OpinionJournal - John Fund - We May HAVA Problem

Monday, October 18, 2004 12:01 a.m. EDT

It's a safe bet you will hear more about provisional ballots before Election Day--and a lot more if the election goes into overtime again. The provisional ballot could become this year's equivalent of Florida's infamous punch-card ballot, and it could decide who wins the presidency.

This is the first election held under the Help America Vote Act of 2002. One of its key provisions is a requirement that people in all 50 states whose names aren't on voter registration rolls be given a provisional, or conditional, ballot that will then be cross-checked with public records after the polls close to see if it is valid. 'If I had to pick the one thing that will stir up anger and lawsuits on Election Day, it will be provisional voting,' says Doug Chapin, executive director of the nonpartisan Electionline.org.

With 200,000 polling places nationwide, an average of five provisional votes per precinct would mean a million such votes. But in a year when manic registration efforts make it likely there will be a flood of first-time voters, officials expect far more. In Los Angeles County alone more than 100,000 people voted provisionally in 2000, with about 60% of them ultimately declared valid.

But that's the rub. Democrats are preparing to make aggressive media and legal arguments that almost all provisional votes must be counted, a reprise of their 2000 Florida rallying cry of "Count every vote." Yesterday Eric Holder, a top official in Bill Clinton's Justice Department, told "Fox News Sunday" that "if every vote is allowed to be cast, and if every vote is counted, John Kerry will be president within a day of that election." Asked how he could guarantee that, Mr. Holder replied "you heard it right here" and repeated his claim.

This year harried election officials are likely to be overwhelmed by complaining voters. To keep order and make sure the lines at polling places don't become intolerable, officials will hand anyone not on their lists a provisional ballot. "All of those will be counted only after everyone's else's ballots have been counted, and after everyone knows exactly how close the race is," says Mischelle Townsend, a former registrar of Riverside County, Calif.
It's at that point the lawyers are likely to jump in if there's a close race. DeForest "Buster" Soaries, chairman of the federal Election Assistance Commission, warns there is a risk poll workers won't be trained on how to properly handle provisional ballots and that "the manner in which the ballots are verified could be challenged."

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