Uncertain Insurance: The Ambiguities and Complexities of Provisional Voting

Abstract

This chapter in "Voting in America: American Voting Systems in Flux: Debacles, Dangers and Brave New Designs," a book on recent changes in U.S. elections discusses the development of provisional voting since the enactment of the Help America Vote Act of 2002 (HAVA). The chapter addresses interpretative uncertainties created by HAVA's intentionally ambiguous compromise language, as well as the failure of state legislatures to clarify the gaps left open by HAVA. The chapter looks at the wide variation in provisional voting practices among states that these gaps have fostered. The chapter also considers the extensive variation that occurs in provisional voting among counties within each state, a problem that potentially could give rise to a claim of unconstitutionality under the Equal Protection principle of Bush v. Gore. The chapter concludes by urging states to provide more specificity in their provisional voting laws, particularly concerning the rules and procedures for resolving any disputes that may rise over the counting of provisional ballots in an election where they will be outcome-determinative.

Keywords: registration, identification