How provisional ballots — not mail-in ones — could throw a wrench in the 2020 election

• Over the past few months, commentators and the media have issued warnings about how the rise of mail ballots could cause higher rates of ballot rejection and could mean a longer wait for final results.
• But election experts and officials are also expecting a major increase in the rates of provisional ballots, which are time-consuming for officials to process and are always the last to be counted.
• Provisional ballots are issued to in-person voters whose registration status or eligibility can't be immediately verified at the polls. If there are more of them to count, it could draw out the timing of final results.
• In many states, provisional ballots are also issued to voters who requested a mail ballot but went to vote in person, an increasingly common occurrence in 2020.

Over the past several months as states have expanded voting by mail in response to the COVID-19 pandemic, media outlets and commentators have warned about the pitfalls of voting with mail-in ballots, which are more prone to human error and thus face higher rates of rejection than in-person voting.

But provisional ballots cast by in-person voters are an unpredictable and potentially more consequential factor that could extend the time it takes to process all the votes and get full results in some races.

Because provisional ballots are issued to voters whose registration or eligibility to vote is in question, they are often the most time-consuming ballots for officials to process — and are only counted at the very end of the canvassing process, once the voter's registration or eligibility to vote is resolved.

"I think if anything is going to delay the state's canvassing of the official vote totals, it's going to be provisional ballots more than absentees or mail-ins," Forest Lehman, the elections director for Lycoming County in Pennsylvania, a key 2020 battleground state and a hotbed of litigation over 2020 election rules, told Insider. "For all the ink that has been spilled over absentees ... I don't think nearly enough has been said about provisionals."

Congress created provisional ballots with the Help America Vote Act in 2002, enacted in response to the 2000 election debacle in Florida. In addition to problems caused by punchcard voting machines and "hanging chads," thousands of Florida voters were erroneously removed from the voter rolls prior to the election and in many cases, turned away from the polls and not allowed to vote.

The act required officials to issue provisional ballots to voters whose registration status or eligibility to vote in the precinct couldn't be immediately verified at in-person voting sites. Data from the US Election Assistance Commission shows that in the 2016 election, voters cast around 2.5 million provisional ballots, with 71% of those ballots partially or fully counted. By contrast, about 99% of all the absentee and mail-in ballots cast in 2016 were counted.

A voter may be issued a provisional ballot if they show up to vote at a precinct where they're not registered, if they're not listed on the voter rolls at all, if they doesn't bring the required identification required to vote in the states that currently have strict voter ID laws, or if they don't show sufficient proof of residency when registering to vote on Election Day.

And in many states, voters who have requested mail-in ballots but have not yet sent them back must either bring their blank ballot to the polls to be voided in order to vote on a normal ballot, or vote by provisional ballot so that officials can ensure that voters don't cast two ballots. These rules are becoming increasingly relevant due to the rise in popularity of mail-in voting and some voters' anxiety around the process.

"Provisionals end up counting and getting processed way after mail ballots, so when we think about when we'll see election results ... provisionals are actually the final piece of the puzzle, it's not mail-in ballots" Amber McReynolds, the CEO of the National Vote at Home Institute told reporters in an October press briefing. "And we expect a record number of those this year because of registration issues or changes at the last minute."

Lehman told Insider that Lycoming County saw 800 provisional ballots cast in the state's June 9 primary — up from just 26 cast in the 2016 presidential primary. Almost all of those were by voters who had also requested mail ballots and took significantly more time to count than regular mail ballots.

"We canvassed 7,500 mail-in ballots on Wednesday before 5 p.m., but it took us seven to 10 days to process 800 provisionals, and that's going to happen all over the state," Lehman added. "Because even if we get all that other stuff scanned in quickly, we've still got 50 to 100,000 provisionals across the state that are going to take seven to 10 days to get through — well, there's your 2016 margin right there."

Connie Schmdit, the elections commissioner in Johnson County, Kansas, which includes the Kansas City suburbs of Overland Park and Olathe, tweeted on Saturday that about 13% of the total in-person advance votes cast on October 17 and over 300 in-person votes on October 19 were provisional ballots, many of which were issued because the voters had already been sent mail ballots they requested.

—Connie Schmidt (@ConnieSchmidt2) October 19, 2020

MIT elections scholar Charles Stewart III also pointed on Thursday that in the first three days of in-person early voting in Georgia, around 12% of the in-person votes were cast by people who had previously requested a mail ballot.

In addition to voters casting ballots in person because they didn't receive a mail ballot as requested or they forgot that they had requested a mail ballot earlier in the year, some appear to be doing so after receiving their ballot because they may have heard that mail voting is unreliable or that their vote will be counted first if they vote in person.

But, McReynolds explained, voting a provisional ballot will do the exact opposite.

"A lot of people are changing their mind likely because they're being told by pundits or other folks to vote in person instead of vote by mail," she said. "But what's important about that is that in a lot of states, if you go on Election Day to vote in person but you've requested a mail ballot, you're going to vote a provisional."

A recent analysis by the Vote at Home Institute found that nearly every state allows voters who have requested a mail ballot to vote in person either during early voting or on Election Day. Some states allow voters to cast a regular ballot during early or in-person voting even if they requested a mail-in ballot, while others require voters to cast a provisional ballot that is only counted after all other ballots have been processed.

McReynolds also said that states limiting service at Department of Motor Vehicle offices due to the pandemic has also exacerbated barriers to registering and obtaining the required identification to vote. This will be an additional factor that will likely contribute to increased rates of provisional voting.

While the introduction of provisional ballots has helped countless Americans to have their votes counted, they've also been fertile ground for post-election litigation in close races, another under-discussed possibility in 2020.

Questions over the validity of provisional ballots have played a role in dragging out several high-profile election disputes over the past 20 years. Famous among those are a 2004 Washington gubernatorial election and several elections in Ohio, including a contested 2008 congressional race and a 2010 Hamilton County judicial election that was litigated in a federal appeals court.

Election officials say that voters can help ensure a smooth election by choosing one method of voting and sticking to it — if you request and receive a mail ballot, you'll make things easier on yourself and your election officials by returning your ballot by mail or in-person.

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