Close call in Ohio may bring long result delay

New York TimesNovember 5, 2012 

— Election Day in Ohio is Tuesday, as in every other state in the union. But if the margin in the presidential contest is narrow here, as many polls predict, the winner may not be known until well into December.

Ohio, like several of the other battleground states that are expected to determine the outcome of the election, has a labyrinthine recount procedure that ensures weeks of delay and the likelihood of a mountain of lawsuits.

Election officials and election law experts are praying for a result here that Daniel Tokaji, a law professor at Ohio State University, described as “outside the margin of litigation.”

What sets Ohio apart is the large number of provisional ballots – those that election officials could not verify on Election Day for any number of reasons: because the voter had a new address, did not provide proper identification, did not appear in the state’s computerized voter registry or had requested an absentee ballot and turned up at the polls on Election Day. Under federal law, voters whose eligibility cannot be verified at the polling place must be allowed to cast at least a provisional ballot; such ballots must be counted if election officials later confirm that the voter is legitimate.

“We’re expecting 200,000 or more provisional ballots – that’s more than New York or California – and that means that an election is contestable here with a margin in the low tens of thousands of votes,” Tokaji said.

Ohio rules overly strict?

Voting rights groups and the Service Employees International Union have complained that Ohio’s Republican secretary of state, Jon Husted, has set voter identification rules for provisional ballots that are overly strict and violate the law. Husted said that his directive is consistent with the law and past practice in Ohio. On Monday, a federal judge set a hearing for Wednesday on the dispute so that it can be resolved before counting of provisional ballots begins.

Ohio does not begin to tally provisional ballots and ballots from overseas and military voters until Nov. 17. During this 10-day period, voters can provide documentation to establish their eligibility, but election officials cannot open or count absentee or provisional ballots. In 2008, 80 percent of those votes ended up being accepted as legitimate, and they tended to slightly favor the Democratic candidate, Tokaji said.

Ohio counties then have an additional 10 days to conduct an official canvass of the vote. If at the end of that period the two candidates are within 0.25 percent of the overall vote total, an automatic recount is triggered. State officials expect about 5.7 million votes to be cast in the presidential election, meaning that if the margin is 14,250 votes or fewer, a statewide recount is required. Under state law, that cannot begin until Dec. 2 and must end by Dec. 11, six days before the state must qualify its representatives to the Electoral College. While much of the focus is on Ohio, the result could also come down to several other highly contested states, each with its own set of rules for counting or recounting votes.

Other states’ rules

Colorado, Florida and Pennsylvania automatically recount votes if the margin of victory is 0.5 percent or less. In Iowa, New Hampshire, North Carolina, Virginia and Wisconsin, candidates can request a recount at modest or no cost, according to a survey published last week by the Brennan Center for Justice at New York University School of Law.

Although litigation could delay any recount, as it did in Florida in 2000, most require the process to be completed more quickly than it is done in Ohio. Florida, for example, must finish a recount within 12 days of the general election.

A recount would put into play tens of thousands of provisional ballots in Florida, which, like Ohio, does not begin counting such ballots until after Election Day.

Rejected absentee ballots – which typically result from signatures that do not match – also have been an issue in Florida. Counting absentee ballots in Florida can take time because ballots from overseas or from members of the military are counted for several days after Election Day, though they must be postmarked by Nov. 6.

In most states, the initial recount would be conducted primarily or entirely by machine. Only New Hampshire requires a hand recount of all ballots. Colorado, Pennsylvania and Virginia use machines in some precincts that do not produce a paper record of the vote, raising the possibility of a software glitch that could distort or destroy ballots.

Another potential complication is how to handle undervotes and overvotes, those ballots where a voter either marked more than one candidate for office or none. This was the source of much dispute in Florida in 2000 because of its punch-card voting systems. Florida has done away with those and many newer electronic voting systems have been designed to warn a voter before he leaves the voting booth that the ballot was not properly completed.

Michael Waldman, president of the Brennan Center, said that states are facing an array of problems on Election Day arising from efforts to tighten voter identification laws and limit early voting. And the problems may not end then, he said, because of what he called the muddled legal landscape on recounts in the battleground states.

“We may see the war over voting move from the polling place to the courtroom,” he said.

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