Backup voting system source of glitches, lawsuits

WASHINGTON - Call it the law of unintended consequences.

A new national backup system meant to ensure that millions of eligible voters are not mistakenly turned away from the polls this year, as happened in 2000, could wind up causing Election Day problems as infamous as Florida's hanging chads.

Congress required conditional, or provisional, voting as part of election fixes passed in 2002. For the first time, all states must offer a backup ballot to any voter whose name does not appear on the rolls when the voter comes to the polling place on Nov. 2. If the voter is later found eligible, the vote counts.

But Congress did not specify exactly how the provisional votes will be evaluated.

Add the ordinary problems that come with doing something new, and the result is a recipe for mix-ups at the polls and lawsuits over alleged unequal treatment of some voters, said Doug Chapin, executive director of, a nonpartisan clearinghouse for information on election reform.

"If I had to pick the one thing that will be a source of controversy on Election Day, it will be provisional voting," Chapin said.

State election officials have adopted their own and differing standards for when a provisional ballot will count; some of those rules are still in flux three weeks from the election.

Rules for who casts provisional ballots and how they are counted probably will vary even within states, especially if there are long lines, confusion and hot tempers at the polls, election experts said.

Some of the states where the race is tightest, such as Florida and Ohio, also have the strictest rules for provisional ballots.

Democrats and Republicans are training lawyers and election monitors to look for problems with provisional voting this year. Already, there are suits in five states claiming election officials are adopting too strict a standard for which votes will count and that eligible voters will be denied the right to vote as a result.

Questions about provisional ballots could produce a major battle after the election, too, with nightmarish echoes of the Florida fight of 2000.

Provisional ballots are pieces of paper that must be evaluated individually and counted by hand. The task is time-consuming, and most states have short deadlines to get the job done, said Doug Lewis, director of the Election Center, a nonpartisan research and training organization for election administrators.

Postelection suits could resemble the Supreme Court's Bush v. Gore case that settled the 2000 election. The justices said it was unfair for Florida counties to apply different standards during punch card recounts, and there was not time to fix the problem.

Twenty-six states and the District of Columbia have adopted the view that a provisional ballot must be cast in the correct precinct, or it will not count.

Under that interpretation, voters unaware that their polling place has moved could be out of luck. So could voters given wrong information about their polling place.

It would not matter whether the mistake was the voter's fault or a clerical error.


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