With Races on the Line, Number of Provisional Ballots Cast Jumps

Maryland’s 24 local election boards are reporting to the State Board of Elections in Annapolis that fewer than 21,000 provisional ballots were cast statewide in Tuesday’s primary, though that number is expected to creep slightly higher before all the ballots are finally examined and counted on Thursday, election officials said.

The number of actual provisional voters – 20,428 so far — is nowhere near the roughly 87,200 residents who were unable to change their voter registration at the Motor Vehicle Administration because of a computer glitch and would have had to use a provisional ballot on Election Day, had they voted.

“They’re not going to get thousands more, but I would not be surprised if it goes up a little bit,” said Nikki Baines Charlson, Maryland’s deputy elections administrator.

At 10 a.m. Thursday, local elections boards will begin the official canvass of the provisional ballots, including final determination of which ones should be completely or partially rejected under the provisions of state law — a number that four years ago approached 60 percent.

The outcomes of at least three high-profile elections – those for Baltimore County and Montgomery County executive, as well as the Maryland Senate seat representing Baltimore City’s 43rd District — hang in the balance, dependent on the count of those provisional ballots and the outcome of the second and final canvass of absentee ballots on Friday.

For instance, in the ongoing battle for Baltimore County executive, the already narrow lead of John A. “Johnny O” Olszewski Jr. over state Sen. James Brochin for the Democratic nomination dwindled to just 42 votes Thursday after tallying the first absentee ballots counted. The third major candidate, County Councilwoman Vicki L. Almond, slipped further behind after the first absentee canvass, trailing Brochin by 983 votes.

The MVA software snafu, revealed on the eve of the election, has raised concerns in a variety of camps, particularly in Baltimore County, where lawyers for Olszewski asked the local Board of Elections on Friday to carefully document its handling of each of the provisional ballots cast, which number 2,501 there so far, and report its findings daily before Thursday.

In a letter e-mailed late Friday afternoon to Katie A. Brown, director of the Baltimore County Board of Elections (BCBOE), Andrew D. Levy, an Olszewski campaign lawyer, stressed the significance of the public’s right to observe the board as it assessed the validity of each provisional ballot.

“Particularly important is that all evidentiary determinations of provisional voter eligibility or ineligibility be retained and made available for inspection on a real-time rolling basis,” Levy wrote.

“It is my understanding that the process of determining the validity of provisional ballots by the BCBOE has already begun,” Levy wrote. “In the interest of transparency and accountability of our local government, we ask that the BCBOE document certain details about its determinations throughout the process.”

Charlson, Maryland’s deputy elections administrator, made clear that the actual count of eligible provisional ballots would not take place until Thursday and that the state board’s by-county numbers totaling 20,428 so far were preliminary.

“These are literally the number of applications and envelopes they have,” Charlsion said. “They [the local boards] haven’t opened any of the ballots. They don’t know anything about the counts inside. These are just a physical count of how many provisional ballot applications they received.”

Levy informed Brown, the Baltimore County elections director, that Almond was joining Olszewski in making the request to document actions with regard to the ballots. It was not immediately clear where the Brochin campaign stood.

Andrew G. Bailey, a lawyer for the county election board, answered Levy Friday by saying officials were preparing a response and that he hoped all three major candidates – Olszewski, Almond and Brochin — could discuss the matter in a conference call Monday.

At least two other races could be affected by the outcome of the provisional ballots.

In Montgomery County, the number of provisional ballots cast now stands at 3,181, which could flip the early primary results the other way in the too-close-to-call race for the Democratic nomination for county executive – even before the last of the absentee ballots are counted Friday.

At last count, Montgomery County Councilman Marc B. Elrich leads with 35,657 votes, but is just 269 votes ahead of David T. Blair, who is in second place in the six-candidate race for the party nomination, with 35,388 votes.

In Baltimore City, state Sen. Joan Carter Conway, chairwoman of the powerful Senate Education, Health and Environmental Affairs Committee, still trails her challenger, Del. Mary L. Washington, by 469 votes in the race for the 43rd District Senate seat.

The number of Baltimore’s provisional ballots stood at 4,088 on Friday – second only to 4,703 in Prince George’s County — “but we do know they are still unpacking supplies, so that number could go up,” Charlson said.

How many of those provisional ballots were cast in the 43rd District is unknown.

The MVA blunder meant that 87,200 voters who attempted to change either their address or party affiliation using the agency kiosks or website without paying for other services, such as a new driver’s license, would have had to use a provisional ballot to vote in the primary.

The changes voters thought they were making were never transmitted by the MVA to the State Board of Elections for processing because of a computer programming error, state officials have said. The failures occurred in the 13½ months between April 22, 2017, and June 5, 2018, they said.

While the preliminary 20,428 number is lower than many expected immediately after the MVA revelation just before the primary, the number of provisional ballots this year exceeds by nearly a third the 14,496 provisionals cast in the 2014 gubernatorial primary.

The reason that number is not as high as many first feared when the MVA news broke was Tuesday’s low voter turnout, the first estimates for which hover around 25 percent statewide, not far from the 24.6 percent turnout in the 2014 primary.

Unlike with absentee ballots – where party affiliation is known — trying to reasonably estimate, handicap or even guess the outcome of those races is all but impossible, based on the provisional ballots.

Election officials in the largest of Maryland’s jurisdictions count provisional ballots differently and do not break down the number of uncounted ballots by party affiliation.

Complicating that seemingly insurmountable math problem is that in each election a percentage of provisional ballots is rejected – either totally or partially – for any of 16 different reasons, ranging from someone’s already having voted in the election to a resident’s never having been registered to vote in the first place.

For instance, in the 2014 primary, only 42 percent of the 14,496 provisional ballots cast statewide were fully accepted and counted, another 21.8 percent partially counted, and 36 percent of the ballots – a total of 5,221 — were rejected outright.

Yet, while markedly higher than the 2014 primary, the number of provisional ballots this year is far from approaching, say, the number in the general election four years ago.

In the 2014 general election, 64.3 percent of the 35,064 provisional ballots cast were fully accepted and counted, 28.3 percent were partially counted, and just 7.4 percent – 2,605 ballots — rejected.

The final canvass and local certification of election results are scheduled for Friday, July 6, after the count of late-arriving absentee ballots.

Petitions for a recount in a local race must be filed by Monday, July 9; petitions for a recount in a state race must be filed by Thursday, July 12.

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