POLICY BRIEF: How the Federally Mandated Use of Provisional Ballots Satisfies State Requirements for Countywide Voting Access
Keeping Precinct Records Intact While Satisfying Countywide Access: Kept Simple
Background
Federal law already mandates that no voter requesting a ballot may be turned away. Regardless of when or how we make the switch back into precinct-level voting, there will be an initial uptick in provisional ballots. This fact must be accepted by Ballot Board workers in primary elections who have become accustomed to the ease and convenience of unsecured election procedures.
Provisional ballots act as a failsafe, ensuring all eligible voters are able to cast their ballot while allowing the county a chance to confirm the voter’s eligibility prior to the ballot being cast. State level countywide vote center authorizations do not guarantee any voter a regular, non-provisional ballot at any polling location, and they cannot guarantee that. The legislature knows that they cannot predict what Voter ID criteria each voter will appear with to request a ballot. To guarantee every voter a regular ballot at every location eliminates the need for any Voter ID, registration or eligibility requirements, and would be patently absurd to do.
In precinct-based voting, voters can choose to vote a regular ballot at their assigned polling location, or a provisional ballot at any other location they are not assigned to. Provisional voters can easily be accommodated with their proper ballot style at any location, as their ballot style is generated upon check-in with the ePoll Books, which can still be used in a modern, precinct-based system, to prevent double-voting. Paper poll books, when used as the list of which voters can vote a regular ballot at a given location, will be the official turnout record for both the precinct and polling location.
Paper poll books containing the names of all expected voters from a given precinct are part of the federally mandated auditable paper trail. One hard-copy paper poll book for each precinct assigned to a polling location, and the use of provisional ballots, is a transparent method which allows all voters access while allowing the county a chance to prevent the casting and counting of unlawful ballots.
Dallas County has historically used both ePoll books and paper poll books for official voter check-ins each day of every election cycle. This is not unheard of, the cost is negligible, yet the shift is a meaningful one.
Once an unlawful ballot is cast, it cannot be taken back out. The damage will have been done, and our focus must be on the prevention of unlawfully cast ballots. Voting by precinct accomplishes just that.
Keeping Precinct Records Intact While Satisfying Countywide Access Kept Simple
After working with countless patriots across the nation on reported issues in election security, among the most serious concerns among voters is the use of Countywide Vote Centers. In multiple reports seen here and here and here, our collaborative work has outlined the findings of several independent election integrity activists who found that, in counties using countywide vote centers, many voters ballots are easily reconciled with their name at check-in in publicly available records. This means that some Texas voting systems fail to preserve the anonymity of the ballot when paired with epollbooks and countywide vote centers, leading to the explosive reporting that resulted in the SOS order to redact a variety of post-election information, destroying our ability to audit election records allegedly evidenced by a now obsolete chain of custody.
In multiple reports from Texas Candidate for HD108 Barry Wernick, and Tarrant County resident Susan Valiant, we have seen documented findings showing that, in counties using countywide vote centers, many voters’ ballots can be easily matched with their name through publicly available check-in records. What first appeared as isolated, one-off cases quickly grew into evidence that hundreds of thousands of ballots across Texas could be tied back to individual voters. This privacy violation is found across a variety of systems, and not one vendor is solely responsible for this phenomenon.
Historically, ballot secrecy has only been at risk with absentee voting—a concern election offices should have been informing voters about. In-person voting was conducted by precinct, so all ballots of a precinct were cast together, inherently preserving auditability and ballot secrecy. But the adoption of countywide vote centers has exponentially worsened the privacy problem. When only one voter from a given precinct votes in a given polling location, or only one person votes absentee from their precinct, their ballot is easily reconcilable through public records. Married couples who are the only ones from their precinct to vote in a given location can see one another’s ballots from precinct reports, cvrs and voter turnout files. Using “countywide vote centers” even in-person voters are not guaranteed ballot secrecy, as there is no control over where anyone else in their own precincts vote. The illusion of “countywide vote centers” providing voters with more options has facilitated the overlooking of this exacerbated issue. This is not a matter of “voter choice,” because voters were never informed that casting a ballot outside of their precinct would eliminate their guarantee of ballot secrecy, leading to redaction of ballots and other election records, destroying auditability as well.
The only “solution” offered from the Texas Secretary of State to state election officials was to order the redaction of election records to prevent post-election ballot reconciliation. But this approach directly undermines several state laws, as well as the federal mandate for auditability:
52 U.S. Code § 21081 – Voting system standards
(a) Requirements
(2) Audit capacity
(A) The voting system shall produce a record with an audit capacity for such system.
(B) Manual audit capacity
(i) The voting system shall produce a permanent paper record with a manual audit capacity.
(ii) The system must allow the voter to correct errors before the permanent paper record is produced.
(iii) The paper record shall serve as the official record for any recount.
Redacting records in the name of secrecy destroys the ability to audit elections—a direct violation of federal law.
Precinct-Based Voting and Provisional Ballots
Before countywide vote centers, voters were assigned to a precinct polling place. If properly registered and presenting photo ID, they cast a regular ballot. If not listed in the paper poll book, or if their eligibility was questioned, they cast a provisional ballot.
Provisional ballots have been federally mandated since the passage of the Help America Vote Act (HAVA) of 2002, which means countywide access to voting has been guaranteed nationwide since 2003.
Federal Use of Provisional voting requires that:
52 U.S. Code § 21082 - Provisional voting and voting information requirements
If an individual declares that such individual is a registered voter in the jurisdiction in which the individual desires to vote and that the individual is eligible to vote in an election for Federal office, but the name of the individual does not appear on the official list of eligible voters for the polling place or an election official asserts that the individual is not eligible to vote, such individual shall be permitted to cast a provisional ballot as follows:
(1) An election official at the polling place shall notify the individual that the individual may cast a provisional ballot in that election.
(2)The individual shall be permitted to cast a provisional ballot at that polling place upon the execution of a written affirmation by the individual before an election official at the polling place stating that the individual is—
(A) a registered voter in the jurisdiction in which the individual desires to vote; and
(B) eligible to vote in that election.
Thus, provisional ballots already satisfy any state-level requirement for countywide access, while preserving precinct-based voting to restore auditable paper records, guarnatee ballot secrecy, and strengthen our chain of custody for precinct returns by keeping all ballots of a precinct together.
This will inherently allow for speedy, accurate and AFFORDABLE recounts, which every candidate will appreciate.
How Countywide Vote Centers Took Hold with ePoll Books
The push for countywide vote centers came alongside the introduction of electronic poll books. Just as paper poll books pair naturally with precinct-level elections, electronic poll books were sold as necessary for countywide systems.
After the passage of HAVA, offering states funding to modernize their election methods, the provisional ballot mandate was a perfect lead into the transition away from paper poll books into computerized poll books with internet connectivity. The concept was that you do not need to use as many provisional ballots if anyone can cast a regular ballot at any location, as opposed to voting in their assigned precinct location closest to their registered home address. Many states authorized the use of countywide vote centers, and either were simply not briefed on the potential exacerbation of the existing ballot secrecy issue with absentee voting, or they deliberately did not inform the voters of that concern when they moved to adopt epoll books in order to switch to voting countywide. Mixing ballots across the county has rendered audits and recounts too time consuming and laborious to conduct in full. Hours are required simply for sorting ballots from all polling locations across the county.
Regardless, countywide vote centers were incorporated into many state election procedures, including passing laws that allow this where it was previously expressly prohibited.
The argument was “convenience”—to allow voters to cast a regular ballot anywhere without duplicate voting. But the reality of this method is:
Electronic poll books require internet connectivity.
They can fail or go offline, leaving systems unable to prevent duplicate votes.
They create unnecessary security vulnerabilities.
Countywide vote centers appear to have been a facade to push electronic poll books into elections nationwide. This is further evidenced by lobbying from voting-system vendors and election-themed NGOs, which aggressively promoted countywide vote centers after HAVA’s passage.
Returning to Secure, Precinct-Based Voting
HAVA already ensures that no eligible voter is denied a ballot. Provisional ballots are the federally mandated fail-safe. They provide countywide access while still allowing ballots to be cast and counted at the precinct level—preserving both secrecy and auditability.
Restoring precinct-based voting would mean:
Voters cast regular ballots at their assigned precinct or assigned polling place.
ePoll Books used only for voter check-in and ballot style production.
Paper poll book determines who casts a regular ballot into the ballot box.
Voters who appear at location where they are not assigned can still vote their proper ballot style by casting a provisional ballot, as federal law requires.
Ballots remain grouped by precinct, ensuring accurate election night reporting, speedy recounts and audits, preserving anonymity, and strengthening chain of custody.
This Approach:
Preserves countywide access without compromising precinct integrity.
Restores accurate precinct-level election night reporting.
Protects ballot secrecy by eliminating cross-precinct reconciliation risks.
Supports auditability through hand-marked, hand-counted paper ballots.
Relies on existing federal law to ensure no voter is turned away.
Adheres to state and federal mandates of auditability, ballot secrecy and chain of custody.
With stronger chain of custody, this system restores transparency, security, and public trust—without the need for new laws. It simply relies on the framework we already have, returning to what has worked for generations.
Conclusion
Because auditability and ballot secrecy, evidenced by a strong chain of custody for precinct returns, are federal and state law, we have to return to casting all ballots of a precinct together. To do that, we need to assign them to existing locations.
We also have to give provisionals regardless, and using paper poll books for regular ballots, the rest are provisional, epoll books to check in all voters and generate proper ballot style, we can accommodate all voters, regular and provisional, with their proper ballot style, ensure ballot secrecy, and thats what we have to do.
Otherwise all of our elections are totally unable to be properly audited. Every county does it differently. Heider Garcia of Dallas County redacted all the ballot info. Clint, his replacement in Tarrant has cleverly removed the voter roster by location, so he does not have to redact ballot information. Though this is a clever way to avoid redaction of the actual ballots, this is not auditability, it is a willing cover up of a larger civil rights issue, ordered by the Texas Secretary of State’s office of Elections, to protect an unlawful voting system.
This office of elections is managed by members of election-themed NGOs who are totally sponsored by Voting System Vendors. Americans in every state should be asking whether their Chief Election Official or Election Board is actually serving voters or shielding voting system vendors. When state election staff are tied to vendor-funded nonprofits, and redaction orders are used to block scrutiny, it raises legitimate concerns about conflicts of interest and the fair interpretation of state and federal election law.
Citations:
1. Election Administrator’s Authority in Primary Elections: [Chapter 172]
a. Accept Filings for Office from Party Chair [172.029]
b. Maintain County Elections Website [172.055]
c. Produce Miscellaneous Ballots for Chair [172.090]
d. Post Notice of Election and Combined Precincts [172.1112]
e. Produce pre-election List of Registered Precinct Voters and post-election Turnout File for Chair [172.1141]
f. Submit Canvass Report to SOS [172.116]
g. Enter Primary Results to County Database [172.123]
h. Prepare Precinct Results and Report to SOS [172.124]
i. Supervise Overall Conduct of Election Exclusively Under the Agreement to a Joint Primary [172.126]
j. Contract with State Chair in the Absence of a County Chair [172.128]
k. Serve as Early Voting Clerk with the same authority as an Election Day Judge at a regular polling location [83.001, 83.002]
2. Party Rights in State Law:
a. Overall Authority over Primary Elections [172.111]
(Authority lies with the party executive committee to oversee the conduct, no exception for early voting)
b. Right of Chair to negotiate Contract for Primary [31.093]
(Sections c, d, e, outline the requirements of the County Elections Clerk)
(No exceptions made for the supervision of the conduct of primary during Early Voting in the contract)
(No mention of necessity to bind both parties to the same methods in their primaries)
3. Countywide Access Laws:
a. Early Voting Countywide Access [85.066]
(Does not/cannot guarantee every voter a regular, non-provisional ballot at every location)
(No Voter will be denied the right to vote; provisional ballots will allow us to determine eligibility for voters who choose to vote outside of their assigned precinct while keeping most ballots cast by precinct for an accurate and speedy hand count of precinct returns)
a. Election Day (Countywide Polling Place Program) [43.007]
(Does not/ cannot guarantee every voter a regular, non-provisional ballot at every location)
(No Voter will be denied the right to vote; provisional ballots will allow us to determine eligibility for voters who choose to vote outside of their assigned precinct while keeping most ballots cast by precinct for an accurate and speedy hand count of precinct returns)
4. Ballot Secrecy:
a. Ballot Secrecy is outlined as part of the Legislative Intent for the entire election code [1.0015] and applies to all elections in Texas [1.002]
b. Ballot Secrecy is mandated for all voting systems used in Texas Elections [122.001]
c. Ballot Secrecy Violations Acknowledged in HART and ES&S Voting Systems; Redactions Ordered by SOS [Election Advisory 2024-20]
(Redaction destroys auditability and public access to election records to cover up an inherent violation of ballot secrecy. Public access is not the issue, the lack of a guarantee of ballot secrecy is the issue. Redaction is not the solution)
(Casting all ballots of a precinct together is the only remedy, and it must be administered where possible)
5. Federal Laws:
a. Auditability [52USC §21081. Voting systems standards]
(Auditable Paper Trail Mandated)
b. Preservation of Records [52USC §20701. Retention and preservation of records and papers by officers of elections; deposit with custodian; penalty for violation]
(Records Preserved for Examination for minimum of 22 months)
c. Paper Record is Official Record [52USC §21081. Voting systems standards]
(Paper Records are Official Records for Elections)
a. Use of Provisional Ballots [52USC §21082. Provisional voting and voting information requirements]
(For Voters Not on Precinct Qualified Voter List Who Are Registered OR Who Cannot Be Properly Identified)
6. State Hand Count Laws:
a. Chapter 65
(Counting Procedures which ECHO follows)
b. Chapter 66
(Reporting Procedures which ECHO follows)
7. Combination of Precinct Polling Location Laws:
a. Combining Precincts in Primary [42.0051]
(Requires adherence to 42.005 for combination of precincts based on ballot style)
b. Consolidating Precincts in Primary [42.009]
(No reference to other code, simply allows parties to consolidate precincts into adequate polling locations as necessary to accommodate all voters)
(TBTR Strategies recommends simply consolidating precincts into existing polling locations and not necessarily combining precincts with identical ballot styles)
8. Texas Constitution Article 6, Section 2
(c) The privilege of free suffrage shall be protected by laws regulating elections and prohibiting under adequate penalties all undue influence in elections from power, bribery, tumult, or other improper practice.
Adherence to federal mandates is non-negotiable, and all state laws must be designed in such a way that honors and upholds both Federal Law and the State Constitution
Citations: Texas Election Code as an EXAMPLE
1. Countywide Access Laws:
a. Early Voting Countywide Access [85.066]
(Does not/cannot guarantee every voter a regular, non-provisional ballot at every location)
(No Voter will be denied the right to vote; provisional ballots will allow us to determine eligibility for voters who choose to vote outside of their assigned precinct while keeping most ballots cast by precinct for an accurate and speedy hand count of precinct returns)
b. Election Day (Countywide Polling Place Program) [43.007]
(Does not/ cannot guarantee every voter a regular, non-provisional ballot at every location)
(No Voter will be denied the right to vote; provisional ballots will allow us to determine eligibility for voters who choose to vote outside of their assigned precinct while keeping most ballots cast by precinct for an accurate and speedy hand count of precinct returns)
2. Ballot Secrecy:
a. Ballot Secrecy is outlined as part of the Legislative Intent for the entire election code [1.0015] and applies to all elections in Texas [1.002]
b. Ballot Secrecy is mandated for all voting systems used in Texas Elections [122.001]
c. Ballot Secrecy Violations Acknowledged in HART and ES&S Voting Systems; Redactions Ordered by SOS [Election Advisory 2024-20]
(Redaction destroys auditability and public access to election records to cover up an inherent violation of ballot secrecy. Public access is not the issue, the lack of a guarantee of ballot secrecy is the issue. Redaction is not the solution)
(Casting all ballots of a precinct together is the only remedy, and it must be administered where possible)
3. Federal Laws:
a. Auditability [52USC §21081. Voting systems standards]
(Auditable Paper Trail Mandated)
b. Preservation of Records [52USC §20701. Retention and preservation of records and papers by officers of elections; deposit with custodian; penalty for violation]
(Records Preserved for Examination for minimum of 22 months)
c. Paper Record is Official Record [52USC §21081. Voting systems standards]
(Paper Records are Official Records for Elections)
d. Use of Provisional Ballots [52USC §21082. Provisional voting and voting information requirements]
(For Voters Not on Precinct Qualified Voter List Who Are Registered OR Who Cannot Be Properly Identified)
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Aubree
Founder TBTR.US
©TBTR Strategies