RALEIGH — For a decade, registered North Carolina voters who didn't go to their home precincts on Election Day — by error or on purpose — could still ensure their top choices would count.
They'd fill out a conditional ballot from the incorrect precinct. If officials confirmed soon after that they were legally able to vote in the county, their votes for elections not specific to their home precinct would be tabulated.
But Republicans at the legislature say people should be responsible to know where they're supposed to vote, rather than force election workers to crosscheck their ballots and figure out their lawful choices. So they inserted in their elections overhaul bill passed last month a new law barring those out-of-precinct ballots— usually thousands combined annually in primary and general elections — from being counted at all.
"If you do cast you ballot, you should know which precinct you belong in," said Sen. Bob Rucho, R-Mecklenburg, who shepherded the election law through the Senate, calling the change a "small part of the overall streamlining of the election process."
The prohibition on counting out-of-precinct provisional ballots in the law signed last week by Gov. Pat McCrory hasn't gotten nearly the publicity as provisions requiring photo identification, reducing the number of early-voting days and ending same-day registration during the early-voting period.
But civil rights and voters groups and their allies find the exclusion onerous enough to cite prominently in lawsuits challenging the law they filed immediately after McCrory signed it. People who vote in the incorrect precincts will have their ballots thrown out, even if they are qualified to vote, and their choices for president, governor and Congress won't count.
Critics of the new law say the prohibition is one of many obstacles to voting in the new law by Republican legislators that will harm black voters particularly. The State Board of Elections says voters cast 7,486 provisional ballots on Election Day last November, and almost 90 percent were counted fully or partially.
"It just sends the message that your ballot is not valued," said Bob Hall, executive director of the election reform group Democracy North Carolina. "'We're not here to try to listen to your voice' — that's what this government is saying."
The lawsuits say black voters cast about 30 percent of all out-of-precinct ballots while comprising 22 percent of the state population. Black voters "disproportionately live in low-income neighborhoods without access to transportation or flexible work schedules that might allow them to get to their home precincts," one of the lawsuits says.
The new law still provides citizens 10 days of early voting — down from the current 17 — at county election center where voters are sure to receive their correct ballot. Rucho said the process of election officials wading through out-of-precinct ballots can delay the final outcome of races.
Election workers research the voter's address and what ballot the person would have received had the voter gone to the correct precinct. That ballot is then matched up against the ballot the voter cast in the wrong precinct, and the voter's choices in the races that match up are then counted.
Wake County elections director Cherie Poucher, while not commenting on the new law, said evaluating out-of-precinct ballots is "a very tedious, cumbersome task."
The fight over out-of-precinct provisional ballots dates back years. It contributed to delaying the final outcome of the 2004 race for state school superintendent of public instruction.
Democrat June Atkinson led Republican Bill Fletcher by about 8,500 voters after the November 2004 election. But Fletcher and his lawyer questioned whether state law allowed for at least 11,000 ballots cast in the wrong precincts on Election Day to count toward their totals.
The state Supreme Court ruled in February 2005 in favor of Fletcher, saying state laws "unambiguously require voters to cast their ballots in the precincts of residence." The justices pointed out that election officials were supposed to direct people in the wrong precinct to the correct precinct.
The ruling infuriated Democrats, who controlled the legislature then. They said laws passed as early as 2001 directed people who went to the wrong district to receive a provisional ballot and to have their choices count for all the races in which they were eligible to vote.
Democrats quickly passed laws effectively overturning the court's decision and derailing litigation by Fletcher to attempt to persuade the courts to declare him the winter. The General Assembly declared Atkinson the winner in a vote along partisan lines that summer.
Michael Crowell, who represented Fletcher during the 2005 election litigation, said out-of-precinct balloting on Election Day had been a get-out-the-vote effort by some statewide or presidential campaigns. Even if a voter wasn't in the right precinct, campaigns for top-tier races knew the votes would ultimately count.
Sen. Dan Clodfelter, D-Mecklenburg, who led the Democrats' effort to untangle the superintendent's race in 2005, argues allowing out-of-precinct ballots to count is more important than ever. Changing boundary lines and split precincts in the latest round of redistricting — also being challenged in court — increases potential confusion, he said.
"The risk of voters showing up in the wrong precinct is greater than as it was then," Clodfelter said.