Johnson had no right to names of provisional voters

Scott Frith
Government/Politics columnist

State Republicans were relieved this month when Rep. Eddie Smith won re-election in state House District 13 by narrowly defeating Democrat Gloria Johnson.

It was a close race and Johnson was right not to concede on election night with so many provisional (paper) ballots pending. However, Johnson was wrong to seek a court order to try to obtain the names and addresses of provisional voters.

Why?

Here’s how it works.

Voters are required to present a valid photo ID at the polling place. Yet, inevitably on Election Day someone is going to show up without a photo ID. It’s important that the voter have the opportunity to cast a ballot while in the polling place. Therefore, the law allows a voter without a photo ID to vote on a paper (provisional) ballot.

That ballot is then placed in a sealed envelope with the voter’s name on it and the voter is instructed to present a valid photo ID at the election commission within two business days.

If the voter brings an ID, then the commission’s bipartisan counting board removes the ballot from its identifying envelope and shuffles it with other paper ballots to be counted anonymously. (Of course, if the voter doesn’t bring an ID, then the vote isn’t counted.)

Johnson sought a court order to obtain a list of these provisional voters so that the campaign could (presumably) find its Democratic voters and get them to the election commission. While this may seem to be clever politics, releasing the names of provisional voters to the public could endanger the secrecy of a provisional voter’s ballot.

How?

With a list of provisional voters, a campaign would quickly determine each voter’s precinct from their address. If that voter is in the district and likely to support the campaign (voting history, political donations, etc.), the campaign would contact that voter, ensure that they have a proper photo ID, and get them to the election commission.

As a result, the campaign would now know that the vote of that specific provisional voter will be counted and added to the vote totals by the election commission.

In many elections, there may be only one provisional voter in a voting precinct that ends up eligible to be counted. By comparing the unofficial, precinct-by-precinct results from election night (you can find this online) with the final election results, which include the provisional votes, it’s easy to determine how that provisional voter actually voted because the candidate totals in that precinct will have increased by one vote.

Thankfully, there are legal and procedural protections in place to prevent this kind of thing from happening.

It’s one reason why the names of provisional voters aren’t released to the public.

Of course, Gloria Johnson probably didn’t intend any of this, but it was reckless for her campaign to try to go around these safeguards in court and make this kind of scenario possible.

Ultimately, Johnson was unsuccessful and Smith won re-election. Here’s hoping Democrats find a different candidate in two years.

Scott Frith is a local attorney. You can visit his website at pleadthefrith.com.

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