Reply #40: One Vote Makes a Difference

[L. Coyote]

February 23, 2005
CUYAHOGA COUNTY BOARD OF ELECTIONS
Robert T. Bennett, Chairman Sally D. Florkiewicz L. Michael Vu, Director
Edward C. Coaxum, Jr. Loree K. Soggs Gwendolyn Dillingham, Deputy

ONE VOTE MAKES A DIFFERENCE

DIRECTOR L. MICHAEL VU
CUYAHOGA COUNTY BOARD OF ELECTIONS

UNITED STATES ELECTION ASSISTANCE COMMISSION
PROVISIONAL VOTING TESTIMONY

OHIO STATE UNIVERSITY - MORITZ SCHOOL OF LAW

INTRODUCTION
Madame Chair Hillman, Commissioner DeGregorio, Commissioner Martinez, and
Commissioner Soaries welcome to the Buckeye State. Thank you for the opportunity to
participate in the first on-the-road public hearing since the 2004 Presidential Election and
allowing me to be part of a distinguished panel to discuss the topic and importance of
provisional voting, specifically from a local election official’s vantage point.
Having conducted elections in another state, I have realized and learned that Ohio’s
local election officials have a long standing tradition of conducting well-run, well-planned
and professional elections. This is true of the 2004 Presidential Election.
Provisional voting for Ohio election officials is not new. In fact, Ohio had instituted a
form of provisional voting in 1992, which was known as “237’s”, named after the title of the
state bill. In this form of provisional voting, unlisted voters were directed to the Board of
Elections office to cast their ballot. In 1995, the State implemented the provisional
balloting laws as we see today.
In 2004 many election jurisdictions across the nation were implementing provisional
voting laws for the first time. Ohio was ahead of the learning curve in this aspect. So why
did states who had pre-HAVA provisional voting laws, like Ohio, have such a difficult time
handling provisional ballots in the 2004 Presidential Election? To answer this question we
need to explore the chain of events that transpired prior to the election.
As the Director of Cuyahoga County many of our processes, including the absentee
ballot process, the registration process and the provisional voting process were again
tested during the 2004 Election. Although the various election processes had been tested
from previous elections prior to 2004, the 2004 Election, where Ohio was considered “The
Key Battleground State”, presented a whole new set of scrutiny and challenges that had
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never been seen before which came from citizen activists, political parties, interested
organizations and election officials. This was true of the provisional voting process.
THE CUYAHOGA COUNTY EXPERIENCE
To give you a brief background, Cuyahoga County is the 15th largest election
jurisdiction in the country with over 1,011,000 registered voters, Cleveland being the city
more commonly known throughout the country. We have 1,436 voting precincts and 584
polling locations.
In Cuyahoga County 25,309 provisional ballots were cast of which 16,757 were
deemed valid and 8,552 were considered invalid. A 66.3% acceptance rate. In
comparison to the 2000 Presidential Election the number of voters going to the polls in
2004 increased by nearly 100,000 voters, yet the percentage of individuals having to cast
a provisional ballot proportionately decreased.
Before discussing the contributing factors that led to the decrease in the percentage
of voters having to cast a provisional ballot, there were a number of factors that could
easily have contributed to its increase.
Coming into the 2004 Election, Cuyahoga County knew the November Election was
the first presidential election since reapportionment. We knew that there would be a
massive effort to register people to vote from local and national voter registration
organizations. We also knew and anticipated that this would be the largest turnout the
county would realize. Finally, we knew that there would be external variables that would
impact the way the Board of Elections would handle the election.
All four points that I listed were factors in which we took proactive and preemptive
steps to decrease the number of provisional ballots that would be issued and thus
increasing the number of regular ballots that were offered. We sent an Official Voter
Information Guide, which listed each voter’s specific voting location and voting precinct, to
all active registered voters. We developed, a year in advance, an interactive polling
location finder so voters would go to the correct voting location. We worked with local
colleges, went to senior citizen centers, and had a public forum called the “Roadmap to
Election 2004” to address election issues that may arise, including provisional ballots.
Although we had anticipated as many external factors as possible, we were
surprised by a number of directives that were issued. This ultimately created confusion
throughout the State on how provisional ballots were to be issued at the voting locations.
On September 16, 2004 all Ohio Boards of Elections received Secretary of State
Directive 2004-33. Believing that the Directive was in the normal course of conducting the
election, it became apparent that one paragraph seemed contrary to the way provisional
ballots were issued in the past. This paragraph read:
Only after the precinct pollworkers have confirmed that the person is eligible
to vote in that precinct shall the pollworkers issue a provisional ballot to that
person. Under no circumstances shall precinct pollworkers issue a
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provisional ballot to a person whose address is not located in the precinct, or
portion of the precinct, in which the person desires to vote. However, no
provisional ballot will be disallowed because of pollworker error in a split
precinct.
This generated a number of questions and concerns from interested organizations, political
parties, citizen activists and local election officials, including Cuyahoga County.
Cuyahoga County believed that the Directive was contrary to the way provisional
ballots were issued in the past. We believed in the same practice of issuing provisional
ballots as was implemented in previous elections including the 2004 March Presidential
Primary Election. So it came as a surprise that issuing provisional ballots had changed
and pollworkers were directed not to issue any provisional ballot even though there may
have been administrative oversight or that the pollworkers inadvertently did not find the
voter’s name.
In short, this was ultimately decided in Third District Court which was then reversed
by the Appellate Court. In summary, the Appellate Court ruled and gave an opinion which
was in line with what the Cuyahoga County Board of Elections had originally believed -
voters who believed and insisted that they live within the precinct should be offered a
provisional ballot. However, a new Home Balloting Affirmation Statement was now in
place, which affected the administrative handling of the provisional ballot and created
additional and unnecessary confusion at the polls. In the end, pollworkers were instructed
that there were three categories of voting a provisional ballot and one of three affirmations
that was to be filled out. Confusion.
LOST OPPORTUNITY
State and local election officials across the nation had the opportunity to address
potential issues relative to the provisional voting laws. This was an opportunity for states
that did not have existing provisional voting laws to enact such laws. Other states, like
Ohio, had the opportunity to review and set out a reasonable course of action that would
cure and unify the differences between state law and the Help America Vote Act.
The provisional balloting law in Ohio, although tested and mature, in comparison to
other states, was equally untested and crude in light of the passage of the Help America
Vote Act. Ohio’s provisional voting laws did not parallel the requirements of the Help
America Vote Act. Since 2002, states, like Ohio, should have reviewed and conformed
their provisional balloting laws to meet HAVA’s requirements and pass state legislation.
This did not occur and it was our lost opportunity to implement provisional ballots more
effectively. Instead we were engrossed with the “big ticket” items – creating a statewide
voter registration database and converting the state to a different voting system. A grand
picture was painted, however, like any local election official knows in conducting elections,
“the devil is in the details” and Ohio missed those details.
While there was an enormous amount of time and energy spent on the statewide
voter registration database and voting system conversion, an equal amount of time and
energy was not focused on the other important aspects of HAVA. No one was leading the
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charge on how HAVA would impact Ohio law and vice-versa - case in point the issuance of
provisional ballots in the state. This was simply not done and as a result, a number of
decisions and mandates were made in an untimely fashion.
CLOSING REMARKS
Without taking anything away from a good election, the 2004 Ohio provisional voting
experience was not the model for election agencies across the nation to follow. There
were too many issues that were not resolved within statute and left to interpretation.
Let me provide several practical solutions and issues that all states should address
when considering their respective provisional voting laws and items that the Election
Assistance Commission should contemplate before issuing recommendations.
First, there should be a comparison between state law and the Help America Vote
Act. Do they parallel one another?
Second, there must be clear and concise guidelines on issuing and verifying
provisional ballots.
Third, there is a concern of the uniformity between federal and non-federal election
years and how to handle provisional ballots.
Fourth, there must be consistent and continuous open communication and dialogue
between local and state elections officials, so that we curb the voting issues that potentially
hurt our citizens on election day.
Finally, we need to memorialize what is a valid provisional ballot. Similar to the
Help America Vote Act’s provision on creating uniform standards for what constitutes a
vote, states should memorialize what constitutes a valid or invalid provisional ballot.
Although we did not anticipate the number of provisional ballot issues for the
election, to Ohio’s credit, legislation is currently being proposed to address these issues.