What Are the Provisional Ballot Laws by State?
A voter casts a provisional ballot when they are unable to prove eligibility to vote while at their polling place on election day. Provisional ballots are meant to make sure that voters are not excluded from the voting process because of an administrative error or easily corrected oversight. The idea behind provisional ballots is to provide a mechanism for voters whose eligibility to vote is uncertain.
When Might You Need a Provisional Ballot?
There can be a number of reasons why you might need a provisional ballot. Your name might not be on the voter rolls, or you might not have the required identification, or you might have tried to vote in the wrong precinct.
Federal law requires that states provide for a provisional balloting process, but some states such as Idaho, Minnesota, New Hampshire, Wisconsin, and Wyoming have longstanding same-day voter registration accommodations that make providing for provisional ballots unnecessary. In those states, you vote with a regular ballot.
When Did Provisional Ballots Begin?
Most political parties have long stationed observers at polling places to make sure that everyone voting is eligible to do so. Before provisional ballots, some states allowed voters to cast “challenge ballots" if the polling places deemed them ineligible. The local canvassing boards examined those ballots and decided whether the votes should count.
The Help America Vote Act (HAVA) of 2002 brought consistency to the use of challenged ballots. HAVA requires all states and localities to upgrade parts of their election procedures in their election districts, including their voting systems, registration processes, and how they train their poll workers.
As with provisional balloting, the details of how those things are put in place are left up to each state. But HAVA is meant to make the many different state rules regarding challenged ballots more consistent with each other.
How Do Provisional Ballots Work?
Often, a provisional ballot is submitted in a sealed envelope so it can be processed confidentially. Once the ballot is cast, it's kept separate from other ballots and investigated by local election officials.
Election officials must confirm a voter's identity and eligibility to vote, and they might ask the voter to verify either of those things or provide additional information, such as a utility bill, for verification.
If the voter's identity or eligibility can be confirmed by examining voter rolls, all or part of their vote will be counted. If those things cannot be confirmed, the ballot is thrown out. If they can, their vote will count toward the election results.
In some states, a voter will be asked to return to an election office after Election Day to provide the proper ID, such as a driver’s license, or some other necessary data. This usually isn't a big problem since, in most cases, provisional ballots are requested because the voter didn't have a proper ID when he or she tried to vote.
In some states, voters have several days after an election to provide the needed ID. Those states include Alabama, Arizona, Georgia, Ohio, Tennessee, Virginia, and Wisconsin.
How Do You Request a Provisional Ballot?
All it should take is asking for one at the polling place. The election judge at the polling place is required by law to give you a registration application, with a receipt. Again, ask for a receipt if one isn't offered — the receipt provides information that might be needed to follow up and make sure your vote is counted. Many states have websites or phone numbers that can help you confirm that your vote was counted.
Section 302 of HAVA says that if the voter’s name does not appear on the official list of eligible voters for a given polling place — or if an election official declares that you are not eligible to vote, contrary to a written affirmation that you are ― you have an automatic right to cast a provisional ballot.
According to regulations published by the Federal Judicial Center, election officials are required to follow a five-step procedure under HAVA's provisional voting provisions:
Notification: Someone whose name does not appear on the voter registration list must be notified that they may cast a provisional ballot.
Affirmation: The voter must show that they are registered in the jurisdiction and eligible to vote in the election.
Transmittal: Poll workers must send the provisional ballot or the data provided in the affirmation to the proper election official.
Counting: If the election official finds that you're eligible to vote, your provisional ballot should be counted.
Confirmation: Election officials are required to have a system in place that lets provisional voters find out whether or not their ballots were counted — and, if not, why not.
Are Provisional Ballots Counted?
That depends on the state or locality, and on the circumstances of each provisional ballot. Some states dictate who may or must be present when provisional ballots are counted; others require that provisional ballots be put in the ballot box as soon as possible.
Usually, the majority of provisional ballots are counted. As we'll see later, provisional ballot rejection rates vary greatly from state to state. Some states count almost all provisional ballots, while others reject more than half.
What Are Provisional Ballot Laws by State?
States are allowed to define the rules of their own provisional balloting process, which means the process can vary greatly from one state to another. Those states with their own process count provisional ballots, but what's needed to make that happen can range from simple to arduous.
Below are examples of what some states require in order to have a provisional ballot counted:
Alaska: Voter was registered to vote in the last four calendar years, signs a statement to that effect, and has that statement verified.
Connecticut: A provisional ballot can be rejected automatically if it's cast in a precinct in which the voter does not live.
Florida: A provisional ballot will be rejected if the voter is not registered or entitled to vote in that particular precinct.
New York: A provisional ballot is accepted if research at the county board supports the claim of the voter’s eligibility that the voter makes in their oath on the ballot envelope.
Oklahoma: Requires an affidavit whose relevant data (address, Social Security number, etc.) matches that in the state's voter registration database.
South Dakota: Counted only if documentation can be located after Election Day proving that the person was properly registered to vote in that precinct.
Tennessee: A valid ID is required within two days after the election in order for a provisional ballot to be counted.
Texas: If election officials cannot verify the voter's registration or if the voter doesn't have a valid ID, Texas requires an affidavit that states why the voter is qualified to vote.
Vermont: A provisional ballot will be counted for someone who is not on the voter rolls, so long as they submit an affidavit swearing to their submission of a provisional application prior to the deadline.
Virginia: Provisional voters without photo ID have until noon on the Friday following the election to deliver a copy of the identification to the local electoral board, or else their vote won't be counted.
Wisconsin: Provisional ballots are issued to citizens who aren't able to bring IDs to the polling place; first-time voters unable to prove residence; and registered voters unable or unwilling to provide an ID.
As you can see, different states put emphasis on different factors when deciding whether to count provisional ballots.
Are Some States Stricter About Provisional Balloting?
Some states are far stricter than others in how closely they scrutinize provisional ballots. In fact, many have charged that allowing states to write their own rules regarding provisional ballots encourages those in power to take steps to remove voting rights from residents they think might vote against them.
Among other things, states vary in how provisional ballots cast in the wrong precinct are handled. Some throw them out automatically, while others might count portions of such ballots, such as votes for federal offices as opposed to state or local offices.
In contrast to such relatively lenient states as Alaska, Arizona has a long list of reasons for how a provisional ballot can be rejected. A ballot can be thrown out in Arizona for more than a dozen different infractions, ranging from an upheld voter challenge to a signature that doesn't match.
In 2017, Georgia passed an “exact match" law that allowed officials to suspend or even cancel voter registrations if the information on a voter's ID varied at all from the data on the voter's registration form. That means something as minor as the addition of a hyphen, or the use of “Beth" instead of “Elizabeth," can put up a big roadblock for voters.
Can Provisional Ballots Change an Election?
They don't often, but they certainly can.
The 2004 United States presidential election was the first held according to the requirements of the Help America Vote Act. Across the country, almost 2 million provisional ballots were cast, and 676,000 were not counted because of the restrictions on provisional ballots in their originating states.
Those votes might not have turned the tide against incumbent candidate George W. Bush. But considering how close the previous presidential election was — 50.46 million to 50.99 million — it's easy to see that fairly counted provisional ballots can make a difference. That's especially true in county and local elections that are sometimes decided by just a handful of votes.
Find Out More
Your state almost certainly has a web page with frequently asked questions and other data about provisional voting. Just search under the phrase "provisional ballot" followed by the name of the state. The Washington, D.C., watchdog group Common Cause urges voters who encounter any problems on Election Day to call 1-866-OUR-VOTE. If you have questions about provisional ballot applications or believe you may need an absentee ballot, you can contact your state’s secretary of state or state board of elections and confirm your registration status and other voter information.
If you need a court order to cast a ballot in a primary election or general election, consider consulting with an experienced civil rights lawyer in your area. They can advise you about the state law that applies to you.