A Vote for Provisional Ballots

A federal judge in Michigan, spurning arguments raised by the Justice Department, ruled Tuesday that the state must count provisional ballots cast by voters who turned up at the wrong precinct but were in the right city or township.

The decision by U.S. District Judge David Lawson in Bay City is the latest ruling in what has become a thorny issue in the 2004 presidential campaign.

The judge issued an injunction forbidding Terri L. Land, the state’s Republican secretary of state, from directing Michigan election officials not to count a provisional ballot unless a voter was at the correct precinct.

Lawson based his ruling on Michigan statutes and the Help America Vote Act. The law was passed after the problem-plagued 2000 presidential election “when thousands of eligible voters were not permitted to vote because of the improper or erroneous administration of local election laws,” the judge said.

The law provides that a person whose qualification to vote in a federal election is challenged must be allowed to cast a provisional ballot, which is segregated and counted later if the voter’s eligibility can be verified.

Provisional ballots have been used in a variety of jurisdictions in situations where voters maintain that they are properly registered but their names do not appear on the list at a particular precinct house on election day. This can occur for a variety of reasons, including a change in polling places after redistricting.

Lawson agreed with the Michigan National Assn. for the Advancement of Colored People, the state Democratic Party and voters’ rights organizations which argued that it would be wrong to deny the right to vote to someone because they came to the wrong precinct, so long as the person showed up at a precinct in the city, township or village where he lived.

A Saginaw woman, who had been registered to vote in Michigan since 1979, testified at a hearing this month that when she tried to vote in this year’s primary at her polling place, her name wasn’t on the list.

She was sent to another polling place two miles away, and again her name was not on the list. But a poll worker there found her name on a list and directed her to the town hall, where she was permitted to vote. The process took two hours, according to Lawson’s ruling.

The judge said that eligible voters who were not permitted to vote because they went to the wrong precinct would be “irreparably injured.” He also said the state’s claim that allowing out-of-precinct voting would increase the likelihood of fraud was overstated.

Lawson rejected the contention of the Justice Department that the Help America Vote Act did not give individuals the right to sue. He said the government’s brief added “nothing to the arguments” previously lodged by the parties in the case.

Attorney Wendy Weiser of the Brennan Center for Democracy at New York University Law School, who represented the plaintiffs, said she was “very pleased with the ruling,” emphasizing that it upheld “basic democratic values.”

Lawson’s ruling paralleled one issued by a federal judge in Columbus, Ohio, last week.

On Monday, the Florida Supreme Court ruled that provisional ballots in the state would only be counted if they were cast in the right precinct. That decision was based solely on state law.