Introduction

Provisional ballots ensure that voters are not excluded from the voting process due to an administrative error. They provide a fail-safe mechanism for voters who arrive at the polls on Election Day and whose eligibility to vote is uncertain.

Also referred to as “challenge ballots” or “affidavit ballots” in some states, they are required by the federal Help America Vote Act of 2002 (HAVA). When there is uncertainty about a voter’s eligibility—the potential voter’s name is not on the voter rolls, a required identification document isn’t available or other issues—the election official is required to offer the voter a provisional ballot instead of a regular ballot.

In nearly all of the states, after being cast, the provisional ballot is kept separate from other ballots until after the election. A determination is then made as to whether the voter was eligible to vote, and therefore whether the ballot is to be counted. Generally, a board of elections or local election officials will investigate the provisional ballots within days of the election. Since this is an additional administrative step, a large number of provisional ballots can increase costs for jurisdictions.

States vary greatly in how provisional ballots are handled and in the number that are issued and rejected, and both the processes and the data are tracked by the U.S. Election Assistance Commission (EAC). States can have as few as 100 provisional ballots cast statewide, or as many as 100,000.

Often standards for handling provisional ballots are determined by state law.

This Web page provides a general overview of state provisional ballot laws and practices. The information was gathered from several sources, including the EAC’s 2014 Statutory Summary, state election manuals, state statutes and regulations, and through consultation with state election administrators.

NOTE: Idaho, Minnesota and New Hampshire do not issue provisional ballots, therefore, we do not provide information regarding those states in any of the material below. For explanation of why they do not issue provisional ballots see What states do not use provisional ballots, and why?

Because state laws vary so greatly we recommend consulting your state’s laws and regulations if you have specific questions.

This page answers the following questions:

What Does Federal Law Require Regarding Provisional Ballots?

Provisional ballots are mandated by section 15482 of the Help America Vote Act of 2002 (HAVA), but even before HAVA, some states offered “provisional,” “challenge” or “affidavit” ballots to ensure that no eligible voters were turned away. HAVA exempts only a few states: Idaho, Minnesota, New Hampshire, North Dakota, Wisconsin, and Wyoming (see below).

The law states: “If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot…”

HAVA sets out what actions are required of voters and of election officials:

Voters: To use a provisional ballot, each voter whose eligibility to vote is uncertain must provide a written affirmation, signed in front of an election official at the polling place, stating that he or she is a registered voter and is eligible to vote in the election.

Election officials: Election officials and poll workers must notify potential voters that they have a right to use a provisional ballot, provide the ballot, witness the affirmation, and receive the ballot for later processing. Additionally, election officials must provide information to the voter on how the process works and how to find out if his or her ballot was cast—and if not, why not.

Why Are Provisional Ballots Issued?

For a voter to cast a provisional ballot, there must be some question as to his or her eligibility to vote. These questions vary across states. The most common reasons, as identified by the EAC, are:

The voter’s name is not on the poll or registration list.

The voter’s eligibility cannot be otherwise established.

The voter’s identity and/or eligibility to vote has been challenged by a poll-worker or election official.

The voter does not have identification as required by that state.

The voter requested an absentee ballot but claims he or she either didn’t receive it or didn’t cast it.

The voter’s address or name has changed but their voter registration information does not reflect the change.

For primaries, the voter registration reflects an error in party listing.

Most states have additional reasons specific to those states. In addition, HAVA requires all states to issue provisional ballots if the polling place hours are extended by court order.

Below is a chart of the most common reasons voters may need to cast a provisional ballot and the states that will allow a voter to cast a provisional ballot in those instances.

Common Reasons Voters May Need to Cast a Provisional Ballot Reason States Voter eligibility cannot be immediately established—i.e., name is not on registration list 46 states, plus D.C.: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming The voter’s eligibility is challenged by a poll watcher 27 states, plus D.C.: Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, District of Columbia, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Montana, Nevada, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, West Virginia, Wyoming Voter did not present ID as required by the state 36 states, plus D.C.: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington, Wisconsin Voter requested an absentee ballot and has not cast it 16 states, plus D.C.: Alabama, Arizona, Arkansas, California, District of Columbia, Illinois, Kansas, Maryland, Montana, Nebraska, Nevada, New Jersey, Ohio, Rhode Island, Texas, Virginia, Washington/td> Registration reflects an error in party listing (primary election only) Nine states, plus D.C.: District of Columbia, Maine, Maryland, Massachusetts, New Jersey, New York, North Carolina, Oklahoma, Pennsylvania, West Virginia Address and/or name has changed Nine states, plus D.C.: Alaska, Arizona, California, District of Columbia, Florida, Maryland, Mississippi, New Jersey, Ohio, Texas

What Is the Legislative Role Regarding Provisional Ballots?

Because it takes longer to process provisional ballots than regular ballots, legislators and administrators may be motivated to reduce the use of provisional ballots. While the availability of provisional ballots is mandated by federal law—the Help America Vote Act of 2002—state laws determine how and why provisional ballots are used. They may also want to make procedures for the use of provisional ballots uniform throughout their state. Here are issues relating to provisional ballots that legislators may address:

Same Day Registration . In some states that offer same day registration, they may implement it by requiring the use of provisional ballots for Election Day registrants. In these cases, voters can indeed register and vote at the same time, but if they cannot immediately provide the required identification and proof of residency, their ballots are not counted until their eligibility is determined. (Other states may provide same day registration through other mechanisms). Montana uses provisional ballots for this purpose and OK S 314, from 2015, would have created same day registration through the use of provisional ballots.

. In some states that offer same day registration, they may implement it by requiring the use of provisional ballots for Election Day registrants. In these cases, voters can indeed register and vote at the same time, but if they cannot immediately provide the required identification and proof of residency, their ballots are not counted until their eligibility is determined. (Other states may provide same day registration through other mechanisms). Montana uses provisional ballots for this purpose and OK S 314, from 2015, would have created same day registration through the use of provisional ballots. Voter ID . Many states who have strict voter ID requirements ask voters who do not provide the appropriate ID at the time of voting to cast a provisional ballot. Voters have the opportunity to show ID within a few days of the election, and if not, the provisional ballot is not counted.

. Many states who have strict voter ID requirements ask voters who do not provide the appropriate ID at the time of voting to cast a provisional ballot. Voters have the opportunity to show ID within a few days of the election, and if not, the provisional ballot is not counted. Voted the Wrong Ballot . In states where several precincts may be housed in one polling place, it is not uncommon for a voter to get in the wrong line. In this case, the voter is offered the opportunity to either get in the right line for the correct ballot, or be issued a provisional ballot that would be partially counted. This is called the “right church, wrong pew” situation. In Ohio, in 2014 SB 216 was enacted to set procedures for these cases that allow a portion of the ballot to be counted.

. In states where several precincts may be housed in one polling place, it is not uncommon for a voter to get in the wrong line. In this case, the voter is offered the opportunity to either get in the right line for the correct ballot, or be issued a provisional ballot that would be partially counted. This is called the “right church, wrong pew” situation. In Ohio, in 2014 SB 216 was enacted to set procedures for these cases that allow a portion of the ballot to be counted. Issued an Absentee Ballot . In many states, voters who have been issued an absentee ballot are not able to vote on Election Day even if they haven’t cast the absentee ballot. States can permit voters who say this is the case to vote on Election Day on a provisional ballot; that way, if the original absentee ballot does get submitted, the provisional ballot will not be counted. For instance, RI S 639, from 2015, would permit voters to vote on a provisional ballot even if they had requested an absentee ballot.

. In many states, voters who have been issued an absentee ballot are not able to vote on Election Day even if they haven’t cast the absentee ballot. States can permit voters who say this is the case to vote on Election Day on a provisional ballot; that way, if the original absentee ballot does get submitted, the provisional ballot will not be counted. For instance, RI S 639, from 2015, would permit voters to vote on a provisional ballot even if they had requested an absentee ballot. Name Not on the Voter List . One of the most common reasons provisional ballots are issued is that the voter’s name does not appear on the voter list, even if the voter says he or she has registered. In 2015, TX H 2987, which failed, proposed giving each new registrant a receipt saying they had applied to register. If the name is not on the voter list, the receipt could be attached to a provisional ballot, thus proving the voter had done their part by registering.

. One of the most common reasons provisional ballots are issued is that the voter’s name does not appear on the voter list, even if the voter says he or she has registered. In 2015, TX H 2987, which failed, proposed giving each new registrant a receipt saying they had applied to register. If the name is not on the voter list, the receipt could be attached to a provisional ballot, thus proving the voter had done their part by registering. Voting Outside One’s Precinct . In some states, provisional ballots can be used by voters who are voting outside their own jurisdiction. State law governs whether these ballots will be rejected, or whether the portion of the ballot the voters were eligible to vote will be counted. In 2013, Illinois and Utah passed legislation to count partial ballots. Also in 2013, North Carolina enacted HB 589, which clarified that provisional ballots cast in the wrong precinct will not be counted.

. In some states, provisional ballots can be used by voters who are voting outside their own jurisdiction. State law governs whether these ballots will be rejected, or whether the portion of the ballot the voters were eligible to vote will be counted. In 2013, Illinois and Utah passed legislation to count partial ballots. Also in 2013, North Carolina enacted HB 589, which clarified that provisional ballots cast in the wrong precinct will not be counted. Uniform Time Frames . States can create uniform time periods for handling provisional ballots. Illinois’ HB 2418, enacted in 2013, requires election officials to transmit information about provisional ballots cast to the state board within two calendar days of the election, and increases from two to seven days the time period during which a provisional voter may submit additional information to election authorities. Also in 2013, Texas established a time frame for counting provisional ballots.

. States can create uniform time periods for handling provisional ballots. Illinois’ HB 2418, enacted in 2013, requires election officials to transmit information about provisional ballots cast to the state board within two calendar days of the election, and increases from two to seven days the time period during which a provisional voter may submit additional information to election authorities. Also in 2013, Texas established a time frame for counting provisional ballots. Uniform Procedures: States can also establish statewide procedures for counting provisional ballots. In 2013, Virginia addressed two procedural issues. With HB 63, it established who can be present when provisional ballots are counted, and with HB 2143, the state now requires that provisional ballots be “promptly” put in the ballot box.

How Is a Provisional Ballot Investigated?

Once a provisional ballot is cast, it is stored separately from other ballots and investigated by local election officials. Generally, this process entails verifying the voter’s identity and eligibility to vote, and may require the voter to provide further information. If the identity of the voter and the voter’s eligibility can be established through reviewing the voter rolls or verifying a signature, all or a portion of the ballot will be counted (see below). If their eligibility cannot be established, the ballot will not be counted.

In some states, the voter may be asked to take action after Election Day to have his or her provisional ballot. In these cases, the voter may be required to return to an election office following the election to verify his or her identity and/or eligibility to vote. In most cases, these voters were issued a provisional ballot because they did not present voter identification as required by that state. In Alabama, Arizona, Georgia, Indiana, Kansas, Ohio, South Carolina, Tennessee, Texas, Virginia and Wisconsin voters have a few days after Election Day to show required identification (see NCSL’s Voter ID Requirements page.)

Occasionally a voter may be asked to return to provide proof of residence, such as a utility bill, or other eligibility verifications depending on the reason for the issuance of the provisional ballot. These states are likely to be those that offer Election Day registration.

Is Any Part of a Provisional Ballot Counted If it Is Cast in the Wrong Precinct?

States vary in how they handle provisional ballots cast in the wrong precinct. This most commonly happens when a voter goes to the wrong precinct because he or she can’t get to the home precinct, and therefore votes on a provisional ballot. (As part of get-out-the-vote efforts toward the end of Election Day, candidates, campaigns and advocacy groups may encourage this choice.)

Some states count a portion of the provisional ballot if it is cast in the wrong precinct or jurisdiction. Generally, they will count the votes for races that the voter would have been eligible to vote in, if they did so in the correct precinct or jurisdiction. This may include just votes for federal offices, as in Rhode Island, or for state or local races that would be shared among precincts.

In other states, the entire ballot will be rejected.

Exceptions may exist. For example, in Maine, the full ballot is counted first. If the number of provisional ballots cast would change the outcome of the election, and only then is the validity of the provisional ballots investigated.

In Ohio, there may be certain polling places holding elections for more than one precinct. In that situation, if the voter is in the right polling place but the wrong precinct, they will first be directed to the correct precinct. If they chose not to get back in line they can choose to vote a provisional ballot in the wrong precinct (Ohio Code § 3505.183)

State Handling of Provisional Ballots Cast in the Wrong Precinct. Full Count Maine** Partial Count Alaska, Arizona, Arkansas, California, Colorado District of Columbia, Georgia, Kansas, Louisiana*, Maryland, Massachusetts, New Jersey, New Mexico, New York, Ohio***, Oregon, Rhode Island*, Utah, Washington, West Virginia Does Not Count Alabama, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Kentucky, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Wisconsin, Wyoming

*Only Federal races

** Validity is only reviewed if the number of provisional ballots cast is a large enough number to affect the results of the election

*** See Ohio Code § 3505.183

What Are the Reasons for Rejecting/Accepting a Provisional Ballot?

Once the provisional ballot has been investigated, the election officials will either accept the ballot and count all or part of it, or reject the ballot and not count it.

According to the EAC the most common reasons for rejection of a provisional ballot are: (1) the voter was not registered; (2) the voter cast a provisional ballot in the wrong jurisdiction; (3) the vote was cast in the wrong precinct; (4) the voter lacked required ID or did not provide the proper ID within the allotted time after Election Day as described above; (5) the provisional ballot was incomplete, or the ballot or envelope was illegible; (6) the voter had already voted in that election; or (7) there was no signature on the provisional ballot or the ballot envelope.

Some states provide lists of the reasons for rejecting provisional ballots. The chart below includes 50-state information regarding how states have defined the reasons for rejecting or accepting provisional ballots. When possible the language listed is directly from state sources.

How Does a Voter Find Out If a Provisional Vote Was Counted?

HAVA requires the state or local election official to give the person casting a provisional ballot information on how he or she can find out whether the voted was counted, and, if not, the reason why not. The law says this may be “a toll-free telephone number or an Internet website” established for that purpose.

This requirement often is reflected in state statute, rule, or in the election manual. In 2012, 20 states offered an online tool for voters to find out if their provisional ballot was counted, according to the Election Performance Index from The Pew Charitable Trusts.

What Time Is Allotted to Determine the Status of Provisional Ballots?

Each state establishes when provisional ballots are processed. For example, some states base this timeframe on how long the voter has to prove eligibility as detailed above, or they use the same timeframe as the official election canvass.

Which States Do Not Use Provisional Ballots?

States that offered same-day voter registration at the time the National Voter Registration Act was enacted (1993) are also exempt from HAVA’s provisional ballot requirements. Those states are: Idaho, Minnesota, New Hampshire, North Dakota (which does not require voter registration although it does keep a list of voters), Wisconsin and Wyoming.

While those state are not required to provide provisional ballots under HAVA, they are also not prohibited from using provisional ballots.

North Dakota, for instance, uses them in cases where the hours at a polling place have been extended. Wisconsin uses provisional ballots for same-day registration when a voter is not able to provide required identification. In this case, a provisional ballot is not counted until identification is shown, allowing the voter to register.

Similarly, Wyoming uses provisional ballots if the voter is not on the registration list and does not have proper identification in order to register on Election Day, if they are challenged by a poll watcher or if there are extended polling hours. The voter is then required to provide additional information, such as proof of residence or identification, in order for the ballot to be counted. The provisional ballot will not be counted if the voter does not provide the requisite information needed for registration.

Idaho, Minnesota and New Hampshire do not issue provisional ballots at all.

Methodology

This information was compiled from various sources, including state statutes and regulations, state election manuals, the Election Assistance Commission Statutory Survey, and conversations with state election directors.

To offer comments or corrections, please contact elections-info@ncsl.org.

Additional Resources

NCSL LegisBrief on Provisional Ballots

About This NCSL Project

The development of this Web page was generously support by The Pew Charitable Trusts.

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