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 becounted as provided in this chapter.
(b) Notwithstanding IC 3-5-4-1.5 and any legal holiday observedunder IC 1-1-9, all provisional ballots must be counted by not laterthan 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 mistakeor inadvertence of election officer; when election board maydetermine not to count; effect of affidavit evidence
Sec. 1.5. (a) Subsection (c) applies to a provisional ballot that thecounty election board determines, by a majority vote of its membersand in accordance with this title:
(1) has been marked and cast by a voter in compliance with thistitle; but
(2) may not otherwise be counted solely as the result of the actor 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 votein an election as the result of a court or other order extendingthe time established for closing the polls under IC 3-11-8-8 ifthe county election board determines or is directed under acourt or other order that all provisional ballots issued afterregular poll closing hours are not to be counted.
(2) A provisional ballot that is required to be rejected by acounty election board under section 2(b) of this chapter as theresult of information or lack of information provided by a voterregistration agency.
(c) The sealed envelope containing a provisional ballot describedin subsection (a) shall nevertheless be opened under section 4 of thischapter and the provisional ballot counted unless evidence of fraud,tampering, or misconduct affecting the integrity of the ballot isdemonstrated. The act or failure to act by an election officer is not byitself evidence of fraud, tampering, or misconduct affecting theintegrity of the ballot.
(d) Notwithstanding subsection (c), if the county election board,by a majority vote of its members, determines that there is evidencepresented to the board demonstrating that the individual who cast theprovisional ballot was ineligible to cast a regular ballot in thatprecinct, or evidence has been presented to the board demonstratingany other reason set forth in HAVA or this title not to count aprovisional 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 ordeclined to provide proof of identification and not for any otherreason. If the voter later complies with the requirements of this titlefor proof of identification, the provisional ballot cast by the votershall be counted in accordance with sections 2 and 2.5 of thischapter.
(f) This subsection applies to a provisional ballot cast by a voterafter the voter was challenged for any reason except the voter'sinability or declination to provide proof of identification. If the onlyevidence before the county election board on the question ofcounting 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 castthe 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 thecounty election board determines that all the following apply, aprovisional ballot is valid and shall be counted under this chapter:
(1) The affidavit executed by the provisional voter underIC 3-11.7-2-1 is properly executed.
(2) The provisional voter is a qualified voter of the precinct andhas provided proof of identification, if required, underIC 3-10-1, IC 3-11-8, or IC 3-11-10-26.
(3) Based on all the information available to the county electionboard, including:
(A) information provided by the provisional voter;
(B) information contained in the county's voter registrationrecords; and
(C) information contained in the statewide voter registrationfile;
the provisional voter registered to vote at a registration agencyunder this article on a date within the registration period.
(b) If the provisional voter has provided information regarding theregistration agency where the provisional voter registered to vote, theboard shall promptly make an inquiry to the agency regarding thealleged registration. The agency shall respond to the board not laterthan noon of the first Friday after the election, indicating whether theagency's records contain any information regarding the registration.If the agency does not respond to the board's inquiry, or if the agencyresponds that the agency has no record of the alleged registration, theboard shall reject the provisional ballot. The board shall endorse theballot with the word "Rejected" and document on the ballot theinquiry and response, if any, by the agency.
(c) Except as provided in section 5 of this chapter, a provisionalballot 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 articlethat the voter filed the documentation required under IC 3-7-33-4.5and 42 U.S.C. 15483 with the county voter registration office notlater 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, orIC 3-11-10-26 as a result of the voter's inability or declinationto provide proof of identification; and
(2) cast a provisional ballot;
may personally appear before the circuit court clerk or the countyelection board not later than the deadline specified by section 1 ofthis chapter for the county election board to determine whether tocount 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 orcounty election board; and
(2) executes an affidavit before the clerk or board, in the formprescribed by the commission, affirming under the penalties ofperjury 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 ballotis valid and direct that the provisional ballot be opened under section4 of this chapter and processed in accordance with this chapter.
(c) If the voter executes an affidavit before the circuit court clerkor 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 thepayment of a fee; or
(B) has a religious objection to being photographed;
the county election board shall determine whether the voter has beenchallenged for any reason other than the voter's inability ordeclination to present proof of identification to the precinct electionboard.
(d) If the county election board determines that the voterdescribed in subsection (c) has been challenged solely for theinability 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 describedin subsection (b) or (c) has been challenged for a cause other than thevoter's inability or declination to provide proof of identification, theboard shall:
(1) note on the envelope containing the provisional ballot thatthe voter has complied with the proof of identificationrequirement; and
(2) proceed to determine the validity of the remainingchallenges set forth in the challenge affidavit before ruling onthe validity of the voter's provisional ballot.
(f) If a voter described by subsection (a) fails by the deadline forcounting 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 ballotis 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 bythe provisional voter has not been properly executed, that theprovisional voter is not a qualified voter of the precinct, that thevoter failed to provide proof of identification when required underIC 3-10-1, IC 3-11-8, or IC 3-11-10-26, or that the provisional voterdid not register to vote at a registration agency under this article ona date within the registration period, the board shall make thefollowing findings:
(1) The provisional ballot is invalid.
(2) The provisional ballot may not be counted.
(3) The provisional ballot envelope containing the ballots castby the provisional voter may not be opened.
(b) If the county election board determines that a provisionalballot is invalid, a notation shall be made on the provisional ballotenvelope: "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 validunder section 2 of this chapter, the provisional ballot envelope shallbe opened. The outside of each provisional ballot shall also be
marked to identify the precinct and the date of the election of theballots.
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 notcontain the initials of the poll clerks, the ballot shall, without beingunfolded to disclose how the ballot is marked, be endorsed with theword "Rejected".
(b) All rejected provisional ballots shall be enclosed and securelysealed in an envelope on which is written "Rejected provisionalballots.".
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 eachballot 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 shallread the name of the candidates and ballot questions voted for fromthe ballots.
(b) A:
(1) member of the county election board who is not a memberof 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 shallbe 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 countyelection 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 theprotest is resolved, the counter immediately shall write on the backof the protested ballot the word "counted" or "not counted", asappropriate.
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 precinctunder this chapter while counting provisional ballots for any otherprecinct.
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 countersin a county are counting provisional ballots under this chapter.
(b) A set of counters may count provisional ballots from aprecinct while another set of counters is counting provisional ballotsfrom another precinct in the county if each set of counters counts theballots 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-inprovisional ballots.
(b) If a voter writes an abbreviation, a misspelling, or other minorvariation 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 VicePresident of the United States and writes in the name of a candidateor political party that has not certified a list of electors underIC 3-10-4-5, the vote for President or Vice President of the UnitedStates 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 shallprepare a certificate stating the number of votes that each candidatereceived for each office and the number of votes cast on each publicquestion.
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 publicquestion received shall be written in words and numbers. Thecounters shall prepare a memorandum of the total votes cast for eachcandidate and on each public question and ensure that each memberof 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 undersection 16 of this chapter and the tally papers to the county electionboard 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 countersshall 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 theprecinct 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 placedin 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 courtclerk, 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 tootherwise touch or tamper with the ballots; and
(3) has no knowledge of any other person opening the envelopeor 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 undersection 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 ina receptacle provided by the county executive with two (2) differentlocks.
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 thischapter.
(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 themember of the county election board who is not a member ofthe 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 receptaclecontaining the envelope or bag in the clerk's office for the periodrequired 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 thereceptacle containing the envelope or bag as long as the contest isundetermined. During that period, the clerk shall keep the receptaclesecurely 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 oppositepolitical party shall remove the envelope or bag from the receptacleand 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 stateeducational institution to dispose of the ballots. The contract mustprovide that:
(1) the ballots will be used by the state educational institutionto conduct election research; and
(2) the state educational institution may not receive any ballotsunder this section until the period for retention underIC 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, thecounters shall make and sign a certificate for the news mediashowing the total number of provisional ballot votes received by eachcandidate 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 circuitcourt clerk as soon as the certificate is completed. The circuit courtclerk shall deliver the certificate made for the news media to anyperson designated to receive the certificate by the editors of thenewspapers published in the county or by the managers of the radioand television stations operating in the county immediately upon thecompletion of the certificate, but not before the closing of the polls.
As added by P.L.126-2002, SEC.87.