Thousands of Provisional Ballots Went Uncounted in Chicago

Dec. 2, 2008 – Jill Kahn woke up at 5:30 a.m. on Election Day to cast her ballot. Among the first to arrive at her precinct in the Ukrainian Village neighborhood, Kahn, 31, waited 30 minutes to vote, only to find her name missing from the official registration list.

Two years ago, she got married and changed her name; Kahn, who is an interior decorator, was still listed under her maiden name despite re-registering at the Illinois Department of Motor Vehicles last year. She said she also received a voter card in the mail at her new address, suggesting her registration was in order.

Used to the frustrations associated with changing her name, Kahn was not surprised to find her name missing from the list.

"They made me sign a piece of paper saying who I was and where I live, then they gave me a ballot. So I wasn't worried," she said.

But that doesn't mean her vote counted. Kahn is one of 21,826 Chicagoans who cast provisional ballots in November, and hers was likely one of the 13,287 – about 61 percent — that didn't get counted. Most of those were cast in the wrong precinct or by voters not registered by Oct. 7, the deadline for the 2008 general election.

Voters like Kahn, who can't be identified by election judges at their precincts, are allowed to vote on the spot but are required to provide further proof to the Chicago Board of Election Commissioners within two days for their ballot to count.

"They never told me I had to do anything else," Kahn said on Election Day. "I handed in my ballot and thought that was it. Now I don't know if I'll make it downtown in time."

Provisional voting was mandated by the federal government under the Help America Vote Act of 2002 in response to widespread accusations of election fraud during the 2000 general election.

Illinois first implemented provisional voting in the 2004 primary. Many experts agree that provisional voting remains a better alternative to the previous system, under which voters whose names were missing from the registration list were denied a vote.

But the system is far from perfect. A majority of Chicago's provisional ballots are rejected each election, largely because they are cast in the wrong precinct. In November 2004, about 61 percent of provisional ballots cast were counted, according to the Chicago Board of Election Commissioners. While some experts blame inadequate training of election workers, others say it is the result of uncooperative or unprepared voters.

The percentage of accepted provisional votes in more recent elections is even lower. During the February 2008 primary, 7,426 Chicagoans cast provisional ballots, of which about 78 percent were rejected.

A provisional ballot is counted if the elections board determines that the voter was a legal, registered voter in the precinct in which the ballot was cast.

In some cases, mistakes made by the elections board on the registration form, such as inverting letters or numbers, can be determined by the voter's signed affidavit and the vote will count without further action.

More often, however, voters must deliver to the board — in person or by fax – proof of identification, residency and registration. This year the deadline to do so was the close of business Thursday, Nov. 6. Jim Allen, spokesman for the Chicago Board of Election Commissioners said many provisional voters fail to follow through with that requirement.

While provisional voting offers a much-needed failsafe against voter disenfranchisement, some experts say states should work to reduce the need for provisional voting by improving their registration system. 

"Improving the registration process — both by easing registration and by increasing the accuracy of voter registration lists — is one way that states can reduce their reliance on provisional ballots," according to a 2007 report by Election Law @ Moritz, a watchdog program through the Moritz College of Law at the Ohio State University.

Provisional ballots rarely affect the overall outcome of an election, though they can tip the balance in a close race. But election lawyer and former Cook County election fraud prosecutor Richard Means said counting them is crucial to the democratic process.

"There are places in the U.S. where election officials see that none of the races are close and don't bother to do the laborious task of checking all the provisional votes," he said. "That is a mistake and shouldn't happen and is against all the laws."

Means said Chicago election officials are among the most reliable in their handling of provisional ballots, but the city is not immune to problems.

The most common, he said, is that voters arrive at the wrong polling place and, instead of being directed by election judges to the correct location, they are handed a provisional ballot.

Means said he believes better training and supervision of election workers would help reduce errors.

According to a report by the U.S. Government Accountability Office, poll workers in an estimated 12 percent of voting jurisdictions nationwide failed to follow procedure for provisional voting in 2004.

Allen admits that for provisional voting to be successful, the judges need better training. For the last five years, election judge training has focused more on how to operate new equipment, he said.

The board plans to focus more on provisional voting and other complicated pieces of the Illinois Election Code.

Under Illinois law, election judges must receive four mandatory hours of training within six months of every election, for which they get paid $50.

"It's admittedly a complex set of laws for election judges to digest," said Allen. "They have an awesome responsibility."

But Allen said many "stubborn" voters refuse to cooperate when election judges redirect them to the correct precinct. Voters who insist on voting in the wrong location must be allowed to do so and informed their ballot will not be counted.

Election Judge Cheryl Rubio said she didn't have any trouble with provisional voters.

"There's not that many of them, anyway," she said.

Means said despite its flaws, the law providing for provisional voting is a good one.

"It really does save voters who previously would have been turned away from the polling places and not allowed to vote in cases where the paperwork went wrong," he said.

For voters like Kahn, who find themselves casting provisional ballots on Election Day, the most important way to make sure their votes will count is to know the law and follow through.

Kahn never delivered identification to the board or followed up on her vote, and still does not know if it counted, which she said only bothered her a little.

"Barack Obama won," she said with a shrug. "So I guess it really doesn't matter."