2023 Delaware Code › Title 15 - Elections › Chapter 49. CONDUCT OF ELECTION › Subchapter II. Regulations Governing Conduct of Elections During Hours of Voting › § 4948. Provisional ballots.

§ 4948. Provisional ballots.
(a) Provisional ballots shall be used in primary and general elections conducted under the provisions of this title. Provisional ballots shall not be used in public school elections or municipal elections unless specifically authorized in Title 14, Title 15 and/or the respective town or city charter.
(b) A person claiming to be properly registered in an election district, but whose eligibility to vote at that election district cannot be determined, shall be entitled to vote a provisional ballot. Election officers shall inform a person who is not being permitted to vote for whatever reason that the person may cast a provisional ballot in that election. The inspector shall return all voted provisional ballots to the Department on the night of the election.
(c) Persons voting a provisional ballot shall present proof of identity and address to the election officers. The type of ID shown by the voter shall be annotated on the provisional ballot envelope. If the person does not show proof of identity or address, the person shall be permitted to vote by provisional ballot and the fact that the person did not show proof of identity and/or address shall be annotated on the provisional ballot envelope.
(d) If the Superior Court or another court of competent jurisdiction orders that some or all polling places in a county of the state be kept open beyond the normal time for closing, all persons who arrive to vote at the polling place or places ordered to be kept open after the normal time for closing shall vote by provisional ballot. The election officers shall keep such ballots separate and return them to the Department on the night of the election.
(e) Provisional ballots shall be as much as possible in the same form as absentee ballots except that only federal offices shall be listed and they shall be labeled as provisional ballots. For general and special elections, the departments shall provide a minimum of 10 blank provisional ballots to each election district, a minimum of 20 blank provisional ballots to election districts with 3 or more assigned voting machines, and a minimum of 30 blank provisional ballots to election district with 4 or more assigned voting machines. For a primary election, each department shall develop a standard appropriate for the respective primary. The Department shall deliver additional provisional ballots, envelopes, instructions or voter information sheets to the polling place for an election district when notified by an election officer from the district that the supply of some or all of the provisional ballot materials is very low.
(f) Election officers shall give whatever assistance is requested by a voter who is voting by provisional ballot. When that assistance includes marking or assisting in marking the person's ballot, 2 election officers with different political party affiliations shall provide that assistance.
(g) A voter who spoils that voter's own ballot shall, upon request, be given a replacement ballot after surrendering the spoiled ballot.
(h) Tallying provisional ballots.
(1) The day following an election in which provisional ballots were used, the Department shall meet to examine the provisional ballots, determine which of the ballots should be tallied in accordance with the rules stated below, and then tally those ballots.
(2) The Attorney General shall appoint a Deputy Attorney General to advise the Department as requested during the provisional ballot tallying process.
(3) The county chairperson of each political party with a candidate on a provisional ballot within the county may appoint in writing 1 observer to be in the room where provisional ballots are being reviewed and tallied.
(4) The Department shall sit until the disposition of every provisional ballot has been determined. The Department shall establish an appropriate schedule of breaks, meals and rest periods.
(5) Where the provisional ballot affidavit is incomplete, the ballot shall be set aside, not opened and the votes not tallied. An incomplete affidavit shall be defined as one that does not include all of the following information:
full name, complete address, political party affiliation (primary elections only), and date of birth.
(6) Where the person who voted by provisional ballot did not show suitable identification at the polling place, the ballot shall be set aside, not opened and the votes not tallied.
(7) Provisional ballots cast by persons who are not registered to vote in the state or who are not registered to vote in the election district in which they were cast shall be set aside, not opened and the votes not tallied.
(8) A provisional ballot cast by a person who is registered to vote and who has moved into the election district shall be counted if the person voted at the correct polling place for that person's new address.
(9) The Department shall tally the provisional ballots that meet the above criteria. After all of the provisional ballots determined as meeting the above criteria have been tallied, the Department shall deliver 1 copy of the provisional ballot tally sheet for each Election District, all the provisional ballots cast in the election, and all affidavits, envelopes and supporting documentation to the Prothonotary.
(i) Post election processing and notification.
(1) As soon as practical, but not later than 30 days following an election in which provisional ballots were used, the Department shall enter the appropriate data into a free access system so that a person who voted by provisional ballot may determine whether or not that person's ballot was counted, and if it was not counted, the reason or reasons for which it was not counted.
(2) The Department shall use the provisional ballot affidavit as authority to register a person to vote who voted by provisional ballot in an election and who is not already registered to vote providing that the minimum information required to register a person to vote is provided. The provisional ballot envelope shall be used to transfer a registered voter's address and/or update the registered voter's name when the address and/or name is different than the information on the person's voter registration record.
74 Del. Laws, c. 168, §  7;  70 Del. Laws, c. 186, §  1;  75 Del. Laws, c. 287, §  2;  77 Del. Laws, c. 227, §  61;  79 Del. Laws, c. 275, §  78;