U.S. Election Assistance Commission 

1225 New York Ave. – Suite 1100 

Washington, DC 20005 

September 13, 2005 

EAC Advisory 2005-006: Provisional Voting and Identification Requirements

The U.S. Election Assistance Commission (EAC) has recently received an inquiry 

regarding whether a state may impose an identification requirement that would limit a potential 

voter’s access to a provisional ballot to which he or she is otherwise entitled under Section 302 of 

the Help America Vote Act (HAVA) (42 U.S.C. §15482). After consideration of the matter, EAC 

has concluded that Section 302 of HAVA creates a voter right. Specifically, the section creates 

the right for a potential voter to utilize a provisional ballot in the event their name does not appear 

on the registration list or the voter’s eligibility is challenged by an election official. While States 

may create voter identification standards that exceed those laid out in HAVA and effect whether a 

provisional ballot is counted, States may not take action that limits a voter’s right to receive and 

submit a provisional ballot. In explaining this position, this advisory reviews the plain language 

of HAVA Section 302, examines the differences between traditional and provisional ballots and 

analyzes the implementation of provisional voting under HAVA Section 303(b). This advisory 

also addresses the impact of a state’s authority to create stricter standards than prescribed by 

HAVA upon HAVA’s provisional voting requirements.1

 

Plain Language of HAVA Section 302. The right to cast a provisional ballot is created in 

Section 302 of HAVA. Pursuant to HAVA, when an individual declares that he or she is a 

registered and eligible voter in a federal election, that individual “shall be permitted to cast a 

provisional ballot” if (1) their name does not appear on the official list of eligible voters or (2) “an 

election official asserts that the individual is not eligible to vote.” (Section 302(a)). This right to 

receive a provisional ballot is contingent upon only one thing (per Section 302(a)(2)), the 

individual’s execution of a written affirmation that he or she is both a registered and eligible voter 

for the election at issue.2

 See also, Sandusky County Democratic Party v. Blackwell, 387 F.3d 

565, 574 (6th Cir. 2004). However, notwithstanding the above, HAVA goes on to recognize that 

the right to submit a provisional ballot constitutes neither a means to avoid State imposed voter 

eligibility requirements nor a vote. Instead, HAVA requires election officials at a polling place to 

 

1

 The EAC is the Federal agency charged with the administration of HAVA. While the EAC does not have rulemaking

authority in the area of provisional voting, HAVA does require the Commission to draft guidance to assist states in

their implementation of HAVA’s provisional voting requirements. Although EAC’s administrative interpretations do 

not have the force of law associated with legislative rules, the Supreme Court has long held that the interpretations of 

agencies charged with the administration of a statute are to be given deferential treatment by Courts when faced with 

issues of statutory construction. York v. Secretary of Treasury, 774 F. 2d 417, 419 – 420 (10th Cir. 1985) (citing

Compensation Commission of Alaska v. Aragon, 329 U.S. 143, 153 – 154 (1963)) See also Christian v. Harris County, 

529 U.S. 576 (2000); Edelman v. Lynchburg College, 122 S. Ct. 1145 (2002). 2

 Moreover, a potential voter determined not to be eligible must be informed of their provisional voting rights per 

Section 302(a)(1) of HAVA. 
transmit a provisional ballot (or information associated with the written affirmation) to appropriate 

election officials for verification. (Section 302(a)(4) of HAVA). These election officials 

ultimately determine the voter’s eligibility based upon information presented to or gathered by it, 

in accordance with State law. In this way, the State determines whether any provisional ballot 

submitted will be counted as a vote. Id.

 In simplest terms, provisional voting represents the right of an individual (whose eligibility 

to vote has been challenged), to reserve their right to vote and postpone the voter eligibility 

determination to a time when more perfect or complete information may be provided. See 

Sandusky County Democratic Party, 387 F.3d at 570 and Florida Democratic Party v. Hood, 342 

F.Supp 1073, 1079-1080 (N.D. Fla. 2004). A provisional ballot does not represent a different 

way to vote, nor does it serve as a bypass to State laws governing voter eligibility. Rather, it is 

designed to prevent an individual from losing his or her right to vote due to the fact that a poll 

worker did not have all the information available or needed to accurately assess voter eligibility. 

Thus, based upon the plain language of Section 302(a) of HAVA, a challenge to an individual’s 

eligibility to vote (such as a challenge based upon identification requirements) cannot serve as a 

bar to the receipt of a provisional ballot, because it is the election official’s challenge that triggers 

the provisional ballot procedure in the first place. To hold otherwise would defeat the purpose of 

provisional voting. In the end, to understand this concept one must understand the differences 

between traditional and provisional ballots. 

Traditional vs. Provisional Ballots. The nature and procedures associated with a provisional 

ballot are wholly distinct from those of a traditional ballot. Because of this fact, the two processes 

must be treated differently. While voter identification requirements may serve as a bar to the 

casting of a traditional ballot, they may not prevent the submission of a provisional ballot. 

 First, the nature and purpose of traditional and provisional ballots are essentially different. 

The purpose of a traditional ballot is to allow a confirmed, eligible voter to cast a vote. The 

purpose of a provisional ballot is to allow individuals whose voter eligibility is challenged to 

reserve the right to vote by memorializing both their intent to vote and their proposed vote. This is 

evident by the HAVA processes discussed above. The bottom line is that the casting of a proper, 

traditional ballot constitutes a vote, while the casting or submission of a provisional ballot does 

not. A traditional ballot is cast only after voter eligibility has been determined by the State. 

Hence, the moment it is cast, it becomes an individual’s vote. On the other hand, the submission 

or casting of a provisional ballot is not a vote. Rather, it is a claim that the potential voter who 

submitted it has the right to vote and reserves that right. As the Sixth Circuit Court of Appeals 

stated: 

[T]he primary purpose of HAVA was to prevent on-the-spot denials of provisional 

ballots to voters deemed ineligible to vote by poll workers. Under HAVA, the only 

permissible requirement that may be imposed upon a would-be voter before permitting 

that voter to cast a provisional ballot is the affirmation contained in [42 U.S.C.] 

§15482(a): that the voter is a registered voter in the jurisdiction in which he or she 

desires to vote, and that the voter is eligible to vote in an election for federal office. 

Sandusky County Democratic Party, 387 F.3d at 574. 

This goes to the very heart of provisional voting. If provisional voting is a right triggered by an 

election official’s determination that an individual has not met a voter eligibility requirement, how 
can such a requirement also serve as a bar to that right? The concept of provisional voting works 

only if the right is always available when the application of voter eligibility requirements is in 

question. 

 Second, consistent with the differences in purpose between traditional and provisional 

ballots, the other major distinction between the two lies in the application of voter eligibility 

requirements. This difference is primarily one of procedural timing. States have the right to 

create voter eligibility requirements and these requirements must be applied to both traditional and 

provisional ballots. In casting a traditional ballot, one must meet all eligibility requirements prior 

to receiving the ballot. However, in the provisional process, the potential voter has already failed 

to meet these preliminary requirements and the application of State law must occur after the ballot 

has been received. State voter eligibility requirements should be applied after the provisional 

ballot and/or supporting affirmation has been transmitted pursuant to Section 302(a)(3) of HAVA. 

Provisional ballots are counted as votes only after election officials have determined that the 

individual can meet voter eligibility standards consistent with state law. Again, the purpose of the 

process is to allow election officials more time, so that they may have more perfect information 

when making a decision about voter eligibility. Provisional ballots are subject to the full effect of 

State law regarding the eligibility to vote and the opportunity the law provides provisional voters 

to supply additional information. Provisional ballots do not escape state or federal voter 

eligibility requirements, those provisional ballots that do not meet State standards will not be 

counted. 

Provisional Voting Under HAVA Section 303(b). Congress provided an example of how 

provisional voting works by applying the right to a specific circumstance. Section 303(b)(2)(B) of 

HAVA, entitled Fail-Safe Voting, provides that when a first-time voter who registered by mail is 

required by HAVA Section 303(b) to show identification, that person must be given a provisional 

ballot if he or she fails to provide such identification at the polling place. This section is 

important as it clarifies Congressional intent regarding how provisional voting should function. 

 The Fail-Safe Voting provision of Section 303(b)(2)(B) grants clear insight into how 

provisional voting should be implemented. While Section 303(b) deals with a specific subset of 

voters (first-time voters who registered by mail), its application of Section 302(a) supports the 

concept that a provisional ballot must be given to a voter who is determined (at the polling place) 

not to meet voter identification requirements. A review of the section shows that in the one area 

where HAVA set a Federal voter identification requirement Congress made clear that an 

individual’s failure to meet this eligibility requirement triggered the statute’s provisional voting 

section. Congress saw no difference between an individual’s failure to meet the voter 

identification requirements it issued in Section 303(b) and the failure to meet eligibility 

requirements which trigger provisional voting under Section 302. Section 303(b) makes it clear 

that Congress did not intend voter identification requirements to limit access to provisional voting. 

Instead, Congress viewed provisional voting as a right, or more specifically, as a fail-safe. The 

EAC strongly believes that HAVA provisions must be interpreted to bring about consistent and 

evenly applied results. In this case, if individuals who fail to meet Federal identification standards 

have the right to a provisional ballot, so must individuals who fail to meet similar State standards. 
Stricter Eligibility Standards and Provisional Voting. HAVA specifically provides that States 

may create stricter voter eligibility standards than provided in HAVA.3

 Arizona’s “Proposition 

200” identification requirements are a prime example of this authority. However, the HAVA 

authority to create stricter eligibility standards does not grant the state authority to create standards 

that bar access to a provisional ballot. To interpret HAVA otherwise (i.e. allowing stricter state 

identification standards to bar access to provisional ballots) would render HAVA’s provisional 

voting mandate (Section 302) void and meaningless. HAVA cannot be read to grant both (1) the 

right to a provisional ballot if an individual’s voting eligibility is challenged by a State and, (2) the 

right of that State to deny an individual a provisional ballot if they do not meet voter eligibility 

standards. These concepts are mutually exclusive. HAVA cannot be interpreted to allow a State 

to create voter eligibility standards that bar the Section 302 right to cast a provisional ballot 

without nullifying the effect and intent of that provision. Any such interpretation of HAVA would 

run afoul of both HAVA Section 304 and longstanding principles of statutory construction. 

 First, HAVA notes in Section 304 that while States may create standards that are stricter 

that those established under HAVA, this authority is limited to the extent “such State requirements 

are not inconsistent with the Federal requirements under [HAVA].” Clearly, provisional voting is 

a requirement under HAVA. Section 302(a) notes that qualified individuals “shall be permitted to 

cast a provisional ballot.” (Emphasis added). In this way, States may not create standards that are 

inconsistent or interfere with the provisional voting mandate. 

 Furthermore, long established principles of statutory construction further prohibit an 

interpretation of HAVA that would render any of its provisions meaningless. It is "‘a cardinal 

principle of statutory construction' that 'a statute ought, upon the whole, to be so construed that, if 

it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’" 

TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001), (quoting Duncan 

v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)). 

A Stricter Provisional Voting Standard. As discussed above, States’ have the right to impose 

stricter requirements than those laid out in HAVA. The EAC has already made it clear, above, 

that a stricter voter eligibility requirement cannot be read to bar an individual’s right to a 

provisional ballot. However, could a stricter requirement regarding provisional voting serve to 

limit access to such ballots? No. A stricter State requirement for provisional voting would be a 

standard that enhances a person’s access to a provisional ballot. As the Sixth Circuit noted, 

“HAVA is quintessentially about being able to cast a provisional ballot.” Sandusky County 

Democratic Party, 387 F.3d at 576. “HAVA’s requirements ‘are minimum requirements’ 

permitting deviation from its provisions provided that such deviation is ‘more strict than the 

requirements established under’ HAVA (in terms of encouraging provisional voting)....” Id., 

(quoting 42 U.S.C. §15484, emphasis added). Thus, in terms of provisional voting, a stricter 

standard is one that serves to further encourage provisional voting. When passing laws affecting 

provisional voting, States must ensure that their provisions are consistent with HAVA or 

otherwise serve to further an individual’s access to a provisional ballot. EAC concludes that any 

policy asserting that States may pass laws limiting access to provisional ballots conflicts with 

HAVA. 

 

3

 See 42 U.S.C. §§15485 – 15485, entitled Minimum Requirements and Methods of Implementation Left to Discretion 

of State, respectively. 
Conclusion. A state may not impose an identification requirement that would limit a potential 

voter’s access to and submission of a provisional ballot. However, such requirements (when 

coupled with a state’s provisional ballot procedures) may prevent a provisional ballot from being 

counted. 

 Gracia Hillman Paul DeGregario 

Chair Vice Chairman 

 Ray Martinez III Donetta Davidson 

Commissioner Commissioner