November 8, 2022

IRG 2022 Midterms FAQ

What Happened Today?

1. Why did we hear about several reports of problems arising from election equipment or e-poll books today?

News Reports: Arizona, Michigan, New Jersey, New York, Texas, Virginia

Explanation: Election equipment and e-poll books can fail for a variety of reasons; however, typically when you hear about widespread issues – you are looking at a software or data problem. While these types of problems happen each election cycle, they are solvable, and election officials have contingency plans in place as a back-up in case equipment does fail on election day. In almost all cases, election officials could have mitigated these problems if we provided them with sufficient funding to modernize the country’s aging election infrastructure, to retain better IT support and staffing, and to ensure they have enough runway to test technology beforehand.


2. Are provisional ballots and ballot cure notices acceptable ways for election officials to deal with problems that arise at a polling location?

News Reports: Pennsylvania

Explanation: Provisional ballots and ballot cure notices are normal mechanisms for election officials to ensure voters still have an opportunity to vote despite errors made by the voter or by election officials. While they can be frustrating for voters, the use of either of these processes are not an indication in itself of a significant issue. In Pennsylvania, we saw long lines for curing ballots (see explanation on Page 4) after late litigation delayed the process for voters, which could have been avoided if local election officials were resourced to hire more staff to process cures.


3. Is voter intimidation on the rise and what does that portend for the future of our elections? 

News Reports: Louisiana, North Carolina, Arizona

Explanation: Since 2020, election deniers have fueled conspiracy theories about the administration of elections which have raised threats to election officials, workers, and to voters themselves. Encouraged by unsubstantiated claims of voter fraud, extremists have been resorting to threats of violence and intimidating monitoring activities. Poll watchers are a normal part of U.S. elections; however, today we heard reports in several jurisdictions of poll watchers acting in an intimidating manner to voters – particularly towards people of color. While voter intimidation does not appear widespread, it does appear to be on the rise, and is a serious problem for the future of elections in the U.S. On the other hand, participating in democracy is still safe, and we’ve seen elections of both parties standing up against threats. Elections officials in Maricopa County, Arizona, for example, have done a good job of condemning threats against voters and poll workers, helping to create a bipartisan narrative around protecting the integrity of elections and the safety of those who participate in our democracy.


4. Why does the speed of confirming election results vary by state and jurisdiction?

News Reports: “When to Expect Results This Year”

Explanation: Different states have different rules for counting ballots. The most important variation between states is when the processing and counting of mail ballots can start. In some states, namely Pennsylvania, Republican legislators have repeatedly blocked efforts to allow processing of mail ballots to begin earlier. This will delay the counting of ballots and the release of results in Pennsylvania, as election officials were unable to begin processing mail ballots until election day. In New York, Republicans similarly sued to block the early processing of mail ballots, although this lawsuit failed on appeal.

The other major variation that affects the speed of election results is the ballot receipt deadline for mail ballots. While some states require mail ballots to be received by the close of polls, others accept mail ballots that are postmarked by election day and reach the election office within a set timeframe after the election. In states where ballots can legally arrive by mail after election day (if postmarked by election day), additional time after election day is needed to process and count these ballots.


5. Why do initial results sometimes vary significantly from the final results? 

News Reports: “Why Early Results on Election Night May Be Misleading Again”

Explanation: In most states, votes fall into four categories: 

  • (1) mail ballots returned by the postal service, 
  • (2) mail ballots returned to a dropbox or polling place (“in-person drop off”), 
  • (3) in-person early voting, and
  • (4) election day voting.

These categories of votes are not all counted at the same time and the order in which batches are counted depend heavily on state law. For example, in Pennsylvania and Wisconsin, mail ballots cannot be processed until election day, meaning in-person votes are counted and released first, and then mail ballots results are counted and the results released later. In Arizona, mail ballots cast by election day and through early voting are counted and released first. Election day votes are counted and released next, and then in-person drop-off and any late arriving mail ballots are generally counted and released last. 

These four categories of ballots can have significantly different partisan make-ups, depending on the state. Mail ballots generally lean Democratic, while in-person early voting and election day voting generally lean Republican. The sequence in which these categories are counted can lead to initial results that differ significantly from the final results. For example, in Pennsylvania, initial results are likely to favor Republicans, as these represent the in-person totals. However, as more mail ballots are counted, the results are likely to shift towards Democrats. This is known as the “red mirage,” as initial results will appear heavily Republican, only to shift to Democrats as more mail ballots are counted. This is purely the result of the order in which different categories of ballots are counted.

Glossary of Terms

Ballot Curing

  • Sometimes mail ballot envelopes cannot be processed because information on the envelope is missing or cannot be matched. For example, a voter may forget to date the envelope or include the wrong date (e.g. by writing their birthday instead of the date they signed the envelope). Other voters may forget to sign the envelope or their signature may not exactly match the signature on file. 
  • A “cure” process provides these voters an opportunity to correct any issues with their mail ballot envelope and ensure that their ballot is counted rather than rejected. Voters whose mail ballots have a processing issue are notified of the issue and provided a method to address (or “cure”) the issue by a certain deadline. Depending on the state and the issue, the method of cure can include adding missing information such as a date or signature, providing ID to validate a mismatched signature, or voting a provisional ballot to override the mail ballot at issue.


Electronic Poll Books (or e-poll books)

  • E-poll books are electronic tablets which provide poll workers a way to accurately match a voter with their voter record and provide them with the correct ballot for their address. 
  • Advantages for e-poll books include:
    • Can allow a state to implement vote centers (i.e. allow voters to cast their ballot from any convenient location) since the e-poll book registers whether a voter has cast a ballot anywhere in the state. 
    • Speeds up the check-in process by allowing a poll worker to quickly search the state’s voter file for the correct voter record for a prospective voter.
    • An extra layer of security because it will tell the election worker if the voter has already cast a ballot.


Provisional Ballots

  • Provisional ballots, known as affidavit or challenged ballots in some states, are a safety net to protect voters against an error on election day.  Under federal law, prospective voters whose eligibility to vote cannot be verified by poll workers cannot be turned away from the polling place without being provided the opportunity to cast a provisional ballot.
  • Common reasons for provisional ballots include that the voter is listed as having already voted an absentee ballot, or the voter’s name is missing from the poll book. Provisional ballots can also be used as a back-up if electronic polling equipment goes down and voters are temporarily unable to vote via regular ballot.
  • Voters casting a provisional ballot complete a paper ballot, fill out a provisional ballot envelope with their information, and then seal the ballot in the envelope. Poll workers separate provisional ballot envelopes from regular ballots and then send these provisional ballot envelopes to election officials for processing.
  • In the days after the election, if election officials can verify the voter’s eligibility based on the information provided on the envelope and information in the voter registration database, the provisional ballot is counted.

In-Person Drop-off 

  • In some states, including Wisconsin, Nevada, and Arizona, voters are permitted to return their mail ballots at the polling place. This is known as “in-person drop-off” and some states refer to this as “late early voting.”
  • In-person drop-off ballots can be some of the last ballots to be tabulated, as they generally must be transported from the polling place back to the election office and then processed like other mail ballots for verification and tabulation.

Explanation of Today’s Election News

Pennsylvania’s legal dispute over incorrect or missing dates on mail ballots

Explanation: In an order issued last week, the Pennsylvania Supreme Court ordered counties to reject mail ballots where the ballot envelope contains the wrong date or a missing date. Some Pennsylvania counties (including Philadelphia) are providing voters the opportunity to “cure” a ballot with a missing or incorrect date if voters can address the issue before the close of polls on election day. Thousands of these voters have been trying to cure their ballot in advance of election day, leading to lines at Philadelphia City Hall.

How can we keep this from happening in the future?

  • The Pennsylvania Supreme Court or a federal court can recognize that failure to date a ballot envelope or including the wrong date is an immaterial error that has no bearing on the validity of the ballot envelope, and should not be a basis for rejecting a ballot. Federal law arguably compels this conclusion.
  • The Pennsylvania legislature can explicitly clarify that failure to include a date or including the wrong date on a ballot envelope is not a basis for rejecting a mail ballot. 
  • The Pennsylvania legislature could also formalize cure procedures for ballots with issues. Currently, these procedures are entirely regulatory pursuant to guidance from the Secretary of State. These cure procedures could ensure that voters are given clear notice and provide accessible options and adequate time to cure.
  • The Secretary of State could also expand cure opportunities through regulation, providing voters the opportunity to cure an issue by phone. For example, Nevada and Colorado both allow voters to cure a missing or mismatched signature by using a secure app to text election officials a photo of their ID.


Detroit’s e-poll book issues which led to problems in the morning for voters

Explanation: Today, some voters who showed up at polling locations in Detroit were unable to successfully check-in to receive a ballot. An error occurred where the set of numbers used for the ballot ranges of absentee ballots and in-person polling places matched one another. 

After the error was identified, polling locations were advised to use paper poll books and allow voters to continue to cast ballots with a new numbering system for in-person ballots. This is a good example of how, even when problems arise, election officials often have contingency plans in place to support continued voting and can come up with creative solutions quickly. That being said, this issue also demonstrates that resource-constraints are having a clear impact on election administration – increasing federal funding for local election officials could mitigate the chance that similar problems like this occur in the future.