flux in which the provisional voter question remains," Ms. Hicks-Hudson said. "We are using the regular ballot [for provisional voting], and are using the regular process that we follow for provisional balloting."