Section 17-10A-2

Provisional ballots; certification; tabulation; identification of ballots. THIS SECTION WAS ASSIGNED BY THE CODE COMMISSIONER. THIS SECTION HAS NOT BEEN CODIFIED BY THE LEGISLATURE.

(a) A voter shall be required to cast a provisional ballot when:

(1) The name of the individual does not appear on the official list of eligible voters for the precinct in which the individual seeks to vote, and the individual's registration cannot be verified while at the polling place by the registrar, deputy registrar, or a member of the canvassing board.

(2) An inspector has knowledge that the individual is not entitled to vote at that precinct and challenges the individual.

(3) The individual is required to comply with the voter identification provisions of Section 17-10A-1 but is unable to do so.

(4) A federal or state court order extends the time for closing the polls beyond that established by state law and the individual votes during the extended period of time. Notwithstanding any other provision of state law, where provisional ballots are cast pursuant to a federal or state court order extending the time for closing the polls beyond that established by state law, the provisional ballots shall be segregated from other provisional ballots into a separate sealed container for such purpose and shall be counted, tabulated, and canvassed only pursuant to the order of a court having proper jurisdiction.

(b) The procedure for casting a provisional ballot at the polling place shall be as follows:

(1) An inspector at the polling place shall notify the individual that the individual may cast a provisional ballot in that election and shall give the individual written information that states that any individual who casts a provisional ballot will be able to ascertain under the system described in subsection (g) whether the vote was counted, and, if the vote was not counted, the reason that the vote was not counted.

(2) The individual shall execute a written affirmation by the individual before the inspector or clerk stating the following:

"State of Alabama, County of ______________ I do solemnly swear (or affirm) that I am a registered voter in the precinct in which I am seeking to vote and that I am eligible to vote in this election.

(3) The individual shall complete a voter reidentification form prescribed by the Secretary of State for use in updating the state voter registration list. This form shall indicate whether it is associated with a provisional ballot.

(4) Where a provisional ballot is required on the basis of an inspector's knowledge that a voter is not qualified to vote in the precinct in which the individual is seeking to vote, the inspector shall sign a statement under penalty of perjury setting forth facts which the inspector believes to support his or her belief that the individual is not qualified to vote in the precinct in which the voter is seeking to vote. The challenge statement of the inspector shall be written on a multi-part form prescribed for such purpose by the Secretary of State and the inspector shall give one copy to the provisional voter, provide one copy to be sealed with the provisional ballots, and provide one copy to be returned to the board of registrars in a sealed envelope.

(5) The voter shall cast the provisional ballot and place it into a sealed ballot box separately identified and utilized for containing provisional ballots.

(c) The procedure for voting a provisional ballot by absentee voting shall be as follows:

(1) Upon receipt of an absentee ballot from an individual required to provide identification, the absentee election manager shall determine whether such identification has been properly provided. If the identification has not been properly provided, the absentee election manager shall notify the voter in writing of the following:

a. That unless such identification is provided to the absentee election manager by 5:00 p.m. on the Monday before the election, the voter's absentee ballot will become a provisional ballot.

b. That in the event the voter's ballot becomes a provisional ballot due to lack of identification, such identification must be provided to the board of registrars no later than 5:00 p.m. on the Monday following the election and shall include the address and telephone information for the board of registrars.

c. That in the event the voter fails to provide identification to the board of registrars by 5:00 p.m. on the Monday following the election, the voter's ballot will not be counted.

d. That any individual who casts a provisional ballot will be able to ascertain under the system described in subsections (d) and (f) whether the vote was counted and, if the vote was not counted, the reason that the vote was not counted.

(2) Upon receipt of an application for an absentee ballot where the voter is not identified as appearing in the precinct for which the voter seeks a ballot, the absentee election manager shall:

a. Mark the word "Provisional" on the second or affidavit envelope prior to transmittal of the absentee ballot.

b. Enclose the following information with the transmittal of the absentee ballot:

1. A written explanation as to why the ballot is a provisional ballot; how to complete the voter reidentification form and affirmation of provisional voter form; and the procedure followed by the board of registrars in verifying and certifying provisional votes.

2. A voter reidentification form and an affirmation of provisional voter form.

3. A written explanation that any individual who casts a provisional ballot will be able to ascertain under the system described in subsection (d) whether the vote was counted and, if the vote was not counted, the reason that the vote was not counted.

(3) When an absentee ballot becomes a provisional ballot as a result of an absentee precinct inspector or clerk having knowledge that the individual is not entitled to vote at the precinct applicable to the voter's ballot and challenges the voter's right to vote a particular ballot, the absentee precinct inspector or clerk shall follow the same procedure identified in subdivision (4) of subsection (b) except as follows:

a. In lieu of providing the provisional voter with a copy of the poll worker challenge statement, the inspector shall provide two copies to the absentee election manager once the results from the absentee precinct have been tabulated and certified.

b. The absentee election manager shall mail one copy of the challenge statement of the inspector by first class mail by the day after the election to the mailing address provided on the provisional voter's application for an absentee ballot and shall enclose with it a written explanation of the procedure used by the board of registrars in verifying and certifying provisional ballots; an address and telephone number by which the provisional voter may respond; and a written explanation that any individual who casts a provisional ballot will be able to ascertain under the system described in subsection (d) whether the vote was counted and, if the vote was not counted, the reason that the vote was not counted.

(d) Upon the closing of the polls, the sealed ballot box containing the provisional ballots shall be returned unopened to the sheriff who shall keep it securely until such time as the provisional ballots are counted in accordance with subsection (f). The written affirmations of the provisional voters, inspector challenge statements, and all voter reidentification forms shall be placed in a sealed envelope addressed to the board of registrars and delivered by the sheriff to the board of registrars no later than noon on the day following the election.

(e) Upon receipt of materials returned from the polling places, the board of registrars shall forthwith update the state voter registration list utilizing the voter reidentification forms of provisional voters and shall verify by a certification attached to each provisional voter affirmation whether the provisional vote is entitled to be counted and the reason for or against counting the provisional ballot. When verifying a provisional ballot based upon the challenge of an inspector, the board of registrars shall promptly contact the voter by first class mail and provide an explanation of how the provisional voter may respond to the challenge. After determining that the provisional voter has had notice and an opportunity to be heard, the board of registrars shall verify by a certification attached to the challenge statement whether the provisional ballot is due to be counted and, if not, why it should not be counted. The board of registrars shall deliver the provisional voter affirmations and inspector challenge statements, with the certified findings of the board of registrars attached, to the judge of probate no later than noon seven days after the election until which time such findings shall remain confidential. Upon delivery of such materials, the board of registrars shall enter into the state voter registration list a voter history providing identification of voters who cast provisional ballots, whether their ballot was counted, and the reason the ballot either was or was not counted.

(f) Commencing at noon seven days after the election, the appointing board for poll workers, in the presence of watchers designated by any interested candidates, shall tabulate provisional ballots which have been certified by the board of registrars as cast by registered and qualified voters of the precincts in which such ballots were cast. For the purpose of making election returns of provisional ballots, provisional balloting results shall be returned and canvassed as a separate precinct while disclosing all votes for candidates and ballot measures cast in such ballots. The appointing board shall certify on a form to be prescribed by the Secretary of State the results of the provisional votes cast and shall post one copy in a public location within the courthouse and shall seal one copy with the provisional ballots, provisional voter affirmations, inspector or clerk challenge statements, and certifications of the board of registrars into a sealed container or, in the case of primary elections, containers designated for each political party for such purpose. Such containers shall be delivered and remain secured with the other records of the election in accordance with state law.

(g) The board of registrars, after verifying the identity of a provisional voter, shall make available at the request of such voter, the findings of the board of registrars as to whether the individual's provisional ballot was counted and, if not, the reason why. This may be accomplished by telephone, by letter, or by secured electronic means. The Secretary of State shall provide a secure means for provisional voters to verify by electronic means whether the individual's vote was counted and, if not, the reason why. There shall be no charge to the provisional voters for obtaining this information.

(h) The Secretary of State may by rule address the means of identifying ballots cast by particular provisional voters by the appointing board and the method of providing confidentiality and security to communications with provisional voters seeking information about the status of their ballot. Notice of any proposed rule or amendment to an existing rule relating to provisional balloting shall be sent by certified mail to every judge of probate at least 30 days prior to certification of the proposed rule or amendment under the Administrative Procedure Act.

(Act 2003-313, p. 733, §5.)