Edward Foley	- Download MP3-

Like “hanging chads” from the 2000 presidential election, the federally mandated “provisional ballot” has strong potential for causing court fights after the November election, according to two election-law experts.

The provisional ballot, which allows people to vote on election day even when they have no proof of being registered, is part of a fragmented election system across the nation that continues to suffer from “instability and ambiguity” despite efforts by federal lawmakers to fix it, said Edward B. Foley, a professor specializing in election law at Ohio State University’s Moritz College of Law.

Mr. Foley and David Boies, nationally recognized federal election-law experts, spoke Thursday at the annual conference of the U.S. Court of Appeals for the Sixth Circuit, held this year in Chattanooga. Mr. Boies represented Tennessean Al Gore in his Supreme Court fight against the 2000 Florida election result.

The latest Band-Aid for the federal election process came with 2002’s Help Americans Vote Act, legislation that was supposed to prevent another hanging-chad controversy, according to Mr. Foley. But the act intentionally was vague to let states remain flexible in setting election standards, he said. As a result, the act papers over some of the most politically contentious election issues, such as whether to require valid identification to vote and what constitutes valid identification, Mr. Foley said.

Mr. Boies said questions on which types of voting machines are best and how much in advance people should register to be qualified to vote still linger.

“But states have a significant range of choices they can make, and the federal government can only consider whether the election laws they create will enforce the equal protection clause of the Constitution,” he said in explaining why it is difficult for the federal government to regulate elections.

The equal protection clause states that all people have a right to equal protection under the law.

Mr. Foley said litigation surrounding provisional ballots already has cropped up in Washington and Ohio.

He compared the ballots to the hanging chads that captured attention in Florida during the 2000 presidential elections. Questions arose on whether ballots with the chads, tiny pieces of paper still clinging to them after voters had punched in their selections, could be considered valid. But because Florida’s standard for analyzing the ballots was vague, election officials across the state used all kinds of standards, ranging from generous to strict, when deciding whether or not a “hanging chad” could qualify as a legitimate vote.

Standards for using provisional ballots are equally as vague, with most local laws stating that the ballot will count only if the voter is determined to be registered, Mr. Foley said.

“But it turns out on the ground, there’s a question of what being registered means, how local officials figure out whether a voter is registered or not, and what procedures are used,” he said.

Tennessee Election Coordinator Brook Thompson acknowledged the potential for provisional ballots to cause confusion, but he said there have been no problems at any voting precincts since the state started using them in 2004.

“We have not seen the same problems with provisional ballots in Tennessee (as) other states,” Mr. Thompson said.

Hamilton County Election Commission Administrator Bud Knowles said the commission verifies voter registration by looking at its own records and checking driver’s license records.

All voting precincts in Tennessee follow that procedure when validating provisional ballots, Mr. Thompson said.

The legal conference is continuing at the Chattanooga Convention Center until Saturday.