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A Provisional Ballot Primer

The Franklin County Board of Elections is sorting through more than 27,000 ballots. That's the number of provisional ballots that were cast on Election Day and during the 30-day early voting period that preceded it. A provisional ballot, as the name implies, may or may not count.

The 27,000 provisional ballots cast in Franklin County during the general election amount to about 5 percent of all votes cast. An elections law expert at Ohio State University calls the provisional ballot an insurance policy. Edward Foley is a professor at OSU's Moritz College of Law.

"If a voter goes to the polling place and there's a question about the voter's eligibility, the voter's not turned away completely without the opportunity to cast a ballot and therefore express the voter's preferences as to who should win," Foley says. "But what makes it provisional is that it's not automatically counted. It is going to be evaluated to be decided whether it can count or cannot count."

Insurance policy, yes. But a person who votes provisionally also runs the risk of being disenfranchised.

"If you go to a polling place and it turns out it's the wrong polling place they will give you a provisional ballot," Foley says. "But automatically it won't count because Ohio has a law that says you have to be at the correct polling place."

It's the responsibility of the poll worker to send the voter to the correct location, Foley says. But that may or may not happen.

"The poll worker is supposed to tell the voter, 'Don't vote here, sorry you had to wait in line but you need to go to this other location for your ballot to count.' We don't know how often that conversation occurs properly or whether it's sometimes failed to be mentioned."

On Tuesday there were scattered complaints from people who said they were required to vote provisionally. Hundreds of people had to do it because the board of elections had flagged their names in error on voting rolls. Sometimes it's the voter's fault; a voter might have an address change but not notified the board with the new information. Then there are the demands placed on poll workers.

"The state law actually has 14 different specified reasons that a voter might have to vote provisionally," Foley says. "And of course it's very hard for the poll workers to keep track of all of them on Election Day when there are long lines and people wanting to vote and so forth."

Earlier in the week, the secretary of state's office expressed concern that a projected 35,000 Franklin County voters had to cast provisional ballots. County officials released the 27,000 figure Thursday, saying that a five percent provisional ballot rate was not excessive. When it becomes excessive, Edward Foley says it's time to find out why.

"If a jurisdiction has an excessively high rate at which provisional ballots are cast, then even though they all get counted down the road, it's not necessarily a success story," Foley says. "Why is it that all these people were given provisional ballots rather than regular ballots? Yes we're glad that it gets counted in the end, but was it really necessary to give them a provisional ballot in the first place?"Not all provisional ballots do get counted. Foley says that on average about 20 percent are disqualified.