At least 399 provisional ballots cast by people lacking a valid photo ID were not counted in this month’s election because the voter didn’t return to a local clerk and provide the ID by the deadline.
The number, which is preliminary and will likely increase as the Wisconsin Elections Commission compiles official results, could play into the ongoing court battle over Wisconsin’s voter ID law, which was passed in 2011 but was on hold because of court challenges until this year.
“It is outrageous that the voter ID law disenfranchised at least 400 people, especially when weighed against close to zero instances of proven voter impersonation fraud in Wisconsin or anywhere in the country,” said Bruce Spiva, a lawyer representing plaintiffs in the most recent challenge to the state’s voter ID law. “If history is any guide, almost every single one of those 400 people was a qualified Wisconsin resident with a constitutional right to vote, and the state of Wisconsin denied them that right.”
Gov. Scott Walker spokesman Tom Evenson said the state has implemented a system that makes it easy for people to ensure their vote counts.
“Provisional ballots were created as a safeguard for voters who show up on Election Day without proper ID,” Evenson said. “The DMV instituted overnight mailing to ensure those voters get temporary receipts to provide in time for their vote to count.”
Legal experts said the numbers will be more relevant when they can be compared with states such as Texas, which gave voters without an ID the opportunity to sign an affidavit saying they were unable to obtain one.
Edward Foley, an election law professor at Ohio State University, said the federal courts might not be sympathetic to a voter who didn’t make an effort to get a voter ID, but if there’s evidence that they tried and were unsuccessful, “that might signal there are a group of Wisconsin voters who would have been protected by the more generous Texas system.”
“The federal judicial system is searching for an appropriate safety net, that means no proper voter will be disenfranchised by a genuine voter ID law,” Foley said. “This is important evidence to what extent is it being a barrier.”
The Wisconsin Election Commission reported there were at least 750 provisional ballots cast on Election Day, and that 618 of them were cast because a voter lacked a valid ID.
The provisional ballot process was put in place to address concerns that some voters would be disenfranchised by the ID requirement. Those who cast a provisional ballot had until the Friday after the election to provide their ID to a local clerk.
Of the 618 ID-related provisional ballots, 116 were counted because the voter later provided an ID. Another 399 were marked as “deadline expired,” indicating they were not counted, according to the elections commission. There was no information on the other ballots as to whether they had been accepted or rejected.
Also, a record 830,763 absentee ballots were recorded this year, shattering the previous record set in 2012.
The number of in-person absentee ballots alone (666,846) topped the 2012 record for all absentee ballots.
In-person absentee voting soared this year after a federal judge struck down the state’s restrictions on early voting hours.
Absentee ballots constituted 27.9 percent of all ballots cast, also shattering the previous record of 21.6 percent set in 2008.
The elections commission is required to certify all election results by Dec. 1. Official final voting totals for all state races will not be released until after results are certified.
There were more than 2.94 million votes cast in the election, making the number of provisional ballots a tiny fraction of the overall total.
The statewide presidential election was decided by about 27,000 votes, so the provisional ballots alone wouldn’t have changed the outcome.
‘Tip of the iceberg’
Jenni Dye, research director for the liberal One Wisconsin Institute, which is challenging the state’s voter ID requirement in federal court, said the number of voters who had to cast provisional ballots because they lacked an ID is “really just the tip of the iceberg” because the law may have kept eligible voters who were unable or unwilling to obtain an ID before Election Day away from the polls.
Dye also acknowledged that some of the 399 discounted ballots could have resulted from provisional voters not bothering to return with their ID later because by then the election results were known.
“I think anything is possible once a voter leaves their polling place,” Dye said. “Which is why it’s so important for people to (vote) on Election Day and not have to jump through extra hoops.”
The U.S. Supreme Court upheld Indiana’s voter ID law in 2008, saying opponents didn’t demonstrate that the law prevented legal voters from casting a ballot.
However, the ruling left the door open to future challenges that presented more evidence.