**Testimony of Kristen Clarke**

**Co-Director, Political Participation Group**

**NAACP Legal Defense and Educational Fund, Inc.**

**U.S. Election Assistance Commission**

**Public Meeting and Workshop Regarding**

**Empowering Voters**

**September 18, 2008**

> **[Empowering Voters During the 2008 Election Cycle]{.underline}**
>
> Founded under the direction of Thurgood Marshall, the NAACP Legal
> Defense and Educational Fund (LDF) is the nation's oldest and, we
> believe, finest civil rights law firm that has served as legal counsel
> for African Americans on a significant number of important federal
> voting rights matters over the course of the last several decades. LDF
> has also provided testimony in support of the Voting Rights Act of
> 1965 and other federal voting rights laws and core voting protections.
> Through extensive litigation, advocacy, public education and election
> monitoring efforts, particularly in the Deep South, LDF has developed
> significant expertise regarding barriers to political participation.
>
> I currently serve as the Co-Director of LDF's Political Participation
> Group. Prior to joining LDF, I served for several years in the Civil
> Rights Division of the U.S. Department of Justice, handling matters
> arising under the Voting Rights Act of 1965 and other federal voting
> rights statutes. I have also coordinated a number of federal observer
> monitoring efforts around the country. I am pleased to offer this
> testimony highlighting issues surrounding the provisional balloting
> process which raises concerns worthy of careful examination by the
> U.S. Election Administration Commission (EAC) in advance of the
> upcoming November 2008 federal election.
>
> The most recent federal election cycles have significantly undermined
> public confidence in our political system. One of the key problems
> that emerged during these elections concerns the administration and
> implementation of provisional balloting rules in many states. In our
> view, state rules and practices that lead to high rejection rates for
> provisional ballots is a serious problem that denies many eligible
> citizens the opportunity to meaningfully participate in federal
> elections. Moreover, high provisional ballot rejection rates appear to
> be particularly stark in those jurisdictions with significant numbers
> of minority voters.[^1] For these reasons, it is important that the
> EAC investigate the problems surrounding provisional balloting and
> offer recommendations about ways that states can improve their
> respective rules and practices. Improvements and refinements to
> provisional balloting systems should aim to both cure high rejection
> rates and progressively reduce the number of provisional ballots cast
> over time. Improving the administration of provisional balloting in
> federal elections can help ensure that all voters, including minority
> voters, are given an equal opportunity to cast a ballot that will
> count during the upcoming November general election.
>
> **[Addressing High Rejection Rates of Provisional Ballots Cast During
> Federal Elections]{.underline}**
>
> After the voting controversies surrounding the 2000 Presidential
> election, Congress sought to improve the administration of elections
> by including a "fail-safe" or provisional voting requirement as a core
> feature of the Help America Vote Act of 2002 (HAVA).[^2] Specifically,
> Section 302 (a) of HAVA[^3] requires election officials to provide
> individuals who are not listed on the voter registration rolls, but
> believe themselves to be eligible, an opportunity to vote by
> provisional ballot. If the individual is later determined to be
> eligible to vote under state law, the provisional ballot will be
> counted.
>
> While HAVA mandated that all states adopt laws and procedures to help
> maximize the chances that a provisional ballot cast by eligible voters
> would count, states have differed in their implementation of
> provisional voting requirements. Therefore, the rate of provisional
> ballots cast and counted varies significantly from state to state. For
> example, during the recent 2008 Presidential Preference Primary in
> Louisiana, approximately 95 percent of all provisional ballots cast
> were rejected and not counted. Similarly, 81 percent of provisional
> ballots cast during Louisiana's 1st and 6th Special Congressional
> Primary elections held on March 8, 2008 were also rejected.[^4]
>
> Nation-wide surveys conducted by Election Data Services[^5] and
> Project Vote[^6] found that the primary reason for provisional ballots
> not being counted was the fact that voters' names did not appear on
> the registration rolls. While there are a number of reasons why a
> voter's name may not appear on the rolls, there is also evidence that
> Registrar's are failing to properly and timely process registration
> applications and evidence of the implementation of state-wide purge
> programs that may lead to the disenfranchisement of voters. One such
> purge program recently adopted by the State of Louisiana likely
> resulted in the purging of thousands of eligible voters, including
> many African-Americans, from registration rolls throughout the
> state.[^7] In response to the high rejection rate of provisional
> ballot applications, several states have adopted forward-thinking
> solutions that are aimed at curing the underlying problems and
> progressively reducing the number of provisional ballots cast during
> elections across time.
>
> **[Using the Provisional Ballot Application as a Voter Registration
> Form]{.underline}**
>
> A number of states, including Maryland and Oregon, utilize the
> provisional ballot envelope as a voter registration application; other
> states require voters to complete an affidavit which may also serve as
> a voter registration application. Kansas and Tennessee do not include
> voter registration applications as a part of the provisional ballot
> but, instead through state law, mandate that voters complete a
> separate registration application before casting a provisional ballot.
> While different in methodology, at least 12 states employ a system
> whereby provisional ballots effectively serve as a voter registration
> application.
>
> Using the provisional ballot as a voter registration application
> ensures that those citizens whose names are excluded from the rolls
> are added to the rolls in advance of the next election. This process
> also helps ensure that citizens' efforts are not wasted, as the
> registration application provides for the possibility that those
> voters deemed ineligible will be given the opportunity to cast a
> ballot in any subsequent election. This process allows local election
> officials to add eligible individuals in their jurisdiction to the
> rolls, and also helps local election officials update their files as
> the voter registration form may capture corrections or changes to a
> voter's address, party affiliation, or other personal information.
>
> Interestingly, the survey data illustrates that states with this
> combined provisional ballot/registration application process record a
> higher provisional ballot acceptance count across time. Indeed, those
> individuals whose names were excluded from the rolls are more likely
> to find their names on the rolls in subsequent elections resulting in
> a reduction in the number of provisional ballots that would be cast in
> any future election. That said, the success of such a system is also
> tied to adequate and effective training of poll officials who must
> ensure that provisional ballots are only offered in limited
> instances.[^8] Poll workers must also be able to clearly and
> effectively address any questions that voters might have to ensure
> that voters complete the provisional ballot/voter registration
> application correctly.
>
> **[Discouraging Restrictive Rules That Limit the Counting of
> Provisional Ballots Cast in Federal Elections]{.underline}**
>
> In recent federal elections, there has been tremendous confusion among
> local and state election officials regarding whether provisional
> ballots should only be counted if cast in the voter's assigned
> precinct. Section 302(a) of HAVA states that provisional ballots
> should be counted if the voter declares their eligibility in the
> "jurisdiction" where they wish to vote. Some states have interpreted
> "jurisdiction" narrowly to mean "the precinct in which a person is a
> legally qualified elector." These states prohibit the counting of
> ballots even in those instances in which a voter may have cast their
> ballot at the right polling place but wrong precinct table and in
> instances in which a voter may have been misdirected to the wrong
> precinct by poll officials. In our view, this restrictive
> interpretation significantly undermines the objectives that Congress
> sought to achieve in its adoption of HAVA. Those provisional ballots
> cast in the incorrect precinct but in the correct jurisdiction should
> be counted, and the EAC should closely examine varying state practices
> in this regard and offer guidance that helps ensure that "every vote
> counts."
>
> **[Conclusion]{.underline}**
>
> Despite the important Congressional goals underlying the adoption of
> HAVA, recent federal elections reveal a number of problems and issues
> with the implementation and administration of the provisional
> balloting process. Unnecessary restrictions upon the counting of
> provisional ballots and high rejection rates among those provisional
> ballots cast, raise important concerns for those committed to the goal
> of ensuring that all citizens have the right to participate in
> elections. Over the next several weeks, the EAC stands to play an
> important role by providing guidance to states that can help address
> the problems seen in recent federal elections and ensure fulfillment
> of the original Congressional goals underlying HAVA. Guidance offered
> now can help better inform and shape the training of those poll
> workers that will be dispatched to polling sites around the country
> for the November 2008 general election. Guidance can also help bring
> about uniformity and clarity in the administration of the provisional
> balloting system in states, and help ensure that local and state
> election officials enforce provisional balloting rules in a way that
> increases the likelihood such ballots will be counted or, at minimum,
> ensures that those voters deemed ineligible are added to the
> registration rolls for subsequent elections.

[^1]: ^?^ Allan J. Lichtman, *Report on the Racial Impact of the
    Rejection of Ballots Cast in the 2000 Presidential Election in the
    State of Florida 4*, in [U.S. Commission on Civil
    Rights]{.smallcaps}, Voting Irregularities in Florida During the
    2000 Presidential Election (2001).

[^2]: ^?^ Help America Vote Act of 2002, 42 U.S.C.A. §§ 15301-15545.

[^3]:
    > Section 302(a) of HAVA: "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 as follows."

[^4]:
    > *See* Post-Election Statistical Report, Louisiana Secretary of
    > State *available at*
    > <http://www.sos.louisiana.gov/tabid/176/Default.aspx>

[^5]:
    > *See* Report of Election Data Services, 2004 Election Day Survey
    > (2004) *available at*
    > http://www.eac.gov/clearinghouse/docs/eds2004/eds-2004-part-2-chapter-6/attachment_download/file

[^6]:
    > *See* Report of Project Vote, Maximizing the Effectiveness of
    > Provisional Balloting *available at
    > http://projectvote.org/fileadmin/ProjectVote/Policy_Briefs/Project_Vote_Policy_Brief_6_Maximizing_the_Effectiveness_of_Provisional_Voting.pdf*

[^7]: ^?^ *See* Testimony of Kristen Clarke, NAACP Legal Defense and
    Educational Fund, U.S. House Committee on House Administration,
    Elections Subcommittee (October 23, 2007) *available at
    http://www.naacpldf.org/content/pdf/barriers_to_voting/Testimony_Kristen_Clarke_Voter_List_Maint.pdf*

[^8]: ^?^ LDF's recent election monitoring efforts reveal that poll
    officials often overuse and misuse provisional ballots offering them
    to voters in instances not contemplated by HAVA.