CHAPTER 5. COUNTING PROVISIONAL BALLOTS
IC 3-11.7-5
Chapter 5. Counting Provisional Ballots
IC 3-11.7-5-1
Requirements and deadlines for counting ballots
Sec. 1. (a) After the close of the polls, provisional ballots shall be
counted as provided in this chapter.
(b) Notwithstanding IC 3-5-4-1.5 and any legal holiday observed
under IC 1-1-9, all provisional ballots must be counted by not later
than noon ten (10) days following the election.
As added by P.L.126-2002, SEC.87. Amended by P.L.14-2004,
SEC.153; P.L.221-2005, SEC.56; P.L.164-2006, SEC.122.
IC 3-11.7-5-1.5
Provisional ballot; counting when ballot made invalid by mistake
or inadvertence of election officer; when election board may
determine not to count; effect of affidavit evidence
Sec. 1.5. (a) Subsection (c) applies to a provisional ballot that the
county election board determines, by a majority vote of its members
and in accordance with this title:
(1) has been marked and cast by a voter in compliance with this
title; but
(2) may not otherwise be counted solely as the result of the act
or failure to act of an election officer.
(b) Subsection (c) does not apply to either of the following:
(1) A provisional ballot cast by an individual who seeks to vote
in an election as the result of a court or other order extending
the time established for closing the polls under IC 3-11-8-8 if
the county election board determines or is directed under a
court or other order that all provisional ballots issued after
regular poll closing hours are not to be counted.
(2) A provisional ballot that is required to be rejected by a
county election board under section 2(b) of this chapter as the
result of information or lack of information provided by a voter
registration agency.
(c) The sealed envelope containing a provisional ballot described
in subsection (a) shall nevertheless be opened under section 4 of this
chapter and the provisional ballot counted unless evidence of fraud,
tampering, or misconduct affecting the integrity of the ballot is
demonstrated. The act or failure to act by an election officer is not by
itself evidence of fraud, tampering, or misconduct affecting the
integrity of the ballot.
(d) Notwithstanding subsection (c), if the county election board,
by a majority vote of its members, determines that there is evidence
presented to the board demonstrating that the individual who cast the
provisional ballot was ineligible to cast a regular ballot in that
precinct, or evidence has been presented to the board demonstrating
any other reason set forth in HAVA or this title not to count a
provisional ballot, the provisional ballot may not be counted.
(e) This subsection applies to a provisional ballot cast by a voter
after the voter was challenged solely because the voter was unable or
declined to provide proof of identification and not for any other
reason. If the voter later complies with the requirements of this title
for proof of identification, the provisional ballot cast by the voter
shall be counted in accordance with sections 2 and 2.5 of this
chapter.
(f) This subsection applies to a provisional ballot cast by a voter
after the voter was challenged for any reason except the voter's
inability or declination to provide proof of identification. If the only
evidence before the county election board on the question of
counting of the provisional ballot cast by the voter is:
(1) the affidavit of the voter who cast the provisional ballot; and
(2) the affidavit of a challenger challenging the voter who cast
the provisional ballot;
the provisional ballot shall be counted.
As added by P.L.221-2005, SEC.99. Amended by P.L.164-2006,
SEC.123.
IC 3-11.7-5-2
Criteria for determining validity of ballots
Sec. 2. (a) Except as provided in section 5 of this chapter, if the
county election board determines that all the following apply, a
provisional ballot is valid and shall be counted under this chapter:
(1) The affidavit executed by the provisional voter under
IC 3-11.7-2-1 is properly executed.
(2) The provisional voter is a qualified voter of the precinct and
has provided proof of identification, if required, under
IC 3-10-1, IC 3-11-8, or IC 3-11-10-26.
(3) Based on all the information available to the county election
board, including:
(A) information provided by the provisional voter;
(B) information contained in the county's voter registration
records; and
(C) information contained in the statewide voter registration
file;
the provisional voter registered to vote at a registration agency
under this article on a date within the registration period.
(b) If the provisional voter has provided information regarding the
registration agency where the provisional voter registered to vote, the
board shall promptly make an inquiry to the agency regarding the
alleged registration. The agency shall respond to the board not later
than noon of the first Friday after the election, indicating whether the
agency's records contain any information regarding the registration.
If the agency does not respond to the board's inquiry, or if the agency
responds that the agency has no record of the alleged registration, the
board shall reject the provisional ballot. The board shall endorse the
ballot with the word "Rejected" and document on the ballot the
inquiry and response, if any, by the agency.
(c) Except as provided in section 5 of this chapter, a provisional
ballot cast by a voter described in IC 3-11.7-2-1(b) is valid and shall
be counted if the county election board determines under this article
that the voter filed the documentation required under IC 3-7-33-4.5
and 42 U.S.C. 15483 with the county voter registration office not
later than the closing of the polls on election day.
As added by P.L.126-2002, SEC.87. Amended by P.L.209-2003,
SEC.176; P.L.109-2005, SEC.12; P.L.103-2005, SEC.15.
IC 3-11.7-5-2.5
Determining validity of provisional ballot
Sec. 2.5. (a) A voter who:
(1) was challenged under IC 3-10-1, IC 3-11-8, or
IC 3-11-10-26 as a result of the voter's inability or declination
to provide proof of identification; and
(2) cast a provisional ballot;
may personally appear before the circuit court clerk or the county
election board not later than the deadline specified by section 1 of
this chapter for the county election board to determine whether to
count a provisional ballot.
(b) Except as provided in subsection (c) or (e), if the voter:
(1) provides proof of identification to the circuit court clerk or
county election board; and
(2) executes an affidavit before the clerk or board, in the form
prescribed by the commission, affirming under the penalties of
perjury that the voter is the same individual who:
(A) personally appeared before the precinct election board;
and
(B) cast the provisional ballot on election day;
the county election board shall find that the voter's provisional ballot
is valid and direct that the provisional ballot be opened under section
4 of this chapter and processed in accordance with this chapter.
(c) If the voter executes an affidavit before the circuit court clerk
or county election board, in the form prescribed by the commission,
affirming under the penalties of perjury that:
(1) the voter is the same individual who:
(A) personally appeared before the precinct election board;
and
(B) cast the provisional ballot on election day; and
(2) the voter:
(A) is:
(i) indigent; and
(ii) unable to obtain proof of identification without the
payment of a fee; or
(B) has a religious objection to being photographed;
the county election board shall determine whether the voter has been
challenged for any reason other than the voter's inability or
declination to present proof of identification to the precinct election
board.
(d) If the county election board determines that the voter
described in subsection (c) has been challenged solely for the
inability or declination of the voter to provide proof of identification,
the county election board shall:
(1) find that the voter's provisional ballot is valid; and
(2) direct that the provisional ballot be:
(A) opened under section 4 of this chapter; and
(B) processed in accordance with this chapter.
(e) If the county election board determines that a voter described
in subsection (b) or (c) has been challenged for a cause other than the
voter's inability or declination to provide proof of identification, the
board shall:
(1) note on the envelope containing the provisional ballot that
the voter has complied with the proof of identification
requirement; and
(2) proceed to determine the validity of the remaining
challenges set forth in the challenge affidavit before ruling on
the validity of the voter's provisional ballot.
(f) If a voter described by subsection (a) fails by the deadline for
counting provisional ballots referenced in subsection (a) to:
(1) appear before the county election board; and
(2) execute an affidavit in the manner prescribed by subsection
(b) or (c);
the county election board shall find that the voter's provisional ballot
is invalid.
As added by P.L.109-2005, SEC.13. Amended by P.L.103-2005,
SEC.16.
IC 3-11.7-5-3
Consequence for ballots not satisfying criteria
Sec. 3. (a) If the board determines that the affidavit executed by
the provisional voter has not been properly executed, that the
provisional voter is not a qualified voter of the precinct, that the
voter failed to provide proof of identification when required under
IC 3-10-1, IC 3-11-8, or IC 3-11-10-26, or that the provisional voter
did not register to vote at a registration agency under this article on
a date within the registration period, the board shall make the
following findings:
(1) The provisional ballot is invalid.
(2) The provisional ballot may not be counted.
(3) The provisional ballot envelope containing the ballots cast
by the provisional voter may not be opened.
(b) If the county election board determines that a provisional
ballot is invalid, a notation shall be made on the provisional ballot
envelope: "Provisional ballot determined invalid".
As added by P.L.126-2002, SEC.87. Amended by P.L.209-2003,
SEC.177; P.L.109-2005, SEC.14; P.L.103-2005, SEC.17.
IC 3-11.7-5-4
Valid ballots; opening and marking
Sec. 4. If the board determines that a provisional ballot is valid
under section 2 of this chapter, the provisional ballot envelope shall
be opened. The outside of each provisional ballot shall also be
marked to identify the precinct and the date of the election of the
ballots.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-5
Ballots rejected; absence of poll clerks' initials
Sec. 5. (a) If any ballot cast by a provisional voter does not
contain the initials of the poll clerks, the ballot shall, without being
unfolded to disclose how the ballot is marked, be endorsed with the
word "Rejected".
(b) All rejected provisional ballots shall be enclosed and securely
sealed in an envelope on which is written "Rejected provisional
ballots.".
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-6
Repealed
(Repealed by P.L.230-2005, SEC.91.)
IC 3-11.7-5-7
Counting ballots by laying on table
Sec. 7. The provisional ballots shall be counted by laying each
ballot upon a table in the order in which the ballots were opened.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-8
Reading names of candidates; ballot questions
Sec. 8. (a) During the counting of the ballots, one (1) counter shall
read the name of the candidates and ballot questions voted for from
the ballots.
(b) A:
(1) member of the county election board who is not a member
of the same political party as the counter; or
(2) representative designated by the member;
shall view the ballots as the names and ballot questions are read.
As added by P.L.126-2002, SEC.87. Amended by P.L.209-2003,
SEC.178.
IC 3-11.7-5-9
Protest counting of ballots
Sec. 9. During the counting of the ballots:
(1) the counter counting the ballots;
(2) a member of the county election board; or
(3) a representative designated by the member;
may protest the counting of any ballot or any part of a ballot.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-10
Referral of protested ballot to county election board
Sec. 10. If the counters cannot agree whether to count a ballot
following a protest under section 9 of this chapter, the question shall
be referred to the county election board for a decision.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-11
Counters signing protested ballots
Sec. 11. Following a decision by the counters or the county
election board, the counters shall sign each protested ballot.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-12
Noting whether protested ballot counted
Sec. 12. If a ballot or any part of a ballot is protested and the
protest is resolved, the counter immediately shall write on the back
of the protested ballot the word "counted" or "not counted", as
appropriate.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-13
Separate counting of ballots from other precincts
Sec. 13. A counter may not count provisional ballots for a precinct
under this chapter while counting provisional ballots for any other
precinct.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-14
Counting of ballots by more than one set of counters
Sec. 14. (a) This section applies if at least two (2) sets of counters
in a county are counting provisional ballots under this chapter.
(b) A set of counters may count provisional ballots from a
precinct while another set of counters is counting provisional ballots
from another precinct in the county if each set of counters counts the
ballots in compliance with section 8 of this chapter.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-15
Counting write-in ballots
Sec. 15. (a) This section applies to the counting of write-in
provisional ballots.
(b) If a voter writes an abbreviation, a misspelling, or other minor
variation instead of the correct name of a candidate or political party,
that vote shall be counted if the intent of the voter can be determined.
(c) If a voter casts a ballot under this section for President or Vice
President of the United States and writes in the name of a candidate
or political party that has not certified a list of electors under
IC 3-10-4-5, the vote for President or Vice President of the United
States is void. The remaining votes on the ballot may be counted.
(d) IC 3-12-1-7 applies to write-in provisional ballots.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-16
Certificate of provisional vote count
Sec. 16. When all the votes have been counted, the counters shall
prepare a certificate stating the number of votes that each candidate
received for each office and the number of votes cast on each public
question.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-17
Entry and memorandum of vote count
Sec. 17. The number of votes that each candidate and public
question received shall be written in words and numbers. The
counters shall prepare a memorandum of the total votes cast for each
candidate and on each public question and ensure that each member
of the county election board receives a copy of the memorandum.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-18
Delivery of certificates and tally papers to county election board
Sec. 18. The counters shall deliver the certificates prepared under
section 16 of this chapter and the tally papers to the county election
board immediately upon the tabulation of the vote in each precinct.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-19
Securing ballots, certificates, and tally papers; delivery
Sec. 19. As soon as the ballots have been counted, the counters
shall do the following in the presence of the county election board:
(1) Place in a strong paper envelope or bag the following:
(A) All provisional ballots, voted and spoiled.
(B) All provisional ballots:
(i) determined invalid under section 3 of this chapter; or
(ii) rejected under section 5 of this chapter.
(C) All protested and uncounted provisional ballots.
(D) All provisional ballot envelopes.
(E) All executed affidavits relating to the provisional ballots.
(F) The tally papers.
(2) Securely seal the envelope or bag.
(3) Have both counters initial the envelope or bag.
(4) Plainly mark on the outside of the envelope or bag in ink the
precinct in which the provisional ballots were cast.
(5) Deliver the envelope or bag to the circuit court clerk.
(6) Notify the circuit court clerk of the number of ballots placed
in the envelope or bag.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-20
Oath of ballot counters
Sec. 20. Upon delivery of the envelope or bag to the circuit court
clerk, each counter shall take and subscribe an oath before the clerk
stating that the counter:
(1) securely kept the ballots and papers in the envelope or bag;
(2) did not permit any person to open the envelope or bag or to
otherwise touch or tamper with the ballots; and
(3) has no knowledge of any other person opening the envelope
or bag.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-21
Filing ballot counters' oaths
Sec. 21. The circuit court clerk shall file the oath taken under
section 20 of this chapter with the clerk's other election documents.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-22
Secure storage of ballots and papers
Sec. 22. The circuit court clerk shall place the envelope or bag in
a receptacle provided by the county executive with two (2) different
locks.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-23
Locks on stored ballots and papers
Sec. 23. The circuit court clerk shall do the following:
(1) Lock the receptacle provided under section 22 of this
chapter.
(2) Retain one (1) key to one (1) lock of the receptacle.
(3) Give one (1) key to the other lock of the receptacle to the
member of the county election board who is not a member of
the same political party as the clerk.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-24
Time for storage of ballots and papers
Sec. 24. The circuit court clerk shall preserve the receptacle
containing the envelope or bag in the clerk's office for the period
required under IC 3-10-1-31 or IC 3-10-1-31.1.
As added by P.L.126-2002, SEC.87. Amended by P.L.14-2004,
SEC.154.
IC 3-11.7-5-25
Time for retention of ballots and papers when election contested
Sec. 25. If the election is contested, the clerk shall preserve the
receptacle containing the envelope or bag as long as the contest is
undetermined. During that period, the clerk shall keep the receptacle
securely locked, subject only to an order of the court trying a contest.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-26
Destruction of stored ballots and papers
Sec. 26. When permitted under IC 3-10-1-31 or IC 3-10-1-31.1,
the clerk and a county election board member of the opposite
political party shall remove the envelope or bag from the receptacle
and destroy the envelope or bag.
As added by P.L.126-2002, SEC.87. Amended by P.L.14-2004,
SEC.155.
IC 3-11.7-5-27
Contract with state educational institution for disposal of ballots
Sec. 27. A county election board may contract with a state
educational institution to dispose of the ballots. The contract must
provide that:
(1) the ballots will be used by the state educational institution
to conduct election research; and
(2) the state educational institution may not receive any ballots
under this section until the period for retention under
IC 3-10-1-31 or IC 3-10-1-31.1 has expired.
As added by P.L.126-2002, SEC.87. Amended by P.L.14-2004,
SEC.156; P.L.2-2007, SEC.14.
IC 3-11.7-5-28
News media certificate of provisional ballot totals
Sec. 28. Immediately upon completion of the vote count, the
counters shall make and sign a certificate for the news media
showing the total number of provisional ballot votes received by each
candidate and on each public question in the precinct.
As added by P.L.126-2002, SEC.87.
IC 3-11.7-5-29
Delivery of news media certificate
Sec. 29. The counters shall deliver the certificate to the circuit
court clerk as soon as the certificate is completed. The circuit court
clerk shall deliver the certificate made for the news media to any
person designated to receive the certificate by the editors of the
newspapers published in the county or by the managers of the radio
and television stations operating in the county immediately upon the
completion of the certificate, but not before the closing of the polls.
As added by P.L.126-2002, SEC.87.