Yesterday, I read Ron Rivest's write-up of his elections observation experience in Georgia this past November ("Trip Report: Election Day 2006: Visit to Atlanta Georgia on 11/7/2006 for election observing" (PDF)).
I was dismayed, as Ron was (page 3), to hear that voters who were not on the rolls were not offered provisional ballots. Under HAVA, all voters who believe they are entitled to cast a vote should at least be permitted to cast a provisional ballot (of course, it's a different question as to whether those ballots would subsequently count).
Georgia's procedures seem to be illegal under HAVA and constitute a HAVA violation. That is, HAVA says in the section that established provisional voting (§302 or 42 USC 15482):
(a) PROVISIONAL VOTING REQUIREMENTS.-If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot [...]
There is one exception in this part of the statute that says certain states don't have to have provisional balloting.:
States described in section 4(b) of the National Voter Registration Act of 1993 (42 U.S.C. 1973gg-2(b)) may meet the requirements of this subsection using voter registration procedures established under applicable State law.
However, that part of the NVRA exempts states that have (1) no registration requirements or (2) same-day registration. Georgia definitely has voter registration and doesn't, as far as I can tell, have same-day voter registration (or these voters could have registered and just voted).
David Becker, former senior Trial Attorney in the Voting Section of the US DOJ, remarks on the election-law list that even the DOJ recognizes this is a HAVA violation:
Most will recall that early last year the DOJ sent Arizona a letter telling them it was OK, under HAVA and other laws, to deny a voter without ID compliant with Prop. 200 a provisional ballot. This position at the time was very controversial, appearing to contradict the express language of HAVA, and many commentators, including some on this list, expressed surprise at the DOJ's position. Less than six months later, the DOJ issued a "clarification" that completely rejected their earlier position, and made clear that Arizona MUST offer provisional ballots to any voter who claims they are entitled to vote, but who otherwise is not entitled to a regular ballot. Thus, even the DOJ at this point recognizes HAVA's requirement that provisional ballots be offered to any voter who claims to be eligible.
Dan Tokaji had a great post about this back in September of 2005 (" DOJ "Clarifies" Position on ID & Provisionals"):
Today's letter makes clear that the DOJ's April 15 opinion letter was incorrect, and that voters are entitled to receive and to cast a provisional ballot, even if they lack ID. The new letter states that "HAVA requires State to allow voters who meet certain specified conditions the opportunity to cast a provisional ballot." Specifically, voters who execute a written affirmation that they are registered and eligible to vote are entitled to cast a provisional ballot.
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