Provisional ballots won’t count unless election is contested

By: - November 7, 2022 3:52 pm
A security guard opens the doors to the Dallas Seymour, 25, waits on line for the polls to open to cast her vote at the Downtown Nashville Public Library polling location. November 3, 2020. 6:47am. (Photo: Ray Di Pietro)

A line stretches past the Downtown Public Library and U.S. Rep. Jim Cooper’s office on Election Day 2020 in Nashville. (Photo: Ray Di Pietro)

Davidson County’s election foul-up affected 438 voters who were given the wrong ballots in early voting, and an estimated 500 more in split precincts could be asked to vote corrected ballots on Election Day, Davidson County’s chief election official says.

Problems aren’t limited to Nashville either.

As Davidson County ran into misassigned ballots toward the end of early voting last week, Shelby County also reported 50 people at the Berclair Church of Christ polling place were given ballots that failed to match their correct congressional district, forcing some to vote in District 8 or 9 when they should have voted in the other. Benton County also ran into problems with split precincts that caused some people to vote for the wrong candidates, according to the Associated Press, which broke the original story about Davidson County ballots.

Julia Bruck, spokesperson for Secretary of State Tre Hargett, said Hargett’s office has communicated with Benton County election officials.

“We reached out to the Benton County Election Commission last week. They have informed us of their error and their work to correct it,” said Bruck in a statement. “Our office has been speaking with other counties and is unaware of any other issues.”

State and Davidson County officials agreed to a court-ordered voting process late Friday in an effort to fix ballot problems. Part of the agreement requires a probe by the Tennessee coordinator of elections into the erroneous ballots.

The number of incorrect ballots was reported 212-230 late last week. But when Davidson County used state information to fix the errors, that “expanded the universe” of the problem, creating more bad ballots, according to Roberts.

In Davidson County, people who voted early on the wrong ballot will be allowed to cast provisional ballots Tuesday, Election Day, at the Davidson County Election office at 1417 Murfreesboro Pike. Yet those won’t be counted unless a court orders a recount in a contested election, according to the court agreement.

The settlement reached in a lawsuit filed by the League of Women Voters over the wrong ballots being given to Davidson County voters is “not an equitable solution,” said Tennessee House Democratic Caucus Chair Vincent Dixie of Nashville. (Photo: John Partipilo)
The settlement reached in a lawsuit filed by the League of Women Voters over the wrong ballots being given to Davidson County voters is “not an equitable solution,” said Tennessee House Democratic Caucus Chair Vincent Dixie of Nashville. (Photo: John Partipilo)

Critics of the agreement don’t like that provision, but Davidson County’s election chief says it’s the only option. 

“They’ve already voted once, and it may be that the race that they were in the wrong district for is uncontested. You’ve got the entire mix of the ballot in there,” says Davidson County Election Administrator Jeff Roberts.

Some voted incorrectly in the 5th, 6th and 7th districts, but they also might have voted in the wrong state House race, further confusing the matter, he points out.

Roberts conceded he doesn’t know what steps a judge would take.

But initial ballots that were incorrect won’t be tossed because the election office doesn’t know how they voted since the ballot is secret, Roberts says.

“That’s where the rub comes in. We don’t know how these people voted,” he says.

If they voted in the 6th District congressional race instead of the 5th or 7th where they should have, if their provisional ballot is counted, they will have been allowed to vote in two congressional races.

Davidson had 89,000 early voters and the 438 misassigned people were mixed in with them, according to Roberts. The election office has no way to contact those voters, he said, other than through social media, the media and its website to let people know they can fill out a provisional ballot.

Some 500 people who haven’t voted but are identified as being placed in the wrong district will be put on a list for election workers to check when they arrive at the polls and will be given a paper ballot, according to Roberts.

Most of those haven’t voted since 2004 and likely don’t live in Davidson County but haven’t been purged from the system, Roberts says. 

Though officials are scrambling to resolve the problems, including agreement to a legal settlement following a lawsuit by the League of Women Voters, the mess remains very much a political issue.

House Democratic Caucus Chairman Vincent Dixie says the accord reached in the lawsuit is “not an equitable solution,” in part because provisional ballots cast by people who were misassigned initially will not be counted unless a candidate contests an election and a court orders a recount.

Dixie, a Nashville Democrat, contends the early vote should be declared null and void and the election delayed so the process can be restarted, “but only after the problem has been fixed and tested for accuracy.”

“We’re letting them off the hook because there needs to be a hard solution and everybody knows what’s being done,” Dixie says. “You’re taking away those people’s right to vote. That one man one vote, that’s out the window now.”

The League of Women Voters, which filed a lawsuit against the state and Davidson County over the voting foul-up, is not enthused with that part of the settlement but continues to push for the election to proceed.

“This would not have been our preference,” says Debby Gould, president of the League of Women Voters. “One of the things that the League of Women Voters believes is that every vote counts. And if every vote and every voter counts, then they all need to be counted in the final tally.”

Nevertheless, the organization needed to reach an agreement to make it possible for provisional voting to take place and to ensure that a count of those ballots cast is available, Gould said.

We think people having confidence in the voting process is enormously important. We always have special concerns when information that voters get from government sources is a source of inaccuracy.

– Debby Gould, president, League of Women Voters

The league and two voters, Anna Carella and Nella Frierson, filed suit last Friday challenging the Davidson County Election Commission’s handling of the election in which hundreds of people were assigned the wrong ballots, mainly in congressional races, after the Legislature redrew the entire county and split Davidson into three districts, in several cases cutting precincts in two. The old 5th District contained all of Davidson and Cheatham counties.

Critics of the Republican-controlled redistricting plan, which leaders say is constitutional, argue that it split Davidson to pair portions of urban Nashville with suburban and rural counties to make it easier for a Republican to win the 5th Congressional District, in addition to the 6th and 7th districts Republicans already controlled. They also complained that it diluted the votes of Black residents, but no legal challenge was made before the election.

The accord reached between the League of Women Voters, Davidson County Election Commission, Secretary of State’s Office and Gov. Bill Lee’s Office requires all evidence relevant to an investigation by the coordinator of elections to be maintained. Roberts says the original database that contained the errors has been preserved.

That includes all previous maps used after redistricting and through early voting and Election Day by Davidson County to assign voters to state and congressional districts, as well as all previous versions of voter files, voter registration cards, voter affidavits and poll lists.

Gould, however, isn’t certain how many people will be affected by the foul-ups. The league believes an additional audit should be added to an internal investigation into the erroneous ballots.

She contends the split precincts with incorrect ballots could run from Goodlettsville to West Nashville, Green Hills and Berry Hill.

“Obviously, this is disconcerting for all of us. We think people having confidence in the voting process is enormously important. We always have special concerns when information that voters get from government sources is a source of inaccuracy,” Gould says. 

The league, though, felt the election needed to move forward, and it believes the “vast majority” of people voting will be counted accurately.

Roberts contends the vote is set for Election Day, now that early voting is over and voters with the potential for incorrect ballots have been identified.

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Sam Stockard
Sam Stockard

Sam Stockard is a veteran Tennessee reporter and editor, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state's best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial and Best Single Feature from the Tennessee Press Association.