The looser the provisional-ballot rules, the easier it will be to manipulate the system. Democrats have filed suits in key battleground states appealing to judges to overturn state election law to loosen the rules concerning provisional balloting -- with some initial success in Ohio and Michigan. Judges overturned state law to rule that provisional votes must be counted even if cast in the wrong precinct.
During the weekend, the 6th U.S. Circuit Court of Appeals correctly struck down the Ohio ruling, and stayed the Michigan ruling, which will likely be overturned as well. HAVA clearly leaves it to state law how exactly to deal with provisional ballots. In any case, wrong-precinct balloting raises the prospect of someone going from precinct to precinct merrily casting provisional ballots, in what Ohio's Republican secretary of state, Ken Blackwell, has called "stop and shop" voting.
Despite the legal setback, Democrats will still play provisional balloting for all its worth. The Associated Press reported last week that John Kerry will declare victory on Election Day, even if he is behind. That will help Kerry hang on politically, while pressure is created to count all the provisional ballots and short-circuit efforts to determine their validity. Racial politics will play a role in the Democratic advocacy, as they will argue that many of these provisional ballots belong to minorities "disenfranchised" by having to abide by the letter of election rules.
So the Democratic sound bite leaves out an important detail: "If all the votes that shouldn't count are counted anyway in a close election, then Kerry will win."