Section 17-10-2
Provisional ballots; certification; tabulation; identification of ballots.
(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 or polling place in which the individual seeks to vote, and the individual’s registration cannot be verified while at the polling place by the registrar or the judge of probate.
(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 17-10-1 but is unable to do so. If the voter’s ballot becomes a provisional ballot due to lack of identification, the identification, including the address and telephone number of the voter, must be provided to the board of registrars no later than 5:00 p.m. on the Friday following the election. If the voter fails to provide identification to the board of registrars by 5:00 p.m. on the Friday following the election, the voter’s ballot shall not be counted.
(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.
(5) The person has requested, but not voted, an absentee ballot.
(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.
| ________________ |
| Signature or Mark |
| ________________ |
| Printed Name of Voter |
| ________________ |
| Printed Residence Address of Voter |
| ________________ |
| City State Zip Code |
| ________________ |
| Date of Birth” |
(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 application, the absentee election manager shall determine whether identification has been properly provided. If the identification has not been properly provided on or after the eighth day before the election, the absentee election manager shall issue the absentee ballot as a provisional ballot and shall do all of the following:
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 written explanation that identification must be returned with the ballot or must be provided to the board of registrars no later than 5:00 p.m. on the Friday following the election.
3. A written explanation that in the event the voter fails to provide identification with the voted ballot or fails to provide identification to the board of registrars by 5:00 p.m. on the Friday following the election, the voter’s ballot will not be counted.
4. A voter reidentification form and an affirmation of provisional voter form.
5. A written explanation 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) 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 (g) 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 having knowledge that the individual is not entitled to vote at the voting place applicable to the voter’s ballot and challenges the voter’s right to vote a particular ballot, the absentee precinct inspector 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 (g) 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, or in municipal elections to the municipal clerk, 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, or in municipal elections by the municipal clerk, 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. For the purposes of a municipal election, when verifying a provisional ballot based upon the fact that the individual’s name does not appear on the official list of eligible voters for the polling place in which the individual seeks to vote, the board of registrars shall verify that the voter is registered to vote at an address located within the municipal corporate limits or district within which he or she seeks to vote. 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, or in municipal elections to the municipal clerk, no later than noon seven days after the election until which time the findings shall remain confidential. Upon delivery of the 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, Tuesday, seven days after the election, the canvassing board, or in municipal elections the municipal governing body, in the presence of watchers, shall tabulate provisional ballots which have been certified by the board of registrars as cast by registered and qualified voters of the voting places in which the 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 the ballots. The canvassing 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, or in the city hall in municipal elections, 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. The 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, by rule, may 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; Act 2006-281, p. 496, §1; §17-10A-2; amended and renumbered by Act 2006-570, p. 1331, §50; Act 2019-507, §1.)