While provisional ballots have been used in some states in the past, HAVA is the first federal law to require their use nationwide. Section 302 of HAVA requires that people who declare that they are registered voters in a jurisdiction, but whose names do not appear on the list of eligible voters, be permitted to cast a provisional ballot.
These votes must then be counted, if the voter is later determined eligible. HAVA requires officials to follow these procedures:
Notification - An individual whose name does not appear on the list must be notified that he or she is entitled to cast a provisional ballot.
Affirmation - In order to cast a provisional ballot, the voter must affirm that he or she is a) registered in the jurisdiction and b) eligible to vote in that election.
Transmittal - Poll workers must transmit the provisional ballot or the information contained in the affirmation to the appropriate state or local election official.
Counting - If the election official determines that the individual is eligible to vote under state law, then the provisional ballot should be counted.
Confirmation - Election officials must establish a free access system (such as a toll-free number or web site), allowing provisional voters to ascertain whether or not their provisional ballots were counted and, if not, why not.
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