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Contact: Kate Shepherd
Election Assistance Commission Hearing
September 30, 2004
Chairman Soaries and members of the Election Assistance Commission, I would like to thank you for conducting this hearing regarding provisional voting. Your role in providing guidance on this issue and the countless others we face as state and local election administrators has already proven to be an invaluable resource to those of us charged with constitutional and statutory duties to impartially promote and conduct elections.
In Indiana, we had embraced the idea of provisional voting shortly after the 2000 election, when it was discussed by the Bipartisan Election Task Force on Election Integrity, a forum created and chaired by my predecessor, Sue Anne Gilroy. At the time, I served the state as the Indiana Deputy Secretary of State and Mrs. Gilroy's Chief of Staff. Additionally, I had served as general counsel to the state's Recount Commission, and having the relatively rare experience as a recount attorney, I was asked to participate in the Florida recount in seven southwest Florida counties. Upon taking office in January 2003, I was pleased that the Help America Vote Act had become law and that provisional voting would now be the law of the land. Assuming that other panelists will have adequately explained the concept of provisional voting as well as the legislative history behind it (for example, see the statement of Senator Chris Bond, dated September 30, 2004), I will dispense with another recitation of that here, and instead focus on provisional voting's use, affect, and challenges in the great state of Indiana.
I see a tremendous accessibility tool in provisional voting, knowing that it can be used as a "last resort" when a qualified voter would have otherwise been turned away from the polling place, her civic duty unfulfilled. Due to the strict and sometimes unreasonable mandates of the National Voter Registration Act, keeping an accurate list of voters has become an even more daunting task and clerical mistakes occur through no fault of the voter. In these cases, that voter's intentions should be counted and provisional voting offers us this chance, as election administrators, to get it right, maintain voter confidence, and we hope foster a positive affect on voter turnout--- one of our most important goals.
At the same time, provisional voting can have a positive effect on system accountability. It can act to reduce the ability of unscrupulous individuals, political parties, activist groups or campaigns to dilute the voice of honest voters by rushing polling places with unqualified voters and people intending to vote multiple times. In 2002, the Wall Street Journal outlined this illegal practice in Indiana by imbedding one of its columnists in a Congressional campaign where that columnist detailed, through his eyewitness account, voter intimidation in reverse -- that is poll worker intimidation - by groups of persons (being driven around in vehicles hosted by the campaign) demanding to vote and proceeding to vote without care or regard as to whether they were legally qualified.
HAVA correctly left administration of the provisional voting concept to the states. In the remaining time I have, I would like to detail Indiana's process with the hope that you would select it as a model practice for fairly implementing provisional voting in a way that protects voters' rights and fosters system accountability.
Indiana Code 3-11.7-5-2 sets forth the key requirement concerning precinct based provisional voting in Indiana. Each county election board ultimately decides whether a provisional ballot is valid, and therefore whether the provisional ballot should be counted. The county election board can be assisted by bipartisan teams in sorting provisional ballots and in helping make "easy" calls where the facts about a provisional ballot are not in dispute.
When the county election board examines a provisional ballot, which is still sealed inside its secrecy envelope to protect the privacy of the voter's choices, the board asks three questions:
The county election board has to find that the answer to each question (1), (2), and (3, if applicable) is yes. If the answer is yes, the provisional ballot is declared valid and can be removed from the secrecy envelope and processed.
One of the strongest arguments for having provisional ballots cast at the precinct where the voter lives comes from one of the most successful community efforts in modern times: the neighborhood watch programs.
The neighbors who participate in these programs are the best equipped and have the best knowledge to sort out innocent behavior from suspicious activity. They know the difference between people simply walking along their street and an unfamiliar car circling the playground.
When many of these same community activists serve as poll workers, they may know that a person whose name does not appear on the poll list is their neighbor, or will know if a residence address given by a person is actually a demolished building. They can better communicate the questions they have to the county election officials to help eliminate the need for the voter to cast a provisional ballot in the first place. In Indiana, we firmly believe that the provisional voting process is one of last resort-to be used only when all other methods of proceeding directly to the voting booth have been exhausted. So far, we have seen its use limited to the rare exception and not used as "normal" way of voting.
Everyone acknowledges the desperate need to recruit poll workers. We also know that both poll workers and voters are discouraged by long lines and delays at the polls. Discouraged poll workers may decline to work again. Discouraged voters may decide that the lines are too long and may walk away without voting. We need to recognize that while of course voting is important and the integrity of the election process is critical, it is also true that for many non-activist voters outside this room, casting a ballot is only one of several important or critical things that they must get done on Election Day.
For example, a parent picking up a child after school, a worker hurrying to her job, or a minister on the way to visit a patient at a hospital also have other important things to do.
For that reason, we want to make every voter's experience within the polls as pleasant and as efficient as possible. Some problems at the polls are of course unavoidable. Some voters have more ability (and perhaps more patience) than others to wait while the poll workers try to solve these problems.
But every voter who would appear at a polling place other than at the precinct where he lives to cast a provisional ballot there would be requiring another voter to wait. The voters in line would have to wait while the poll workers look unsuccessfully for the name on the poll list; to wait while the poll workers process the forms the voter fills out to cast a provisional ballot; to wait while the provisional voter uses a booth to cast her ballot; and to wait while the poll workers provide the provisional voter with the information required by the Help America Vote Act about the provisional ballot process. Then, there are the logistical problems associated with the 'vote anywhere' approach. For example, administrators could not possibly know how many provisional ballots to print, and of what kind, for a particular polling place, which would lead to ballot shortages, and yet again, turning potential voters away-the very thing provisional voting was designed to stop!
Yes, every vote is important. But no voter is more important than any other voter. We should encourage both equal treatment and equal responsibility for all voters.
Prohibiting precinct based provisional voting also sends the wrong message about the importance of voting for all of the other offices on the ballot. While important decisions are made in Washington, and in state capitals, some of the decisions that have the most obvious and compelling effects in people's daily lives are made down the street at city hall or in the county government building.
The decisions about whether to rezone to allow for a new business, to change a speed limit in a neighborhood, or to raise school tax levies are often made by these local elected officials.
It is also true that elections to these local offices are sometimes decided by one or two votes, or even have ties. In one Indiana county earlier this year, a nonpartisan election for school board resulted in a tie vote between a challenger and the incumbent.
How ironic it would have been if a voter in that county had chosen to stop by some other polling place on the way home from work to vote for the "more important" statewide offices, such as U.S. Senator or Governor, by way of a provisional ballot since it was more convenient to do so, only to discover the day after the election that she could have decided the school board election by her own vote if only she had appeared at the precinct where she lived. Our republic needs and deserves a system where elected offices are treated in a uniform fashion when it comes to the selection of the officeholder.
(NOTE: In Frankton-Lapel school corporation in Madison County, the local judge broke the tie in favor of the incumbent).
As we have been shown in other instances, history is a stubborn teacher. If we fail to remember our lessons, she will teach them to us again and again.
We have been taught the lesson in the past that to protect the integrity of the election process, it is important as a general principal to have voters cast their votes in the precincts where they live. Let me take a moment to tell you about the lesson that we were taught in Indiana.
There was once a close presidential election. The Democratic Party's candidate won the popular vote that year but lost the Electoral College vote to the Republican Party nominee. There were allegations both before and after Election Day of fraud in a key state that both parties had fought hard to carry.
The year was not 2000; the year was 1888. The state was not Florida; the state was Indiana. The candidates were not Bush and Gore; they were Cleveland and Harrison.
In Indiana, there was evidence that so-called "floaters" were being hired to go from one precinct to another on Election Day to cast votes for the most important race on the ballot: President of the United States. In the absence of an effective voter registration system, these floaters may have provided the margin of victory in a presidential campaign. No one knows for sure.
And that is one risk inherent in prohibiting precinct based provisional balloting. Yes, if modern-day floaters appeared at several polling places on Election Day, the law requires that these voters be given provisional ballots, whose validity can be determined later.
We also know from our experience in 2000 that the public's patience in waiting for election results can wear thin quickly and that the credibility of both the media and the entire election administration process can be damaged by prolonged doubt about which candidate has won an election.
A flotilla of modern-day "floaters" could have that effect in a key state in a national race or in a statewide race for U.S. Senator or Governor. Even if an effort to improperly sway the election results through misuse of provisional voting fails, there will be time required to sort out genuine from false provisional ballots. Once again, the general public will wait while the ballot battles are fought before county election boards or before the courts.
Just like problems at the polling place, some election contests, disputes, and recounts are inevitable. There will always be ill-motivated persons who attempt to win an election by any means, fair or foul. However, let's not have to learn the lesson about "floaters" again.
The aftermath of the 1888 election in Indiana was much like that of 2000. There was a bipartisan effort, led by the Governor, a Democrat, and the Governor-elect, a Republican, to enact laws that according to one historian "made Indiana a pioneer in election reform." Other states followed Indiana's lead in providing for secret, government-printed ballots for all voters, and for that ballot to be given to each voter at the voter's polling place.
The same historian (Walsh, Centennial History of the General Assembly, p. 228-229) wrote "the immediate result" of these reforms "was restoration of public confidence in the integrity of Indiana's election process."
I contend that the spirit of HAVA, as enacted in 2002 with bipartisan support in Congress and by the President, can have the same effect in restoring public confidence in the elections process. For this reason, my prayer is that you consider the approach taken in Indiana and recommend it as the best practice for the nation.