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The Race Might Not Be Over On November 6th

National Journal’s Alex Roraty sums up the ways in which the election fight might not be over on November 6th after all:

 RECOUNTS

Florida‘s infamous 2000 presidential recount is the first thing that comes to mind when talk turns to a possible recount. And election experts in the Sunshine State want people to know things have changed in the last 12 years.

The state’s recount rules are now far more clear and explicit, and less vulnerable to charges of political maneuvering. Instead of recounting individual counties, recounts are now conducted statewide in cases of a winner beating an opponent by half of a percentage point or less. The trigger is automatic.

All voting booths also now use paper ballots, eliminating the possibility of the infamous “hanging chad” that plagued the contest between George W. Bush and Al Gore.

A recount, of course, is only an issue if we have a virtual repeat of the 2000 election where the vote in a single state is so close that a recount is necessary and that state is essential for determining who the winner of the Electoral College will be. Without both conditions, then the fact that there might end up being a recount in a particular state, or that the end result in that state is incredibly close, is largely irrlevant. This year, there are any number of states where the polls are incredibly close and it’s at least possible that any one of them could end up in a recount situation. However, the days of the bizarre recount procedures that Florida had in 2000 seem to be over. Here in Virginia, for example, the rules governing recounts are strict and the procedure would be over seen by a panel of Circuit Court Judges. There’s little chance of a repeat of the Palm Beach County disaster in the Old Dominion. So, possible? I suppose, but I don’t think it’s very likely. There is, however, another state-level voting quirk that could delay the final results in the election:

PROVISIONAL BALLOTS

Though Republicans pushed to tighten voting requirements in an array of states the last two years, few of their proposals passed or survived legal challenges. That’s left the voting landscape largely unchanged from four years ago.

“The strict voter I.D. laws that we were most concerned about aren’t going to be in effect in any swing state,” said Lawrence Norden, deputy director of the Democracy Program at the liberal-leaning Brennan Center for Justice.

A court ruled that Pennsylvania’s strict new voter-ID law can’t take effect until after the election, for instance. Restrictions on groups that register voters in Florida were reversed, and Colorado’s secretary of state largely backed off a plan to force suspected noncitizens to provide proof of eligibility.

But several battlegrounds are notable exceptions. Virginia now requires voters to provide some kind of proof of identification, whether a driver’s license or utility bill. That’s a broader range of acceptable forms than most proposed voter-ID laws, but voters could still show up at the polls without any identification on hand. In that case, they’ll have to cast a provisional ballot and prove their identity later — a headache if officials are trying to determine the winner of a close race in their state.

The state where there could be a big Provisional Ballot problem, though, is Ohio where Secretary of State Jon Husted sent an application for an Absentee ballot to every registered voter in the state. According to his office, some 1.4 million voters returned the application and  were mailed an Absentee Ballot. That number may increase since voters have until November 3rd to request an Absentee Ballot. So far,  about 620,000 of those Absentee ballots have been returned and, under Ohio law, they must be postmarked no later than November 5th and received no later than ten days after Election Day in order to be counted. Here’s where things get complicated though. Under the law, if someone who has requested an Absentee Ballot shows up at their polling place on Election Day, they are required to cast a Provisional Ballot. The reasons for this are rather obvious,, of course. Once it’s been noted in a person’s voting record that they have requested an Absentee Ballot, there’s no way for the people at the poling place to know if they had already cast that ballot, or if it had been placed in the U.S. Mail prior to Election Day. The Provisional Ballot is intended to make sure that someone isn’t improperly voting twice, and it makes sense. Under the law, though, those Provisional Ballots cannot be counted before November 17th. So, if Ohio ends up being so close that the margin between the candidates is less than the number of Provisional Ballots cast (not to mention the unknown number of Absentee Ballots postmarked by November 5th and received by November 16th), then we may not actually know who won Ohio for at least ten days after the Election. Since many analysts see Ohio as the key to an Electoral College victory, that means it’s possible that we wouldn’t know who the next President is until some time just before Thanksgiving.

And that brings us to every political pundits favorite scenario:

ELECTORAL-COLLEGE TIE

A tie in the Electoral College is extremely unlikely — analyst Nate Silver of The New York Timesestimates the chance the race could end up tied 269-269 is less than 1 percent — but the razor-thin margins in polls of many swing states have made the scenario possible. In such a case, the next Congress, not voters, would pick the country’s president and vice president when it convenes in January.

Each chamber would be responsible for one-half of the ticket: The House would select the president, while the Senate would choose the vice president. But how the ballots will be cast in each chamber differs.

In the Senate, each senator receives one vote to select the vice president. But in the House, each state delegation receives one vote, so which party controls the majority of the chamber isn’t quite as predictive as you might think.

Of all the possible “never ending election” scenarios out there, this one strikes me as the least likely mostly because there are an extremely limited number of scenarios under which we realistically could end up with a tie in the Electoral College. It also assumes that we wouldn’t see a “faithless elector” in the Electoral College who would end up pushing the result to one candidate or another notwithstanding the tie. Roraty is correct, though, that a tie would likely mean that Mitt Romney would win the balloting in the House of Representatives rather easily. The Senate would be the more interesting question. If the Democrats maintain control of the Senate, which seems probable, then then they’d be able to easily put Joe Biden in the Vice-Presidency. The question is, would they want to? A Romney/Biden Administration would be an odd hybrid and, most likely Biden would be completely shut out of Administration policy making and be viewed with suspicion by Romney and his advisers. It would be the first time since 1796 that two political rivals served as President and Vice-President simultaneously, and that didn’t work out so well. Fortunately, it’s about as likely to happen as was that Brokered Convention that everyone was dreaming about six months ago.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. MM says:

    I think the most likely reason for the election not being over on the morning of the 7th is the natural progression from all the poll unskewing and vote fraud alleging.

    Obama wins a narrow EC win, Romney a narrow popular vote win. Various GOP bloggers and pundits declare the win to be illegitimate for various reasons. The GOP led house begins threatening subpoenas and investigations into various swing states. Some former Romney advisors jokingly (but not really) form a government-in-exile in a VA office building.

    Jan 21, 2013 The house begins the impeachment process.

    I don’t think this will happen, but I think it’s more likely than the other scenarios.

    Like or Dislike: Thumb up 6 Thumb down 2

  2. Barfour says:

    I think I heard about “pregnant chads” in Florida in 2000.

    Like or Dislike: Thumb up 0 Thumb down 1

  3. Jim R says:

    “Each chamber would be responsible for one-half of the ticket: The House would select the president, while the Senate would choose the vice president.”

    In such a scenario, would the senators be bound to choose from one of the VP nominees, or could they choose whomever they want? Perhaps we’d see Romney as president and Obama (rather than Biden) put in as vice president?

    I agree this wouldn’t happen, but it’s fun to speculate about.

    Like or Dislike: Thumb up 3 Thumb down 1

  4. Jskwrite says:

    Chad pregnant again? Slut! If the churches were forced to pay for contraception for their employees my tax dollars wouldn’t be subsidizing the welfare Chad is going to be on forever….

    In all seriousness, another reason the election may not end in Nov 6 is the appointment of John Kerry to replace Clinton as Secretary of State. Another run off election would occur and more Scott Brown – not to mention if there’s a close senate race that needs a re-count to determine that 49th-50th-51st senate seat. If lawn signs and wrestlers were the tie breakers, I think McMahon could get the seat in CT that way. OH YEAH!

    Like or Dislike: Thumb up 2 Thumb down 1

  5. Modulo Myself says:

    I doubt that this will be the case. If the polls stay as they are in Ohio, Obama may have it wrapped up by 11 p.m.

    Like or Dislike: Thumb up 10 Thumb down 0

  6. @Jim R:

    No, both Houses are required to choose from the top two vote getters in the Electoral College

    Like or Dislike: Thumb up 1 Thumb down 0

  7. C. Clavin says:

    I’m sure Scalia ha already written his opinion that will be “limited to the present circumstance”.

    Like or Dislike: Thumb up 10 Thumb down 3

  8. gVOR08 says:

    @C. Clavin: Scalia’s one thing. Much as I disrespect John Roberts, I don’t think he has either the bad judgement or the stones to let the court ratfrack another election in favor of a Republican.

    Like or Dislike: Thumb up 1 Thumb down 2

  9. John Burgess says:

    Doug: How about delayed counts — or even postponed balloting in some precincts — due to Hurricane Sandy? Delaying the NYC counting for a few days could prove interesting. For all possible meanings of “interesting”.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. Just Me says:

    I am not certain this is going to play out, but I suspect if it does Ohio is going to be the center of attention this time rather than Florida.

    I already suspect that there isn’t going to be too much chance of this election being called before Wednesday morning, and if it takes longer all eyes will be on Ohio.

    I don’t think there will be an electoral tie, although I do think there is a chance we may see another popular/electoral vote split.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. al-Ameda says:

    I have two worries concerning the election results:

    (1) I’m somewhat worried that conservatives will be rioting throughout the suburbs of the Sunbelt and the Plains states.

    (2) I have plans to travel back East at that time, and I’m worried that, if these right wingers don’t riot, that airports will be jammed up with panicked conservatives trying to leave the country.

    Like or Dislike: Thumb up 6 Thumb down 3

  12. MM says:

    (1) I’m somewhat worried that conservatives will be rioting throughout the suburbs of the Sunbelt and the Plains states.

    Hundreds of Pottery Barns and Chili’s destroyed!

    Like or Dislike: Thumb up 6 Thumb down 1

  13. al-Ameda says:

    @MM:

    Hundreds of Pottery Barns and Chili’s destroyed!

    I’m guessing they’ll leave Chick-Fil-A and Applebee’s alone

    Like or Dislike: Thumb up 7 Thumb down 1

  14. JKB says:

    Well, if we are going to do wild speculations. Suppose a close/recount state has a large military population that were denied the right to vote by the, I’m sure for strictly non-nefarious reasons, delays in getting their absentee ballots out in accordance with the law. I also read a headline where the DoD is now says a bunch of ballots were lost in a plane crash. So now, these soldiers come to view the recount and Presidential election as illegitimate regardless of the results.

    As an interesting aside, my state Tennessee imposed a voter ID requirement this year, but I’ve heard nary a Democrat complain. Last week I read out of the hundreds of thousands of early votes, 31 people had to do provisional ballots pending ID. A 0.00008% problem. And 16 of those had already brought in proper id so really on 0.00004% had id problems. Hardly an election changer. I suppose the voter ID requirement is only an issue where Democrat fraud has a chance of changing the results.

    Like or Dislike: Thumb up 3 Thumb down 7

  15. G.A. says:

    I doubt that this will be the case. If the polls stay as they are in Ohio, Obama may have it wrapped up by 11 p.m

    And then we Impeach him…..

    Like or Dislike: Thumb up 1 Thumb down 5

  16. al-Ameda says:

    @G.A.:

    And then we Impeach him…..

    Thta’s exactly what you guys will do, after all, you guys impeached Clinton for nothing.

    Like or Dislike: Thumb up 6 Thumb down 1

  17. G.A. says:

    That’s exactly what you guys will do, after all, you guys impeached Clinton for nothing.

    Nothing? Of course, lying and lying under oath is nothing to the left, nor is being a pervert nor a cheater….Sorry I forgot.

    Like or Dislike: Thumb up 0 Thumb down 5

  18. OzarkHillbilly says:

    @G.A.:

    Nothing? Of course, lying and lying under oath is nothing to the left, nor is being a pervert nor a cheater….

    Why do I get the feeling you thought torture under the previous President was perfectly justifiable and legal?

    Like or Dislike: Thumb up 2 Thumb down 0

  19. G.A. says:

    Tom, you know that I think calling waterboarding torture is stupid.Not more then a tactic for the left to undermine the war effort and our troops with.
    That is also a very weak defence of Clinton and Obama…blaming Bush lol…

    Like or Dislike: Thumb up 0 Thumb down 1

  20. matt says:

    @G.A.: Oh so it’s only torture if it’s our enemies doing it (see ww2 for example)…

    Like or Dislike: Thumb up 0 Thumb down 0