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Provisional ballots are used in general elections when there is a question about a voter's eligibility at a polling station. Poll workers allow the person to vote with a provisional ballot until the problem is sorted out, and if the person is an eligible voter, then the ballot is counted.
PolitiFact Ohio recently checked -- and rated as True -- the claim that Ohio has one of the highest provisional ballot rates in the country, and that many of those ballots go uncounted.
State Rep. Kathleen Clyde of Kent raised the issue in discussion about House Bill 194, the controversial overhaul of Ohio election laws that was passed last spring but will go on the ballot in November as a referendum issue.
Clyde pointed to numbers in the Election Day Survey Report of the U.S. Election Assistance Commission showing that the biggest reason for provisional balloting in Ohio is change of address.
But, she added, the problem of provisional ballots and uncounted votes is worsened by Ohio's "wrong precinct" rules.
"Wrong precinct rules exacerbate our provisional ballot problems," she said in an email. "HB 194 does nothing to solve the wrong-precinct problem."
Rather, she said, the law makes it worse by eliminating the requirement that poll workers must direct a voter to their correct precinct."
PolitiFact Ohio can't fact-check the future, so we won't rate the question of whether HB 194 will worsen provisional ballot problems.
But we can look at the rules and at HB 194.
Voting in the wrong precinct is the biggest reason, after change of address, for provisional ballots. Provisional ballots can be cast in the wrong precinct because poll workers accidentally send voters to the wrong table in a polling place with multiple precincts, or to the wrong polling place, which can follow an error such as a poll worker misreading a street guide.
Reports from the U.S. Election Assistance Commission show that relatively few states reject significant numbers of provisional ballots because they were cast in the wrong precinct. Only New York and Arizona rejected more wrong precinct ballots than Ohio in 2008, according to the EAC, and those three states accounted for the majority of the nation's total.
In 2010, no state left more provisional ballots uncounted than Ohio.
Rejected wrong-precinct ballots represent registered voters whose ballots were thrown out because they went to the wrong table or location. Ohio had 14,227 of them in 2008, according to the EAC report. The number is slightly larger, 14,335, on the website of Ohio Secretary of State Jon Husted.
House Bill 3, the Ohio elections law enacted in 2006, expanded provisional voting and restricted the counting of provisional ballots. It required that a provisional ballot be cast in the correct jurisdiction to count, and specifically defined jurisdiction as precinct. Election boards previously could count the races for a voter's correct precinct on a misdirected ballot.
HB 194 "permits, instead of requires, an election official to direct a voter who is in the wrong precinct to the voter's correct precinct," according to the Ohio Legislative Service Commission. It says that it is the duty of the individual voter to ensure that a ballot is cast in the correct precinct.
We note that we’re not taking a position on whether it’s good policy to leave that duty with the individual voter. Suffice to say that Clyde’s position is that more should be done.
The issue went to federal court recently because of a race for juvenile court judge in Hamilton County that has been unresolved since Election Night 2010 because of provisional ballots. The two candidates in that race were separated by 23 votes in the election board's tally, but 849 provisional ballots were not counted due to error. Hundreds of those votes should be counted, U.S. District Judge Susan Dlott ruled this month in a 93-page decision.
In some cases, Dlott noted, voters showed up at the right polling place, but mistakenly voted at the wrong precinct table, an error known as "right church, wrong pew."
Testimony showed that poll workers mistakenly directed some voters to the wrong table, and that some poll workers did not recognize the significance of voting at the correct precinct table.
Currently under Ohio's precinct-based voting, Dlott wrote, votes cast in the wrong precinct are not to be "counted under any circumstance, even when the ballot is miscast due to poll worker error." She said that policy "is fundamentally unfair and abrogates the 14th Amendment’s guarantee of due process of law."
The ruling reinforces Clyde’s assertion that wrong-precinct rules worsen the problems with provisional voting.
Clyde said that "wrong precinct rules exacerbate our provisional ballot problems," a reference to the high rate of provisional voting in the state. Data from the U.S. Election Assistance Commission shows that wrong precinct voting is the No. 2 reason for provisional voting. In Ohio, votes cast in the wrong precinct are not counted. There were more than 14,000 such ballots in the 2008 election.
We’re not rating whether HB 194 will worsen those problems. But that the legislation "permits, instead of requires, an election official to direct a voter who is in the wrong precinct to the voter's correct precinct," shows it’s not an attempt to aggressively address the issue.
The duty remains on the individual voter to ensure that a ballot is cast in the correct precinct.
On the Truth-O-Meter, Clyde's statement rates True.
Email exchange with State Rep. Kathleen Clyde, Feb. 8, 14 and 15, 2012
PolitiFact Ohio, "Kathleen Clyde says Ohio among the leaders for provisional ballots in the nation," Feb. 7, 2012
U.S. Election Assistance Commission, "2008 Election Administration and Voting Survey and Data Sets," November 2009
U.S. Election Assistance Commission, "2010 Election Administration and Voting Survey," December 2011
Pew Center on the States, "Provisional Ballots in the 2008 Ohio General Election," authored by R. Michael Alvarez, California Institute of Technology, and Thad E. Hall, University of Utah
Ohio 126th General Assembly, House Bill 3
Legislative Service Commission, HB 3 Analysis
Ohio Secretary of State, Elections & Voting
Ohio Secretary of State, Provisional Voting
Ohio Legislative Service Commission, HB 194 Analysis
Cincinnati Enquirer, "How to make every vote count," Feb. 13, 2012
U.S. District Court, Hunter v. Hamilton County Board of Elections, judgment and order
Cincinnati Enquirer, "Count disputed votes in 2010 race, judge says," Feb. 8, 2012
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