Every Ballot is a Person. Every Person Has a Story. Every Story Must Be Told. Provisional Ballots Will Be Heard Today.




One side in the election contest has an interest in keeping EVEN LEGITIMATE provisional ballots from being counted. Its actions may be legal -- but we OK with them?

One side in the election contest has an interest in keeping even LEGITIMATE provisional ballots from being counted. Such actions may be legal — but must we respect them?

[1]  The Fine Line Between Disgusting and Illegal

This post follows earlier posts and comments that address various political practices that the pro-Disney forces in Anaheim use to win elections.  (Of course, they are not unique to Anaheim or to Disney.)   By and large, they are legal — and for some readers the discussion of them will stop there.  Others will be bothered by the degree that they are ethically questionable — and especially at how they serve to undercut the legitimate interests of the poorer and browner people who will largely inherit Anaheim’s future.

As I’ve argued in the “Disney Candidates So White” post that I seem to refuse to let fade away, among other writings, we can’t outlaw these practices.  Disney and its allies can:

  • spend as much as they want to on political campaigns if they structure donations in the right way
  • offer gross and unfair misrepresentations in mailers and ads, within broad bounds of free speech, that their targets won’t have the funds to answer
  • hire one-time Latino leaders like Nativo Lopez to gin up supposed grassroots Latino pro-Brandman groups
  • coordinate to run candidates who have no chance to win, no in-person campaigns to speak of, and no real policy initiatives to promote — such as Linda Lobatos and Jennifer Rivera in District 3 and Joe Moreno in District 4 — to split the Latino vote and help white candidates win

(among other tactics) and no one can stop them.  These are their rights.  The law cannot be invoked to stop them.  The solution lies not in the law, but in social mores and taboos — in other words, our cultivating a collective sense of disgust that causes such tactics to backfire.  We in the formal and informal media try to get the stories out; the role of voters, if they’re so disposed, is to be disgusted with them and act on that disgust.

That is legal too — and fundamentally it’s the only thing that works.  Some people do things that should earn them a a permanent brand that renders them unacceptable partners for anyone.  Curt Pringle using poll guards to frighten Latino voters away from the polls is a good example — but of course that’s not how it has worked.  There has been money to be made, and that leads greedy people who need assistance from bad people to overlook past transgressions.

But sometimes the legal use of techniques of suppression can shade into the illegal.  Any amount of disgust and contempt for wrongdoers among voters doesn’t matter if those voters can’t get their votes cast and counted.  The “poll guards” episode was a was of keeping them from being cast.  Today, when the first batch of provisional ballots will be considered in Anaheim (and I presume elsewhere), is the day for repressive forces to keep them from being counted.

[2]  The Provisional Ballot Process

(Readers who are only interested in the juicy bits, and not in the background and process of provisional voting, may want to skip directly down to Section 3.)

The Provisional Ballot process was established as part of the Help America Vote Act of 2002 (HAVA), which gives voters the right to cast a provisional ballot if:

  • The voter’s name does not appear on the official list of registered voters; or
  • An election official asserts that the voter is not eligible to vote.

Here’s what the California Secretary of State has to say about the process:

Provisional Voting

If your name is not on the voter list at your polling place, you have the right to vote a provisional ballot.

What Is a Provisional Ballot?

A provisional ballot is a regular ballot that is placed in a special envelope prior to being put in the ballot box.

Who Casts a Provisional Ballot?

Provisional ballots are ballots cast by voters who:

  • Believe they are registered to vote even though their names are not on the official voter registration list at the polling place.
  • Vote by mail but did not receive their ballot or do not have their ballot with them, and instead want to vote at a polling place.

What Happens After You Cast a Provisional Ballot?

Your provisional ballot will be counted after elections officials have confirmed that you are registered to vote in that county and you did not already vote in that election.

You may vote a provisional ballot at any polling place in the county in which you are registered to vote, however, only the elections contests you are eligible to vote for will be counted.

How Can You Check The Status of Your Provisional Ballot?

Every voter who casts a provisional ballot has the right to find out from their county elections official if the ballot was counted and, if not, the reason why it was not counted.

Visit www.sos.ca.gov/elections/ballot-status for a list of county contacts and information on how to check the status of your provisional ballot.

History Behind Provisional Voting in California

While provisional voting may be relatively new in some areas of the country, California’s provisional voting statutes have been in effect since 1984.

Provisional voting exists in California for two fundamental reasons:

First, provisional voting ensures that no properly registered voter is denied their right to cast a ballot if that voter’s name is not on the polling place roster due to a clerical, processing, computer, or other error.

Second, provisional voting allows elections officials to ensure that no voter votes twice, either intentionally or inadvertently, in a given election.

The most common circumstances when an elections official will ask a voter to cast a provisional ballot are:

  • First-time voters. Under federal law, a person who is voting for the first time in a federal election is required to provide proof of identification, even if their name is on the polling place roster. If the voter cannot provide proof of identification, the voter will be asked to cast a provisional ballot. The elections official will verify the voter’s eligibility by comparing their signature on the provisional ballot envelope with the signature on their voter registration form and if the signatures match, then the ballot will be counted. (Elections Code sections 14310(c), 15350, and 3019.)
  • Vote-by-mail voters who appear in person. In this instance, the voter’s name is on the polling place roster and the roster notes the voter requested a vote-by-mail ballot. However, the voter states they didn’t receive the ballot, lost the ballot, or spoiled the ballot and doesn’t have it with them. After the voter casts a provisional ballot, the elections official will check the records to ensure that the voter did not cast their vote-by-mail ballot. If this is the case and the voter’s signature on the provisional ballot envelope matches the signature on the voter’s registration card, then the voter’s provisional ballot will be counted. (Elections Code sections 3016, 14310(f), 15350, 15100 et seq.) If the voter did vote and return their vote-by-mail ballot before the close of polls on Election Day, then the vote-by-mail ballot will be counted and the provisional ballot will not be counted. If the voter did vote and return their vote-by-mail ballot but failed to sign the vote-by-mail ballot envelope, then the voter’s provisional ballot will be counted, provided they complied with the instructions associated with the provisional ballot.
  • Voters who have moved within their county without re-registering to vote. The voter’s name is not on the polling place roster because they moved within the county but did not re-register to vote. This also happens when a voter updates their driver’s license with the Department of Motor Vehicles (DMV) but the DMV’s computer system doesn’t update the voter’s registration information, as it is required to do by law. In either instance, the voter is entitled to vote a provisional ballot at the polling place based on their current address. The elections official is required to count the ballot if the voter’s signature on the provisional ballot envelope matches the signature on the voter’s prior registration form. The elections official is then required to re-register the voter at their new address for all future elections. (Elections Code sections 14310, 14311, 15350, 15100 et seq.)
  • Voters who are not on the polling place roster for an unknown reason. Should this occur, the elections official will check the county’s official registration records after Election Day. If the voter was properly registered to vote in the county and in the precinct in which they voted, their provisional ballot will be counted. If the voter was registered to vote at another address in the county, their votes will be counted in the races they voted on as if they were voting in their home precinct (i.e., their votes for U.S. President, statewide, and countywide measures will be counted, but their votes in a city council race may not be counted if the precinct they’re registered in is in a different city council district than the one in which they cast a ballot). If the voter is not registered to vote or is registered to vote in another county or state, their ballot will not be counted in part or in whole. (Elections Code section 14310(c)(3).

Both federal and state law permit any voter who cast a provisional ballot to find out if their ballot was counted and Elections Code section 2142 gives voters the right to go to court in order to compel county elections officials to register them to vote and to count their ballot.

No provisional ballot is counted or precluded from being counted until the elections official goes through the detailed process to determine whether a voter’s provisional ballot should be counted. (Elections Code sections 14310-14311, 15350, and 15100-15112.)

Equally important, every provisional ballot — whether it is counted or rejected — and provisional ballot envelope is kept by the the elections official for a minimum of 22 months for every election in which a candidate for federal office is on the ballot. (Elections Code sections 17300-17506.)

Free Access System

The Help America Vote Act of 2002 (HAVA) requires each state or local elections official to establish a “Free Access System,” such as a toll-free telephone number for voters to call or an Internet website that voters can access free of charge, to ascertain if they voted a provisional ballot at the polls, whether or not their vote was counted, and, if it was not counted, the reason why it was not counted.

Each county elections office has established a free access system for voters to determine if their provisional ballot was counted and, if it was not counted, the reason why it was not counted. Information on each county elections official’s free access system can be found at Ballot Status.

[3]  Manipulating the System with Ballot Challenges

Everyone ought to be able to agree that a County’s Registrar of Voters should exclude illegal provisional votes: those cast by unregistered voters, double votes (individuals who attempted to cast both VBM and provisional ballots), and those who live in a domicile (last place of residence from which they did not have a specific intent to move at a given time) outside of the jurisdiction.  Beyond that, things become more questionable.

The issues in challenges of Provisional Ballots will center on proof that the voter does reside in the jurisdiction at issue, the opportunity that will be given to the voter to prove such residence, the use of business or P.O. Box addresses (when voters may or may not have done so deceitfully), the failure or alleged failure of first-time voters to provide identification allowing for a signature match, etc.  I’m not going to go into the legality of such challenges here; the time to do that will be in the Registrar of Voters Office itself — and possibly in court.

My point here is simply about manipulation of the system.

What is the lesson for us as a society if a campaign singles out only or primarily one demographic segment of voters — oh, to take an example at random, Latinos — for this extra level of scrutiny?  Like any additional screen, it will tend to knock out some of them — just as would be the case if it were applied to non-Latino white or Black or Asian voters.  This may be legal — or it may not be, or it may lead to various untoward circumstances — but that’s not the only question to ask.

We should also ask whether it is right.  Is it fair, is it just?  Is it discriminatory?

The law may or may not help us here.  But taboo and social mores certainly will.  Every ballot reviewed represents a person.  Every person has a story of how they came to cast that ballot in that form — a story, perhaps, of eviction, or homelessness, and relocation.  Or perhaps a story of being strained so much by life’s circumstances that they did not pay scrupulous attention to how they were supposed to fill out the ballot envelope.  Or of being a victim of domestic assaults, which would have entitled them to cast a ballot without an identifying address — which they may not have known because our society does too little to inform victims of battering of their rights.  Or many more such stories.

What does it say about a candidate, or his or her supporters (who may have an interest in not seeming like racist thugs), if they put only or primarily one demographic group through the wringer of having to explain their stories publicly in court?

We’ll know the names of the people whose ballots any campaign may attempt to exclude.  We’ll have the opportunity to hear their stories.  We’ll be able to call people to account for discriminatory use of the ballot challenge processes.

Whether those ballots are counted will be up to the law.  But whether anyone will be deterred from discriminatory challenges, especially to provisional ballots, by the fear of popular reaction to their actions — that will not be up to the law.

That will be up to us — and our finely honed, raw-rubbed, collective sense of disgust at injustice.

We’ll know more about this by tonight.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)