Americans may find it surprising to learn that many eligible citizens in the United States are denied the right to cast ballots and have them counted on Election Day. The sad reality is that many voters are turned away from polls because their names do not appear on a list of registered voters, for a host of different reasons that may or may not be the responsibility of the individual voter.
To correct this problem, Congress enacted "fail-safe" provisional voting requirements in the Help America Vote Act of 2002 (HAVA), 42 U.S.C. S 15301, et seq. Under Section 302 of HAVA, election officials are required to provide provisional ballots to individuals who are not listed on the official list of registered voters but believe themselves to be properly registered and eligible to vote. Once the appropriate election officials determine that the individual is indeed eligible to vote, the ballot is counted. The results of this HAVA mandate have been mixed. In some situations, poll workers have failed to offer provisional ballots to voters at all. In cases where poll workers have actually offered ballots to voters, states have applied such varying methodologies for counting provisional ballots that the "fail-safe" mechanism under HAVA has been frustrated.
This legislative brief outlines the reasons why thousands of provisional ballots have not been counted since the passage of HAVA, and why the use of provisional ballots should be limited. It also provides policy recommendations which, if implemented by all states, would increase the likelihood that a voter's provisional ballot would count.