Michael Peltier: Provisional ballots ... the chads of 2004?

By MICHAEL PELTIER, Tallahassee Correspondent  Naples Daily News
October 25, 2004

TALLAHASSEE — While hanging chads may have become the icon of the 2000 presidential race, voters in 2004 may well be looking at another indelible symbol: the provisional ballot.

Put in place nationwide after the 2000 elections when thousands of Florida voters were turned away from the polls, Florida is one of eight states that will introduce provisional balloting for the first time in a presidential race.

The provisional ballots allow voters whose status is questioned to cast ballots on Election Day. The local canvassing board then double checks voter rolls and determines if the vote counts.

Florida is one of 26 states and the District of Columbia where election laws require that provisional voters cast their ballots in their correct precincts. Democrats, labor unions and the American Civil Liberties Union have argued that voters casting provisional ballots be allowed to do so at any precinct as long as they don't vote in local races.

Critics unsuccessfully challenged the law in both federal and state courts. On Oct. 8, U.S. Circuit Judge Robert Hinkle sided with Hood by throwing out a motion that would have allowed at-large provisional voting.

A week later, the Florida Supreme Court followed suit, ruling against the AFL-CIO and upholding Florida provisional ballot requirements, including that voters casting provisional ballots do so in their correct precinct.

The union had argued that many voters have been displaced by hurricanes and they should be allowed to cast a provisional ballot anywhere in the county they reside.

The court, however, left open the door for post-election challenges. While the law on its face is constitutional, voters incorrectly denied a chance to cast a ballot, were allowed to vote in the wrong place or were erroneously denied a chance to vote would not be prohibited from filing a complaint.

In such a case, the high court would have much more latitude, including fashioning a remedy to rectify any perceived election procedure error. Such was the case four years ago, when the high court set out criteria for a recount, only to have the U.S. Supreme Court overturn that remedy.

"(Voting) for a long time is what separated us from the rest of the world," said Justice Harry Anstead. "The whole foundation of this country is the idea that we grant a franchise to our citizens."

Lawyers for both political parties and several special interest groups are already preparing legal briefs for probable challenges if Florida's race is anywhere close. With 27 electoral votes, Florida leads the list of a dozen swing states including Pennsylvania, Ohio and Minnesota that will prove crucial to either candidate.

While legal eagles sharpen their talons for possible post-election work, some observers worry that a repeat of 2000 could prove devastating to the voting public, who would have endured two elections in which someone else determined their votes.

Lance deHaven-Smith, a political science professor at Florida State University, argues that another round of electoral uncertainty could be fundamentally devastating.

"If you look at American democracy, there is a very weak link between what the voters want and what they get from their government, but the election was always the guarantee that there was a link," deHaven-Smith said in a recent interview with TIME magazine.

"If that fundamental connection is broken the whole thing begins to look like a completely rigged system."