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 Check Status of Your Ballot.