APPENDIX C: PROVISIONAL BALLOT LITIGATION BY ISSUE 

Moritz College of Law 

June 28, 2006
2

Overview:

• Wrong precinct

o League of Latin American Citizens (LULAC) v. Arizona Secretary of State 

Jan Brewer 

o Colorado Common Cause v. Donetta Davidson, No. 04CV7709, 2004 WL 

2360485 (Colo. Dist. Ct. Oct. 18, 2004) 

o AFL-CIO v. Hood, 885 So. 2d 373 (Fla. 2004) 

o The Florida Democratic Party v. Hood, 342 F. Supp. 2d 1073 (N.D. Fla. 

2004) 

o Dean Brooks et al. v. Attorney General Tom Miller 

o Bay County Democratic Party, et al v. Land et al, 347 F. Supp. 2d 404 (E.D. 

Mich. 2004) 

o Claude Hawkins, Brian Morahan, Susan Schilling and the Missouri 

Democratic Party v. Matt Blunt 

U.S. District Court Western District of Missouri, Case No. 2:04-cv-04177 

o Panio v. Sunderland, 4 N.Y.3d 123, 824 N.E.2d 488 (N.Y. 2005) 

o James v. Bartlet, 607 S.E. 2d 638, 359 N.C. 260 (N.C. 2005)

o The League of Women Voters of Ohio et al v. Blackwell, 340 F. Supp. 2d 823 

(N.D. Ohio 2004) 

o Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 

2004) – Opinion in Sixth Circuit case, 10/23/04 

Sandusky County Democratic Party v. Blackwell, 361 F. Supp. 2d 688 (6th 

Cir. 2005) – Opinion in District Court in Plaintiff’s request for attorney’s 

fees, which was granted, 3/3/05 

o State of Ohio ex rel. Mackey et al v. Blackwell et al, No. 85597, 2004 WL 

2973976 (Ohio App. 8 Dist. Dec. 22, 2004) 

• Absentee voters who did not receive a ballot who wish to vote provisionally

o Colorado Common Cause v. Donetta Davidson, No. 04CV7709, 2004 WL 

2360485 (Colo. Dist. Ct. Oct. 18, 2004)

o White v. Blackwell, et al. 

U.S. District Court for the Northern District of Ohio, Case No. 3:04CV 

7689 

• Equal protection – inconsistent treatment or distribution of provisional 

ballots

o Schering v. Blackwell 

U.S. District Court for the Southern District of Ohio, Case No. 1:04-cv-755. 

o State of Ohio ex rel. Mackey et al v. Blackwell et al, No. 85597, 2004 WL 

2973976 (Ohio App. 8 Dist. Dec. 22, 2004) 

• Provisional ballots which were incomplete in some way (not signed, do not

display election district, etc.)

o Panio v. Sunderland, 4 N.Y.3d 123, 824 N.E.2d 488 (N.Y. 2005) 

o Borders v. King County 

Superior Court, Chelan County, No. 05-2-00027-3 

• Requirement for provisional ballot to be counted – ID required
3

o Bay County Democratic Party, et al v. Land et al, 347 F. Supp. 2d 404 (E.D. 

Mich. 2004) 

o The League of Women Voters of Ohio et al v. Blackwell, 340 F. Supp. 2d 823 

(N.D. Ohio 2004) 

• Verification procedure for provisional ballots

o State of Ohio ex rel. Mackey et al v. Blackwell et al, No. 85597, 2004 WL 

2973976 (Ohio App. 8 Dist. Dec. 22, 2004) 

o Borders v. King County

Superior Court, Chelan County, No. 05-2-00027-3 

o McDonald, et al v. Secretary of State, 103 P.3d 722 (Wash. 2004) 

o Washington State Democratic Party v. King County Records, Elections & 

Licensing Services Division 

Superior Court, King County, 04-2-36048-0 SEA 

• Provisional v. regular ballot for voter who properly registered but was left 

off election rolls

o Citizens Alliance for Secure Elections v. Michael Vu 

U.S. District Court for the Northern District of Ohio, Case No. 1:04CV2147 

• Voters who have moved and not updated their registration

o Citizens Alliance for Secure Elections v. Michael Vu 

U.S. District Court for the Northern District of Ohio, Case No. 1:04CV2147 

• Provisional ballots cast by voters who claimed that someone else voted in 

their place and signed precinct record

o Panio v. Sunderland, 4 N.Y.3d 123, 824 N.E.2d 488 (N.Y. 2005) 

• Disclosure to a political party of provisional votes in danger of being rejected

o Washington State Democratic Party v. King County Records, Elections & 

Licensing Services Division 

Superior Court, King County, 04-2-36048-0 SEA 

• Provisional ballots incorrectly tabulated with regular ballots

o Borders v. King County

Superior Court, Chelan County, No. 05-2-00027-3 

• Re-canvassing ballots previously rejected

o McDonald, et al v. Secretary of State, 103 P.3d 722 (Wash. 2004) 

o Washington State Republican Party v. King County Division of Records, 103 

P.3d 725 (Wash. 2004) 
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Full Summaries:

Wrong Precinct

• League of Latin American Citizens (LULAC) v. Arizona Secretary of State Jan 

Brewer 

o ISSUE: wrong precinct 

 Lawsuit claims Arizona state policy to not count provisional 

ballots that were cast in the wrong precinct violates HAVA and the 

Equal Protection Clause of the 14th Amendment. Electionline.org 

– Litigation Summary (Feb. 14, 2005), http://www.electionline. 

org/Portals/1/Publications/litigation.update.Feb.14.05.pdf. 

o RESULT: N/A

o RATIONALE: N/A

• Colorado Common Cause v. Donetta Davidson, No. 04CV7709, 2004 WL 2360485 

(Colo. Dist. Ct. Oct. 18, 2004)

o ISSUE: wrong precinct; absentee voters getting provisional ballots 

 Lawsuit challenges a state guideline that prohibits anyone voting in 

the wrong precinct from casting a ballot in any race but the 

presidential election based on HAVA and the Constitution 

(fundamental rights challenge). 2004 WL 2360485, at *1. 

 Challenges state guideline that provisional ballots will not be 

counted if the voter applied for an absentee ballot based on HAVA 

and the Constitution (fundamental rights challenge). 2004 WL 

2360485, at *1. 

o RESULT: votes cast in the wrong precinct may only count for president 

and vice president; provisional votes cast by voters who applied for 

absentee ballots must be counted. 

o RATIONALE: 

 Court felt that Congress had no intent to eliminate precinct-based 

voting, a constitutional form of organizing voting; therefore, votes 

cast in the wrong precinct may not be counted for county-wide 

issues. 2004 WL 2360485, at *11. Court also felt that the legislative 

history behind HAVA’s passage supported this notion. Id. 

 Court felt that requiring voters to vote in the correct precinct is not an 

unconstitutional infringement on the right to vote. 2004 WL 

2360485, at *14. The impact of the requirement is further lessened by 

the fact that poll workers will direct the voter to the correct precinct. 

Id. In addition, the Court felt that there was a compelling interest in 

preventing voter fraud furthered by the precinct system. Id. 

• The Court left the door open to the possibility that state-wide 

voting may be possible after a state-wide computerized 

database is established in 2006. Id. 

 Court felt that not allowing voters who requested an absentee 

ballot to vote provisionally would conflict with the purpose of 

HAVA to ensure that registered and eligible voters are allowed to 

vote provisionally. 2004 WL 2360485, at *11, 12. 
5

• AFL-CIO v. Hood, 885 So. 2d 373 (Fla. 2004)

o ISSUE: wrong precinct 

 Lawsuit claimed that the precinct system was an unnecessary and 

unconstitutional infringement on the right to vote under the Florida 

and U.S. Constitutions. 885 So.2d at 374. 

o RESULT: votes cast in the wrong precinct may be rejected and not 

counted. 

o RATIONALE: Precinct based system is a regulation of the voting process 

not a qualification placed on the voter and could have been reasonably 

deemed necessary to protect the integrity of the voting process. 885 So.2d 

at 376. 

• The Florida Democratic Party v. Hood, 342 F. Supp. 2d 1073 (N.D. Fla. 2004) 

o ISSUE: wrong precinct 

 Right to provisional ballot if in the wrong precinct (conceded by 

Florida prior to Order Granting Preliminary Injunction) 

 Right for vote to be counted if cast in the wrong precinct based on 

interpretation of HAVA language. 

 342 F. Supp. 2d at 1074. 

o RESULT: voters in the wrong precinct are entitled to a provisional ballot, but 

are not entitled to have that vote counted if cast in the wrong precinct. 342 F. 

Supp. 2d at 1083. 

o RATIONALE: 

 Reading the statute to mean that a voter must be eligible at that 

polling place is consistent with HAVA’s purpose, to allow voters to 

vote when they appear at the polling place, not to eliminate precinct 

voting. 342 F. Supp. 2d at 1079. 

 Reading is also consistent with votes being counted “in accordance 

with State law.” 342 F. Supp. 2d at 1080. 

 Reading consistent with legislative history which says that poll 

workers should direct voters to the correct precinct not allow voters to 

vote at any polling site. 342 F. Supp. 2d at 1080. 

 “Eligible” in HAVA language means registered, 18 years of age, has 

lived in State for at least 30 days. 342 F. Supp. 2d at 1080. 

 HAVA intended to safeguard voter’s right to vote but allow state law 

to determine whether that vote counts. 342 F. Supp. 2d at 1080. 

 Because election workers may make mistakes with on-the-spot 

determinations of the voter’s polling place, a voter may not be denied 

a provisional ballot because an election official determined that he/she 

is at the wrong polling place. 342 F. Supp. 2d at 1081. 

• Dean Brooks et al. v. Attorney General Tom Miller 

o ISSUE: wrong precinct 

 Challenge Attorney General decision that votes cast in the correct 

county but wrong precinct should be counted for Congress and 

President and Vice President only. Electionline.org – Litigation 

Summary (Feb. 14, 2005), http://www.electionline.org/Portals/1/ 

Publications/litigation.update.Feb.14.05.pdf. 
6

o RESULT: N/A 

o RATIONALE: N/A 

• Bay County Democratic Party, et al v. Land et al, 347 F. Supp. 2d 404 (E.D. Mich. 

2004)

o ISSUE: wrong precinct; identification requirement for ballot to count 

 Lawsuit challenges Secretary of State’s directive that votes cast in the 

wrong precinct but correct township, city, or village should not be 

counted based on HAVA. 347 F. Supp. 2d at 427-34. 

 Lawsuit challenges Secretary of State’s directive that first time voters 

should be required to provided identification within six days of 

election day in order for their votes to count under HAVA, the 

Fourteenth Amendment to the Constitution, Michigan election law, 

and the Equal Protection Clause of the Michigan Constitution. 347 F. 

Supp. 2d at 434-35. 

o RESULT [but later overruled by Sixth Circuit]: votes cast in the wrong 

precinct but correct city, village, or township should be counted; 

identification may be required of provisional voters after the election in order 

for their votes to count. 347 F. Supp. 2d at 438. 

o RATIONALE: 

 With regard to the wrong precinct issue, the Court relies on the 

District Court decision in Sandusky County Democratic Party v. 

Blackwell, 339 F. Supp. 2d 975, 992-93 (N.D. Ohio 2004). Bay

County, 347 F. Supp. 2d at 431-32. 

 The Court also relies on the “plain language” of HAVA – votes are to 

be counted in accordance with state law (dictates the procedure of 

counting); whether or not votes are counted is decided under HAVA; 

votes under HAVA are counted if the voter is “eligible” to vote. 347 

F. Supp. 2d at 431-32. 

 With regard to the identification requirement, the Court found that the 

requirement was reasonable; that preventing voter fraud is a 

compelling interest; and that the requirement is applied uniformly and 

in a nondiscriminatory manner. 347 F. Supp. 2d at 435. 

o OVERRULED: 6th Circuit ruled that votes in the wrong precinct should not 

be counted and interpreted “jurisdiction,” “eligible,” and the HAVA 

provision concerning provisional ballots differently. Sandusky County

Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004). 

• Claude Hawkins, Brian Morahan, Susan Schilling and the Missouri Democratic 

Party v. Matt Blunt 

U.S. District Court Western District of Missouri, Case No. 2:04-cv-04177 

o ISSUE: wrong precinct 

 Plaintiffs claim that not counting provisional votes cast in the wrong 

precinct is in violation of HAVA (preemption argument). Order 

denying Plaintiffs' Motion for Summary Judgment, granting 

Defendants' Motion for Summary Judgment 3. 

• But the Secretary of State later decided to count those 

provisional ballots in which the voter was not directed to the 
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correct polling place, so this issue was considered moot. 

Order 11. 

 Plaintiffs also disputed a provision of Missouri law which states that a 

voter should be directed to the correct polling place in lieu of 

receiving a provisional ballot. Order 10, 12. The provision has been 

interpreted to mean that if a voter refuses to go to the correct polling 

place, he shall be given a provisional ballot, which will not be 

counted (allege it is inconsistent with HAVA - preemption). Order 

10, 12. 

• Allege that the Missouri law implementing HAVA “frustrates 

the intent” of HAVA. Order 13. 

 Plaintiffs also allege that the Missouri law violates the Equal 

Protection Clause because the decision not to count ballots cast at an 

incorrect polling place is arbitrary. Order 21. 

o RESULT: Provisional ballots cast in the wrong precinct should be thrown 

out provided that the voter was directed to correct precinct. Order. 

o RATIONALE: 

 HAVA was intended to be flexible in the way in which states could 

implement it, evidenced by use of the phrase “eligible under state law 

to vote.” Order 14. 

• This reference to state law gives states the power to define 

voter qualifications for provisional ballots including where 

they can be cast in order to be counted. Id. 

 Court relies on statements of Sen. Bond and other HAVA supporters, 

stating that they did not intend to overturn State law regarding the 

jurisdiction in which a ballot must be cast and that poll workers 

should direct the voter to the correct polling place in the event of 

confusion. Order 15-16. 

 The laws do not violate the Equal Protection Clause because the goals 

and objectives of the precinct system are legitimate, and it guarantees 

those eligible to vote may do so. Order 22. The system is rationally 

related to ensuring a fair election. Id. 

• Panio v. Sunderland, 4 N.Y.3d 123, 824 N.E.2d 488 (N.Y. 2005)

o ISSUES: wrong precinct; voters who voted provisionally because other 

voters had signed poll ledger in their place; provisional ballots in which the 

envelope did not identify the election district of the voter 

 Claims all based on N.Y. election law – once case got to Supreme 

Court, no claims based on Constitution or HAVA. 

o RESULT: 

 Provisional votes in which the voter was in the correct polling place, 

but wrong district should be counted; voters in the wrong polling 

place and wrong district should not be counted. 4 N.Y. 3d at 128. 

 Provisional ballots cast by voters who claimed that another voter 

voted in his/her place and signed the precinct ledger should not be 

counted. 4 N.Y. 3d at 129. 
8

 Provisional ballots in which the election district was not identified on 

the envelope should be counted. 4 N.Y. 3d at 129. 

o RATIONALE: provisional ballots should be counted if the ballots were in 

dispute only as a result of ministerial errors by the election board. 4 N.Y. 3d 

at 129. 

 Ballots cast in the correct polling place but wrong district were 

counted because they were assumed to be the result of ministerial 

error; the election officers should have directed the voter to the 

correct voting table. 4 N.Y. 3d at 128. Ballots cast in the wrong 

polling place and district were not counted because it would be 

unreasonable to require poll workers to ensure that voters are at the 

correct polling site. Id. 

 Provisional votes cast by voters who claimed another voter had voted 

in their place earlier were not counted because of the possibility of 

fraud. 4 N.Y. 3d at 129. 

 Provisional ballots lacking the election district on the envelope were 

counted because they were cast in the correct election district, and 

mishandling by election officials caused the ballots to become 

unidentifiable with a district (election officials placed post-it notes on 

the ballots containing the missing information, but the notes later fell 

off). 4 N.Y. 3d at 129. 

o DISPOSITION: application for rehearing denied – 2/7/05 

• James v. Bartlet, 607 S.E. 2d 638, 359 N.C. 260 (N.C. 2005)

o ISSUE: wrong precinct 

 Whether or not ballots cast outside the voter’s home precinct should 

be counted as long as the voter casts a ballot for races in his home 

precinct. 607 S.E. 2d at 640. 

o RESULT: NC state law requires voters to vote in the correct precinct; 

therefore, votes cast in the wrong precinct were not counted for state and local 

elections (did not discuss federal elections). 607 S.E. 2d at 645. 

o RATIONALE: 

 Plain language of state statute requires that the voter be a resident of 

the precinct he votes in and registers in (refers to “the precinct” versus 

“a precinct”). 607 S.E. 2d at 642. 

 No intent to enable voters to vote outside their precincts by Congress 

or state legislature in enacting provisional ballot statutes. 607 S.E. 2d 

at 643. 

 Administrative Code sets out precise circumstances under which a 

voter may vote a provisional ballot and specifies that the voter must 

reside in the precinct. 607 S.E. 2d at 643. 

 Court may not remedy Election Board’s decision to give provisional 

ballots to voters in a manner not authorized by State law. 607 S.E. 2d 

at 644. 

 Advantages of the precinct system: caps number of voters at one 

polling place; allows there to be one uniform ballot for all voters at 

that polling place; ballots may list only those elections a voter may 
9

vote for (less confusing); easier to monitor fraud; and it puts polling 

places closer to people’s homes. 607 S.E. 2d at 644-45. 

• The League of Women Voters of Ohio et al v. Blackwell, 340 F. Supp. 2d 823 

(N.D. Ohio 2004)

o ISSUES: wrong precinct & identification requirement for ballot to count 

 Wrong precinct issue. 340 F. Supp. 2d at 824. 

 Whether identification provided on election day should be required of 

provisional voters (voting provisionally because of ID requirement) in 

order for ballot to count. 340 F. Supp. 2d at 828. 

• Claim that it will cause provisional ballots voted by voters 

without identification (who cannot remember their numerical 

identifier, do not have a numerical identifier, or cannot return 

to the polls prior to closing) to be rejected. 

o Fourteenth Amendment fundamental rights claim. 

o Claim under HAVA based on interpretation of the 

“eligible” language. 

o RESULT: 

 Wrong precinct issue decided already in Sandusky County 

Democratic Party, and even though it was on appeal at the time of the 

decision, the Judge decided that the relief granted (or not) from that 

case would be sufficient to serve the interests of these plaintiffs as 

well (he did not reach a decision on the issue). 340 F. Supp. 2d at 

824. 

 Identification or oral recitation of identification number (DL or SS) 

may be required before the polls close in order for a provisional ballot 

to count. 340 F. Supp. 2d at 831. 

o RATIONALE: 

 Identification may be required to preserve the integrity of elections 

and prevent voter fraud, which outweighs the interest in ensuring that 

every ballot count. 340 F. Supp. 2d at 829. Further, there is no less 

burdensome way to detect and prevent election fraud. Id. 

 Identification may be required because HAVA allows it; the 

requirement affects a small number of voters (registered by mail, 

voting for the first time, have no identification, cannot recite a 

numerical identifier); it is easy to obtain the identification information 

(telephone, quick return home); and notice is given of the requirement 

on the registration form. 340 F. Supp. 2d at 830. 

 Identification may be required because HAVA’s language about 

“eligible under State law to vote” only means that the name on the 

registration form is eligible to vote. 340 F. Supp. 2d at 831. A voter 

must still prove that he/she is the same person as the person on the 

registration form, who is “eligible” to vote under State law, and 

proving identity is a reasonable burden. Id. 
10

• Sandusky County Democratic Party v. Blackwell, 339 F. Supp. 2d 975 (N.D. Ohio 

2004) – Order in District Court case, 10/14/04 

Sandusky County Democratic Party v. Blackwell, 340 F. Supp. 2d 815 (N.D. Ohio 

2004) – Order in District Court case, 10/20/04 

Sandusky County Democratic Party v. Blackwell, 386 F.3d 815 (6th Cir. 2004). – 

Order in Sixth Circuit case, 10/23/04

Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) – 

Opinion in Sixth Circuit case, 10/23/04

Sandusky County Democratic Party v. Blackwell, 361 F. Supp. 2d 688 (6th Cir. 

2005) – Opinion in District Court in Plaintiff’s request for attorney’s fees, which was 

granted, 3/3/05 

o ISSUE: wrong precinct 

 Plaintiffs claim that a Directive by the Secretary of State denies 

provisional ballots to voters inadvertently purged from voter lists or to 

those who go to the wrong precinct and only allows provisional 

ballots to voters who have moved and not updated their registration. 

Complaint 2-3. 

• Claim that this violates the purpose of HAVA – to ensure that 

all electors are eligible to vote provisionally. 339 F. Supp. 2d 

975. 

• Claim that “jurisdiction” means the same as the geographic 

unit which maintains voter registration rolls and the same as 

its meaning in the NVRA. 387 F.3d at 574-75. 

 Statutory claim that HAVA provides an absolute right to cast a 

provisional ballot which counts provided that the voter is registered 

and eligible. Complaint 6-7. 

• Provisional ballots should be given to every voter who 

attempts to vote in the correct county but not necessarily the 

correct precinct. Complaint 10-11. 

 Claim that a voter (who has moved) who goes to one polling place 

attempting to vote and then goes to the other later should be allowed a 

provisional ballot. Complaint 12, 14. 

o RESULT: Votes cast in the wrong precinct may not be counted by a state, 

but voters must be permitted to cast them. 386 F.3d at 816. HAVA secures 

the right to cast a provisional ballot; the legality of the ballot must be 

determined under state law. 386 F.3d at 576. 

o RATIONALE: 

 Precinct system rooted in tradition; no indication Congress wished to 

completely overhaul the voting system of most states. 387 F.3d at 

568; 387 F.3d at 576. 

 Advantages of precinct system: caps the number of voters at one 

place; allows ballot for all voters at one precinct to be the same for all 

elections; ballot lists only elections the voter may vote for (less 

confusing); easier to monitor and prevent fraud; and puts polling 

places closer to voter’s homes. 387 F.3d at 569. 
11

 Court believes that the totality of the legislative history supports the 

notion that jurisdiction equals precinct, and votes cast outside the 

voter’s precinct should not be counted under HAVA. 387 F.3d at 

575. 

 The District Court’s broad reading of “eligible under state law to 

vote” leads to the conclusion that a voter could vote multiple times in 

one election, and all of the provisional ballots would count if state law 

is not used to determine eligibility (since it is Ohio not federal law 

that specifies that a voter can vote only once). 

 Court relies on the presumption that Congress must be clear in order 

to alter the state-federal balance; thus, Congress would have been 

more clear if it intended to eliminate state control over polling 

location. 387 F.3d at 578. 

 But a provisional ballot must be provided to a voter, as HAVA’s 

purpose was to prevent on-the-spot denials of ballots to voters 

determined ineligible by precinct workers. 387 F.3d at 574. 

• Court believes that HAVA’s provisional voting was designed 

to compensate for the impossibility of having election 

officials with “perfect knowledge.” 387 F.3d at 570. Under 

this rationale, provisional voting is used when a voter’s 

eligibility in that precinct cannot be verified, but the voter 

insists that he/she is eligible because it is possible that the 

election officials do not have perfect information. Id. 

• State of Ohio ex rel. Mackey et al v. Blackwell et al, No. 85597, 2004 WL 2973976 

(Ohio App. 8 Dist. Dec. 22, 2004)

o ISSUES: equal protection issue & wrong precinct issue & how verification 

(against registration records) procedure should be conducted 

 Equal protection issue from different treatment on whether a voter 

should have a provisional ballot and different treatment on whether a 

provisional vote should be counted. 

• Claim that there were inconsistent standards for determining 

whether or not a voter received a provisional ballot in 

violation of the Equal Protection Clause. Original Action in 

Mandamus 2. 

• Claim that there were inconsistent standards for determining 

whether or not to count a provisional ballot in violation of the 

Equal Protection Clause. Original Action in Mandamus 2, 9. 

 Claim that votes cast in the wrong precinct should be counted given 

that many voters did not receive assistance to correct precinct, as 

required by Secretary of State’s directive. Original Action in 

Mandamus 3, 16-17. 

 Claim that provisional ballots lacking a signature, HAVA sticker, or 

other required information on the envelope were wrongfully rejected 

– allege that these are nonmaterial errors in violation of VRA. 

Original Action in Mandamus 6-7, 11, 14. 
12

 Claim that provisional ballots should be verified by hand against 

registration records rather than only against computerized records. 

Original Action in Mandamus 12-13. 

• Allege that database was incomplete – some registration 

forms were not indexed and accessible to poll workers. Id. 

• Allege that registration forms were erroneously processed. Id. 

o RESULT: Dismissed for failure to state a claim upon which relief can be 

granted. 2004 WL 2973976, at *2. 

Absentee voters who did not receive a ballot who wish to vote provisionally

• Colorado Common Cause v. Donetta Davidson, No. 04CV7709, 2004 WL 2360485 

(Colo. Dist. Ct. Oct. 18, 2004)

o ISSUE: wrong precinct; absentee voters getting provisional ballots 

 Lawsuit challenges a state guideline that prohibits anyone voting in 

the wrong precinct from casting a ballot in any race but the 

presidential election based on HAVA and the Constitution 

(fundamental rights challenge). 2004 WL 2360485, at *1. 

 Challenges state guideline that provisional ballots will not be 

counted if the voter applied for an absentee ballot based on HAVA 

and the Constitution (fundamental rights challenge). 2004 WL 

2360485, at *1. 

o RESULT: votes cast in the wrong precinct may only count for president 

and vice president; provisional votes cast by voters who applied for 

absentee ballots must be counted. 

o RATIONALE: 

 Court felt that Congress had no intent to eliminate precinct-based 

voting, a constitutional form of organizing voting; therefore, votes 

cast in the wrong precinct may not be counted for county-wide 

issues. 2004 WL 2360485, at *11. Court also felt that the legislative 

history behind HAVA’s passage supported this notion. Id. 

 Court felt that requiring voters to vote in the correct precinct is not an 

unconstitutional infringement on the right to vote. 2004 WL 

2360485, at *14. The impact of the requirement is further lessened by 

the fact that poll workers will direct the voter to the correct precinct. 

Id. In addition, the Court felt that there was a compelling interest in 

preventing voter fraud furthered by the precinct system. Id. 

• The Court left the door open to the possibility that state-wide 

voting may be possible after a state-wide computerized 

database is established in 2006. Id. 

 Court felt that not allowing voters who requested an absentee 

ballot to vote provisionally would conflict with the purpose of 

HAVA to ensure that registered and eligible voters are allowed to 

vote provisionally. 2004 WL 2360485, at *11, 12. 

• White v. Blackwell, et al. 

U.S. District Court for the Northern District of Ohio, Case No. 3:04CV 7689 

o ISSUE: absentee voters getting provisional ballots 
13

 Absentee voters who failed to receive absentee ballots in the mail 

who wish to vote provisionally at the polls under HAVA. 

• Claim under HAVA that the Secretary of State and Board 

of Elections interpreted HAVA incorrectly. Complaint 8. 

o RESULT: Anyone who shows up to the polls and asserts eligibility to 

vote shall be permitted to cast a provisional ballot, including those who 

previously requested an absentee ballot. Memorandum Opinion and Order 

3-4. 

o RATIONALE: HAVA, as interpreted in Sandusky County Democratic

Party, is clear, anyone who asserts eligibility to vote is able to receive a 

provisional ballot under HAVA. Memorandum Opinion 3-4. 

Equal protection – inconsistent treatment or distribution of provisional ballots

• Schering v. Blackwell 

U.S. District Court for the Southern District of Ohio, Case No. 1:04-cv-755. 

o ISSUE: equal protection issue 

 Plaintiffs allege that the process for evaluating provisional ballots in 

Ohio violates the Equal Protection Clause; want uniform standards for 

evaluating provisional ballots 

o RESULT: Plaintiffs filed a stipulated dismissal. 3/15/05 

o Case never reached opinion. 

• State of Ohio ex rel. Mackey et al v. Blackwell et al, No. 85597, 2004 WL 2973976 

(Ohio App. 8 Dist. Dec. 22, 2004)

o ISSUES: equal protection issue & wrong precinct issue & how verification 

(against registration records) procedure should be conducted 

 Equal protection issue from different treatment on whether a voter 

should have a provisional ballot and different treatment on whether a 

provisional vote should be counted. 

• Claim that there were inconsistent standards for determining 

whether or not a voter received a provisional ballot in 

violation of the Equal Protection Clause. Original Action in 

Mandamus 2. 

• Claim that there were inconsistent standards for determining 

whether or not to count a provisional ballot in violation of the 

Equal Protection Clause. Original Action in Mandamus 2, 9. 

 Claim that votes cast in the wrong precinct should be counted given 

that many voters did not receive assistance to correct precinct, as 

required by Secretary of State’s directive. Original Action in 

Mandamus 3, 16-17. 

 Claim that provisional ballots lacking a signature, HAVA sticker, or 

other required information on the envelope were wrongfully rejected 

– allege that these are nonmaterial errors in violation of VRA. 

Original Action in Mandamus 6-7, 11, 14. 

 Claim that provisional ballots should be verified by hand against 

registration records rather than only against computerized records. 

Original Action in Mandamus 12-13. 
14

• Allege that database was incomplete – some registration 

forms were not indexed and accessible to poll workers. Id. 

• Allege that registration forms were erroneously processed. Id. 

o RESULT: Dismissed for failure to state a claim upon which relief can be 

granted. 2004 WL 2973976, at *2. 

Provisional ballots which were incomplete in some way (not signed, do not display 

election district, etc.)

• Panio v. Sunderland, 4 N.Y.3d 123, 824 N.E.2d 488 (N.Y. 2005)

o ISSUES: wrong precinct; voters who voted provisionally because other 

voters had signed poll ledger in their place; provisional ballots in which the 

envelope did not identify the election district of the voter 

 Claims all based on N.Y. election law – once case got to Supreme 

Court, no claims based on Constitution or HAVA. 

o RESULT: 

 Provisional votes in which the voter was in the correct polling place, 

but wrong district should be counted; voters in the wrong polling 

place and wrong district should not be counted. 4 N.Y. 3d at 128. 

 Provisional ballots cast by voters who claimed that another voter 

voted in his/her place and signed the precinct ledger should not be 

counted. 4 N.Y. 3d at 129. 

 Provisional ballots in which the election district was not identified on 

the envelope should be counted. 4 N.Y. 3d at 129. 

o RATIONALE: provisional ballots should be counted if the ballots were in 

dispute only as a result of ministerial errors by the election board. 4 N.Y. 3d 

at 129. 

 Ballots cast in the correct polling place but wrong district were 

counted because they were assumed to be the result of ministerial 

error; the election officers should have directed the voter to the 

correct voting table. 4 N.Y. 3d at 128. Ballots cast in the wrong 

polling place and district were not counted because it would be 

unreasonable to require poll workers to ensure that voters are at the 

correct polling site. Id. 

 Provisional votes cast by voters who claimed another voter had voted 

in their place earlier were not counted because of the possibility of 

fraud. 4 N.Y. 3d at 129. 

 Provisional ballots lacking the election district on the envelope were 

counted because they were cast in the correct election district, and 

mishandling by election officials caused the ballots to become 

unidentifiable with a district (election officials placed post-it notes on 

the ballots containing the missing information, but the notes later fell 

off). 4 N.Y. 3d at 129. 

o DISPOSITION: application for rehearing denied – 2/7/05 
15

• Borders v. King County

Superior Court, Chelan County, No. 05-2-00027-3 [election contest filed 1/7/05 

contesting the certification of the results of the election, decision 6/6/05] 

o ISSUES: provisional ballots incorrectly tabulated with regular ballots before 

being verified; verification for provisional ballots; provisional ballots without 

labels. Court’s Oral Decision 6/6. 

 Provisional ballots cast directly into electronic voting machine or 

ballot tabulated before it was verified. Court’s Oral Decision 6/6. 

 No signature or registration verification conducted for certain 

provisional ballots. Court’s Oral Decision 6/6. 

o RESULT: election not overturned – even though illegal votes cast – no proof 

who they were cast for or whether the voter voted in the particular race at all. 

Court’s Oral Decision 6/6. 

o RATIONALE: 

 Cannot prove whether a voter voted for a particular race; do not know 

which ballots were illegal. Court’s Oral Decision 6/6. 

 No evidence of actual ballot stuffing. Court’s Oral Decision 6/6. 

 Reconciliation issues and irregularities are common in elections. 

Court’s Oral Decision 6/6. 

 No evidence the irregularities were intentional. Court’s Oral Decision 

6/6. 

 Probability techniques (proportional deduction) used to predict who 

an illegal voter voted for are not generally accepted scientific 

techniques. Court’s Oral Decision 6/6. 

 Judicial restraint from interfering with elections. Court’s Oral 

Decision 6/6. 

 Precedent – challenge under a WA statute, which previously had been 

interpreted to require direct or indirect wrongdoing by someone 

intending for the irregularity to help one candidate. Court’s Oral 

Decision 6/6. 

Requirement for provisional ballot to be counted – ID required

• Bay County Democratic Party, et al v. Land et al, 347 F. Supp. 2d 404 (E.D. Mich. 

2004)

o ISSUE: wrong precinct; identification requirement for ballot to count 

 Lawsuit challenges Secretary of State’s directive that votes cast in the 

wrong precinct but correct township, city, or village should not be 

counted based on HAVA. 347 F. Supp. 2d at 427-34. 

 Lawsuit challenges Secretary of State’s directive that first time voters 

should be required to provided identification within six days of 

election day in order for their votes to count under HAVA, the 

Fourteenth Amendment to the Constitution, Michigan election law, 

and the Equal Protection Clause of the Michigan Constitution. 347 F. 

Supp. 2d at 434-35. 

o RESULT [but later overruled by Sixth Circuit]: votes cast in the wrong 

precinct but correct city, village, or township should be counted; 
16

identification may be required of provisional voters after the election in order 

for their votes to count. 347 F. Supp. 2d at 438. 

o RATIONALE: 

 With regard to the wrong precinct issue, the Court relies on the 

District Court decision in Sandusky County Democratic Party v. 

Blackwell, 339 F. Supp. 2d 975, 992-93 (N.D. Ohio 2004). Bay

County, 347 F. Supp. 2d at 431-32. 

 The Court also relies on the “plain language” of HAVA – votes are to 

be counted in accordance with state law (dictates the procedure of 

counting); whether or not votes are counted is decided under HAVA; 

votes under HAVA are counted if the voter is “eligible” to vote. 347 

F. Supp. 2d at 431-32. 

 With regard to the identification requirement, the Court found that the 

requirement was reasonable; that preventing voter fraud is a 

compelling interest; and that the requirement is applied uniformly and 

in a nondiscriminatory manner. 347 F. Supp. 2d at 435. 

o OVERRULED: 6th Circuit ruled that votes in the wrong precinct should not 

be counted and interpreted “jurisdiction,” “eligible,” and the HAVA 

provision concerning provisional ballots differently. Sandusky County

Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004). 

• The League of Women Voters of Ohio et al v. Blackwell, 340 F. Supp. 2d 823 

(N.D. Ohio 2004)

o ISSUES: wrong precinct & identification requirement for ballot to count 

 Wrong precinct issue. 340 F. Supp. 2d at 824. 

 Whether identification provided on election day should be required of 

provisional voters (voting provisionally because of ID requirement) in 

order for ballot to count. 340 F. Supp. 2d at 828. 

• Claim that it will cause provisional ballots voted by voters 

without identification (who cannot remember their numerical 

identifier, do not have a numerical identifier, or cannot return 

to the polls prior to closing) to be rejected. 

o Fourteenth Amendment fundamental rights claim. 

o Claim under HAVA based on interpretation of the 

“eligible” language. 

o RESULT: 

 Wrong precinct issue decided already in Sandusky County 

Democratic Party, and even though it was on appeal at the time of the 

decision, the Judge decided that the relief granted (or not) from that 

case would be sufficient to serve the interests of these plaintiffs as 

well (he did not reach a decision on the issue). 340 F. Supp. 2d at 

824. 

 Identification or oral recitation of identification number (DL or SS) 

may be required before the polls close in order for a provisional ballot 

to count. 340 F. Supp. 2d at 831. 
17

o RATIONALE: 

 Identification may be required to preserve the integrity of elections 

and prevent voter fraud, which outweighs the interest in ensuring that 

every ballot count. 340 F. Supp. 2d at 829. Further, there is no less 

burdensome way to detect and prevent election fraud. Id. 

 Identification may be required because HAVA allows it; the 

requirement affects a small number of voters (registered by mail, 

voting for the first time, have no identification, cannot recite a 

numerical identifier); it is easy to obtain the identification information 

(telephone, quick return home); and notice is given of the requirement 

on the registration form. 340 F. Supp. 2d at 830. 

 Identification may be required because HAVA’s language about 

“eligible under State law to vote” only means that the name on the 

registration form is eligible to vote. 340 F. Supp. 2d at 831. A voter 

must still prove that he/she is the same person as the person on the 

registration form, who is “eligible” to vote under State law, and 

proving identity is a reasonable burden. Id. 

Verification procedure for provisional ballots

• State of Ohio ex rel. Mackey et al v. Blackwell et al, No. 85597, 2004 WL 2973976 

(Ohio App. 8 Dist. Dec. 22, 2004)

o ISSUES: equal protection issue & wrong precinct issue & how verification 

(against registration records) procedure should be conducted 

 Equal protection issue from different treatment on whether a voter 

should have a provisional ballot and different treatment on whether a 

provisional vote should be counted. 

• Claim that there were inconsistent standards for determining 

whether or not a voter received a provisional ballot in 

violation of the Equal Protection Clause. Original Action in 

Mandamus 2. 

• Claim that there were inconsistent standards for determining 

whether or not to count a provisional ballot in violation of the 

Equal Protection Clause. Original Action in Mandamus 2, 9. 

 Claim that votes cast in the wrong precinct should be counted given 

that many voters did not receive assistance to correct precinct, as 

required by Secretary of State’s directive. Original Action in 

Mandamus 3, 16-17. 

 Claim that provisional ballots lacking a signature, HAVA sticker, or 

other required information on the envelope were wrongfully rejected 

– allege that these are nonmaterial errors in violation of VRA. 

Original Action in Mandamus 6-7, 11, 14. 

 Claim that provisional ballots should be verified by hand against 

registration records rather than only against computerized records. 

Original Action in Mandamus 12-13. 

• Allege that database was incomplete – some registration 

forms were not indexed and accessible to poll workers. Id. 

• Allege that registration forms were erroneously processed. Id. 
18

o RESULT: Dismissed for failure to state a claim upon which relief can be 

granted. 2004 WL 2973976, at *2. 

• Borders v. King County

Superior Court, Chelan County, No. 05-2-00027-3 [election contest filed 1/7/05 

contesting the certification of the results of the election, decision 6/6/05] 

o ISSUES: provisional ballots incorrectly tabulated with regular ballots before 

being verified; verification for provisional ballots; provisional ballots without 

labels. Court’s Oral Decision 6/6. 

 Provisional ballots cast directly into electronic voting machine or 

ballot tabulated before it was verified. Court’s Oral Decision 6/6. 

 No signature or registration verification conducted for certain 

provisional ballots. Court’s Oral Decision 6/6. 

o RESULT: election not overturned – even though illegal votes cast – no proof 

who they were cast for or whether the voter voted in the particular race at all. 

Court’s Oral Decision 6/6. 

o RATIONALE: 

 Cannot prove whether a voter voted for a particular race; do not know 

which ballots were illegal. Court’s Oral Decision 6/6. 

 No evidence of actual ballot stuffing. Court’s Oral Decision 6/6. 

 Reconciliation issues and irregularities are common in elections. 

Court’s Oral Decision 6/6. 

 No evidence the irregularities were intentional. Court’s Oral Decision 

6/6. 

 Probability techniques (proportional deduction) used to predict who 

an illegal voter voted for are not generally accepted scientific 

techniques. Court’s Oral Decision 6/6. 

 Judicial restraint from interfering with elections. Court’s Oral 

Decision 6/6. 

 Precedent – challenge under a WA statute, which previously had been 

interpreted to require direct or indirect wrongdoing by someone 

intending for the irregularity to help one candidate. Court’s Oral 

Decision 6/6. 

• McDonald, et al v. Secretary of State, 103 P.3d 722 (Wash. 2004) [First Supreme 

Court review 12/14/04] 

o ISSUE: signature comparison; request for recanvassing of previously 

rejected ballots 

 Equal Protection Clause claim based on a disparity between 

signature-checking standards. 153 P.3d at 724. 

 Procedure for comparing signatures used in first canvass did not 

comport with Washington’s statutory and regulatory scheme. 153 

P.3d at 724. 

o RESULT: signature verification procedure in first canvass ok; no equal 

protection violation based on disparity between rejected provisional ballots; 

ballots may only be retabulated if they were counted or tallied in the previous 

count. 
19

o RATIONALE: 

 Signature verification procedure used in first canvass was sufficient, 

as voters were permitted to correct or update signatures until the day 

prior to the canvass (Nov. 16). 153 P.3d at 724. 

 No equal protection violation, as the petitioners only established a 

disparity in ballots rejected, not actual disparity in procedures. Also 

because they did not allege any particular procedure was faulty. 153 

P.3d at 724. 

• Washington State Democratic Party v. King County Records, Elections & 

Licensing Services Division

Superior Court, King County, 04-2-36048-0 SEA [Decision 11/16/04] 

o ISSUE: verifying ballots/disclosure of voters in risk of rejection for signature 

problems 

 King County elections officials ordered to give the State Democratic 

Party the names of 929 voters whose provisional ballots may be 

discarded because of signature problems. Memorandum Opinion 2. 

• Challenge under Public Disclosure Act. Memorandum 

Opinion 2-3. 

o County argued that HAVA prevented disclosure. Id. 

• Challenge under Equal Protection Clause. Memorandum 

Opinion 4. 

 Republican Party intervened and wanted provisional votes submitted 

by third parties (such as the Democratic Party) to be rejected, 

requiring voters to come down to the county board to verify their 

questioned signature. Memorandum Opinion 5. 

o RESULT: Democrats were entitled to disclosure of the names so that the 

voters could be contacted to verify their ballots; equal protection claim 

dismissed. Votes brought in by third parties should be counted. 

o RATIONALE: 

 Identity of voter or disposition of provisional ballots, but not votes 

cast, are subject to Public Disclosure Act. Memorandum Opinion 4. 

 Disclosure of voters’ names leads to greater notice, which is the goal. 

Memorandum Opinion 4. 

 Equal protection claim – dispute is premature, and the evidence is 

hypothetical. Memorandum Opinion 4. 

 There is no evidence of fraud, no showing that King County is acting 

illegally, best protection against fraud is public disclosure, so 

Republicans’ claim is dismissed. Memorandum Opinion 6. 

Provisional v. regular ballot for voter who properly registered but was left off election

rolls

• Citizens Alliance for Secure Elections v. Michael Vu 

U.S. District Court for the Northern District of Ohio, Case No. 1:04CV2147 

o ISSUE: whether voters who have moved but not updated their registration 

should receive a provisional ballot or a regular ballot; whether voters 

inadvertently left off registration rolls should receive a regular or provisional 

ballot. 
20

 Plaintiffs claim that voters who have moved within the state but not 

updated their registration should not have to vote a provisional ballot 

at their new voting location but should instead vote a regular ballot. 

(Challenge guideline as in conflict with Ohio statute). Order Denying 

Plaintiffs' Motion for Temporary Restraining Order 2. 

 Claim that Board of Elections violated the NVRA when they failed to 

properly process voter registration applications and properly notify 

applicants of the status of their incomplete (yet timely) applications. 

Motion for a Temporary Restraining Order, Memorandum in Support 

2-3. 

• Allege clerical errors were made in transcribing registration 

cards to computer records, which resulted in applications 

being considered incomplete (and thus, will force those voters 

to vote a provisional ballot rather than a regular ballot). 

• Allege that Board neglected to register voters whose 

applications were timely submitted. 

 Claim that the Board of Elections actions concerning these 

“incomplete” and lost registrations disenfranchise voters in violation 

of the Voting Rights Act. Motion Memorandum in Support 7. 

o RESULT: Provisional ballot procedure is sufficient to allow voters who 

were inadvertently removed from the registration list or should be on the 

registration list an opportunity to vote – so voters who have moved or 

were erroneously left off the list are permitted to vote provisionally. 

o RATIONALE: Provisional voting system seems reasonably calculated to 

remedy any situation in which a voter was left off the registered voter lists. 

Order 4. 

o Plaintiffs dismissed their case without prejudice after their request for a 

temporary restraining order was rejected. Plaintiff’s Notice Of Voluntary 

Dismissal Without Prejudice. 

Voters who have moved and not updated their registration

• Citizens Alliance for Secure Elections v. Michael Vu 

U.S. District Court for the Northern District of Ohio, Case No. 1:04CV2147 

o ISSUE: whether voters who have moved but not updated their registration 

should receive a provisional ballot or a regular ballot; whether voters 

inadvertently left off registration rolls should receive a regular or provisional 

ballot. 

 Plaintiffs claim that voters who have moved within the state but not 

updated their registration should not have to vote a provisional ballot 

at their new voting location but should instead vote a regular ballot. 

(Challenge guideline as in conflict with Ohio statute). Order Denying 

Plaintiffs' Motion for Temporary Restraining Order 2. 

 Claim that Board of Elections violated the NVRA when they failed to 

properly process voter registration applications and properly notify 

applicants of the status of their incomplete (yet timely) applications. 

Motion for a Temporary Restraining Order, Memorandum in Support 

2-3. 
21

• Allege clerical errors were made in transcribing registration 

cards to computer records, which resulted in applications 

being considered incomplete (and thus, will force those voters 

to vote a provisional ballot rather than a regular ballot). 

• Allege that Board neglected to register voters whose 

applications were timely submitted. 

 Claim that the Board of Elections actions concerning these 

“incomplete” and lost registrations disenfranchise voters in violation 

of the Voting Rights Act. Motion Memorandum in Support 7. 

o RESULT: Provisional ballot procedure is sufficient to allow voters who 

were inadvertently removed from the registration list or should be on the 

registration list an opportunity to vote – so voters who have moved or 

were erroneously left off the list are permitted to vote provisionally. 

o RATIONALE: Provisional voting system seems reasonably calculated to 

remedy any situation in which a voter was left off the registered voter lists. 

Order 4. 

o Plaintiffs dismissed their case without prejudice after their request for a 

temporary restraining order was rejected. Plaintiff’s Notice Of Voluntary 

Dismissal Without Prejudice. 

Provisional ballots cast by voters who claimed that someone else voted in their place 

and signed precinct record

• Panio v. Sunderland, 4 N.Y.3d 123, 824 N.E.2d 488 (N.Y. 2005)

o ISSUES: wrong precinct; voters who voted provisionally because other 

voters had signed poll ledger in their place; provisional ballots in which the 

envelope did not identify the election district of the voter 

 Claims all based on N.Y. election law – once case got to Supreme 

Court, no claims based on Constitution or HAVA. 

o RESULT: 

 Provisional votes in which the voter was in the correct polling place, 

but wrong district should be counted; voters in the wrong polling 

place and wrong district should not be counted. 4 N.Y. 3d at 128. 

 Provisional ballots cast by voters who claimed that another voter 

voted in his/her place and signed the precinct ledger should not be 

counted. 4 N.Y. 3d at 129. 

 Provisional ballots in which the election district was not identified on 

the envelope should be counted. 4 N.Y. 3d at 129. 

o RATIONALE: provisional ballots should be counted if the ballots were in 

dispute only as a result of ministerial errors by the election board. 4 N.Y. 3d 

at 129. 

 Ballots cast in the correct polling place but wrong district were 

counted because they were assumed to be the result of ministerial 

error; the election officers should have directed the voter to the 

correct voting table. 4 N.Y. 3d at 128. Ballots cast in the wrong 

polling place and district were not counted because it would be 

unreasonable to require poll workers to ensure that voters are at the 

correct polling site. Id. 
22

 Provisional votes cast by voters who claimed another voter had voted 

in their place earlier were not counted because of the possibility of 

fraud. 4 N.Y. 3d at 129. 

 Provisional ballots lacking the election district on the envelope were 

counted because they were cast in the correct election district, and 

mishandling by election officials caused the ballots to become 

unidentifiable with a district (election officials placed post-it notes on 

the ballots containing the missing information, but the notes later fell 

off). 4 N.Y. 3d at 129. 

o DISPOSITION: application for rehearing denied – 2/7/05 

Disclosure to a political party of provisional votes in danger of being rejected 

• Washington State Democratic Party v. King County Records, Elections & 

Licensing Services Division

Superior Court, King County, 04-2-36048-0 SEA [Decision 11/16/04] 

o ISSUE: verifying ballots/disclosure of voters in risk of rejection for signature 

problems 

 King County elections officials ordered to give the State Democratic 

Party the names of 929 voters whose provisional ballots may be 

discarded because of signature problems. Memorandum Opinion 2. 

• Challenge under Public Disclosure Act. Memorandum 

Opinion 2-3. 

o County argued that HAVA prevented disclosure. Id. 

• Challenge under Equal Protection Clause. Memorandum 

Opinion 4. 

 Republican Party intervened and wanted provisional votes submitted 

by third parties (such as the Democratic Party) to be rejected, 

requiring voters to come down to the county board to verify their 

questioned signature. Memorandum Opinion 5. 

o RESULT: Democrats were entitled to disclosure of the names so that the 

voters could be contacted to verify their ballots; equal protection claim 

dismissed. Votes brought in by third parties should be counted. 

o RATIONALE: 

 Identity of voter or disposition of provisional ballots, but not votes 

cast, are subject to Public Disclosure Act. Memorandum Opinion 4. 

 Disclosure of voters’ names leads to greater notice, which is the goal. 

Memorandum Opinion 4. 

 Equal protection claim – dispute is premature, and the evidence is 

hypothetical. Memorandum Opinion 4. 

 There is no evidence of fraud, no showing that King County is acting 

illegally, best protection against fraud is public disclosure, so 

Republicans’ claim is dismissed. Memorandum Opinion 6. 
23

Provisional ballots incorrectly tabulated with regular ballots

• Borders v. King County

Superior Court, Chelan County, No. 05-2-00027-3 [election contest filed 1/7/05 

contesting the certification of the results of the election, decision 6/6/05] 

o ISSUES: provisional ballots incorrectly tabulated with regular ballots before 

being verified; verification for provisional ballots; provisional ballots without 

labels. Court’s Oral Decision 6/6. 

 Provisional ballots cast directly into electronic voting machine or 

ballot tabulated before it was verified. Court’s Oral Decision 6/6. 

 No signature or registration verification conducted for certain 

provisional ballots. Court’s Oral Decision 6/6. 

o RESULT: election not overturned – even though illegal votes cast – no proof 

who they were cast for or whether the voter voted in the particular race at all. 

Court’s Oral Decision 6/6. 

o RATIONALE: 

 Cannot prove whether a voter voted for a particular race; do not know 

which ballots were illegal. Court’s Oral Decision 6/6. 

 No evidence of actual ballot stuffing. Court’s Oral Decision 6/6. 

 Reconciliation issues and irregularities are common in elections. 

Court’s Oral Decision 6/6. 

 No evidence the irregularities were intentional. Court’s Oral Decision 

6/6. 

 Probability techniques (proportional deduction) used to predict who 

an illegal voter voted for are not generally accepted scientific 

techniques. Court’s Oral Decision 6/6. 

 Judicial restraint from interfering with elections. Court’s Oral 

Decision 6/6. 

 Precedent – challenge under a WA statute, which previously had been 

interpreted to require direct or indirect wrongdoing by someone 

intending for the irregularity to help one candidate. Court’s Oral 

Decision 6/6. 

Re-canvassing ballots previously rejected 

• McDonald, et al v. Secretary of State, 103 P.3d 722 (Wash. 2004) [First Supreme 

Court review 12/14/04] 

o ISSUE: signature comparison; request for recanvassing of previously 

rejected ballots 

 Equal Protection Clause claim based on a disparity between 

signature-checking standards. 153 P.3d at 724. 

 Procedure for comparing signatures used in first canvass did not 

comport with Washington’s statutory and regulatory scheme. 153 

P.3d at 724. 

o RESULT: signature verification procedure in first canvass ok; no equal 

protection violation based on disparity between rejected provisional ballots; 

ballots may only be retabulated if they were counted or tallied in the previous 

count. 

o RATIONALE: 
24

 Signature verification procedure used in first canvass was sufficient, 

as voters were permitted to correct or update signatures until the day 

prior to the canvass (Nov. 16). 153 P.3d at 724. 

 No equal protection violation, as the petitioners only established a 

disparity in ballots rejected, not actual disparity in procedures. Also 

because they did not allege any particular procedure was faulty. 153 

P.3d at 724. 

• Washington State Republican Party v. King County Division of Records, 103 P.3d 

725 (Wash. 2004) [Second Supreme Court review 12/22/04] 

o ISSUE: decision to recanvass ballots previously rejected to see if their 

rejection was erroneous 

 County canvassing board wished to recanvass provisional ballots 

coded “no signature on file” because the ballots had only been 

checked against the electronic database, not the paper records, the old 

system of registration, and records at the Secretary of State. 103 P.3d 

at 725-26. Challenge under state recanvassing statute. Id. 

o RESULT: The ballots incompletely canvassed may be recanvassed pursuant 

to Washington law. 103 P.3d at 728. 

o RATIONALE: 

 The ballots were never fully canvassed (because the secondary 

signature checks against other sources were never done), and the 

Board can correct this error through recanvassing. 103 P.3d at 727-

28. This type of error is what the recanvassing statute is designed for. 

Id.