Ohio Provisional Ballots Could Leave Presidency In Doubt For Weeks

Will Ohio's Provisional Ballot's be 2012's version of the Hanging Chad?

As I noted last week, there’s a quirk in Ohio’s election law that could result in the outcome of the vote in that state, and potentially a decision as to who the next President might actually be, unresolved for weeks. Essentially, the whole problem boils down to the decision by Secretary of State Jon Husted to send an application for an Absentee Ballot to every voter in the state, something that had not been previously done in Ohio. Husted’s office reported last month that some 1.4 million applications were returned, and each of the people who returned the application were sent a proper Absentee Ballot. In and of itself, there’s nothing wrong or wrongheaded about this. Indeed, one could argue that it makes voting easier for everyone. The problem is that, under Ohio law, when someone is mailed an Absentee Ballot there is a notation made next to their name in the voting rolls and, if they show up on Election Day, they will not be permitted to vote by the regular procedure and will instead by required to cast a provision ballot. The logic behind this is sound in that it’s the only method to ensure that someone who has voted by absentee doesn’t improperly, and indeed illegally.

The fly in the ointment here is that, under Ohio law, election officials cannot even begin counting Provisional Ballots until November 17th. How long this process goes on depends on a number of factors, not the least of them being how many Provisional Ballots actually end up being cast. In 2004, there were approximately 155,000 Provisional Ballots cast. In 2008, there were approximately 207,000 such ballots cast, some 40,000 of which were rejected under rules that continue to remain under dispute. Many elections officials and observers believe that the number will be much higher this year and, given the fact that as of a week ago some 350,000 Absentee Ballots remained outstanding, their fears appear to be well founded. In 2004, the election result between Bush and Kerry was close, but not close enough that the Provisional Ballots would’ve made a difference in the outcome. That may not be the case this year given how close the polls are, and both campaigns are getting for what may end up being a legal battle as epic as the one we saw in Florida in 2000:

Even before Tuesday’s voting began, the two sides were already skirmishing over how the balloting was being administered.

In Ohio, a new dispute has broken out over the validity of provisional ballots. Usually, such special ballots — cast by voters but set aside for examination later — are required when something about the voter’s eligibility is in doubt. For example, the voter might lack proper identification or be in the wrong precinct, or the person might have requested an absentee ballot but then showed up to vote in person at a polling place.

When examined in more detail later, provisional ballots are either discarded or, if the voter’s eligibility is established, counted.

The fight over those ballots has now increased the possibility that — if Tuesday’s election comes down to the Buckeye State, it won’t end on Tuesday night at all.

Instead, it might be weeks before Ohio has a final result. Voting rights advocates contend that a new directive issued Friday evening by Ohio Secretary of State Jon Husted improperly places the burden on voters — rather than poll workers — for accurately recording the form of identification on provisional ballots.

Husted ordered the state’s 88 county elections boards to reject provisional ballots when the identification portion is incomplete. This appears to be in conflict with a consent decree reached last month between the state and voting rights groups that said provisional ballots with incomplete identification information should be counted.

A group of unions and voting rights groups went to federal court Thursday asking that the state be made to reaffirm that commitment. A day later, Husted released his directive. The state is expected to respond before the end of Monday, but a decision may not come until after the election. Election boards have 10 days after the election to evaluate the eligibility of provisional ballots and decide whether to count them.

In its final projection before Tuesday’s vote, the Ohio Poll sponsored by the University of Cincinnati found the presidential race in Ohio too close to call, with Obama receiving support from 50 percent of probable voters and Romney getting 48.5 percent — within the poll’s margin of error of plus or minus 3.3 percent.

That represented no significant change from last week’s Ohio Poll, which gave Obama a two-point edge over Romney. A recent Columbus Dispatch survey also had Obama up two points.

However, the latest NBC News/Wall Street Journal/Marist poll released Monday gives the president a six-point lead in Ohio, 51 percent to 45 percent.

On Tuesday night, parsing the early returns from Ohio could be confusing. In the first minutes after polls close, the state is likely to tally up the returns from early voting. These are expected to break heavily for Obama. After that, Romney should creep closer, since he is expected to do better among those who vote on Election Day.

By the time all those votes are counted, the winner still may not be clear. If the number of provisional ballots cast is greater than the number of votes that separate the two candidates, then there could be a long and heated battle over which provisional ballots to count.

And, even after that process is over, there could be a long recount if the vote ends up being close enough:

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, Mr. 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.

So, a close vote in Ohio could draft things out for a considerable amount of time.

A Federal Judge has already set a hearing on the dispute over the standards that will be used to count the Provisional Ballots for Wednesday morning (since the ballots won’t be counted for ten days, there’s no need for an earlier hearing), but that may just be the beginning of the fight. How big a fight it actually is,of course, depends on how the voting goes in the rest of the country. If one of the candidates, and most likely it would be President Obama, reaches 270 Electoral Votes without including Ohio, then the dispute over Ohio’s Provisional Ballots becomes something of an academic concern unless those ballots would somehow play a role in deciding one the Brown-Mandel Senate race or one of the Congressional races. However, if we end up at the end of the night with a map that would require either one of these men to win Ohio’s 18 Electoral Votes to win the election, then we will likely find ourselves in a protracted legal dispute that could leave the fate of the Presidency in doubt for weeks. So, let’s hope either that whoever wins Ohio wins it by a wide margin, or that Ohio doesn’t matter in one of the candidates getting to 270, because I’m really not up for a repeat of the Florida debacle.

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FILED UNDER: Campaign 2012, US Politics,
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Mikey says:

    Just think, Doug, if we got rid of the Electoral College this probably wouldn’t be an issue at all…just sayin’.

  2. Still not a convincing enough reason for me to agree with you.

  3. Mikey says:

    @Doug Mataconis: LOL…I didn’t figure. But it’s still true that a national popular vote would pretty much eliminate the possibility of a couple hundred thousand votes holding up the result for weeks.

  4. Tony W says:

    I predict that Ohio won’t matter ultimately, Obama will have this done when he wins Virginia.

  5. Fiona says:

    This guy Husted is the latest in a series of Republican Ohio Secretaries of State who seem intent on making voting in Ohio as opaque and confusing as possible. Between Ohio and Florida, it’s hard to say which state’s process is more corrupted.

  6. C. Clavin says:

    If I believed in God I would pray to her asking that it does not come down to Ohio.
    Obviously there is a lot of the typical Republican Bull-Shit going on there.
    If you can’t compete…cheat.
    Best if it’s just a moot point.

    Both 538 and PEC are predicting NH and VA go to Obama. If that happens the cake is pretty much baked.
    They are also both predicting FL goes to Obama…that would be the icing…with sprinkles.

    Of course I do not think their modeling takes into consideration the idiocy of the American electorate…an electorate that chose George W. Bush twice. So who knows?

  7. Rob in CT says:

    Oh please no.

  8. Anderson says:

    If Obama takes it by 290 or 303 as widely expected, Ohio’s final vote will be only a curiosity.

    I live in Mississippi, where my presidential vote doesn’t matter, but I’m turning out to vote anyway. You folks in even remotely swing states — Wisconsin and PA, I’m looking at you! — don’t stay home. Unless you were voting Romney of course.

  9. gVOR08 says:

    Appreciate you putting this story out there, Doug. This is all true. As I noted in a comment Sunday:

    “I cast my vote in OH a couple weeks ago, facilitated by John Husted’s active promotion of absentee voting. He mailed applications to everyone. As is now common, there is no expectation one actually be absent on Election Day.
    If someone applies for and is mailed an absentee ballot, but decides to vote in person, they will have to cast a provisional ballot. The law requires they allow ten days after Tuesday for absentee ballots to arrive. Then they can check provisional ballots against absentee ballots for double voting within OH. All quite sensible up to the point Husted starts throwing out provisional ballots for any reason he can find. Also, if it’s close, it gives him at least ten days for any other ratfracking he can manage.
    Double voting by people with two residences apparently does occur at a significant rate. This is something that could be readily prevented; it is the 21st century after all. Republicans are rabid about preventing nonexistent ID fraud yet encourage absentee voting which is prone to fraud. Now, why could that be? I’m sure it’s just a coincidence that people without driver’s licenses tend to vote D while absentee votes tend to run R.
    Does it ever give Republicans pause that they can only win by cheating? Nah”.

    Nate Silver took Ohio off his contested state list yesterday. He projects a 3.7% margin for Obama, probably outside Husted’s ability to ratfrack. But Silver shows a +/- 2.7% margin of error. Silver also projects 315 electoral votes, easy win w/out Ohio’s 18. I’m hoping for a clean Obama win, called early this evening. But if that happens, there will be no attention paid to Husted’s actions and he’ll get away with his attempt to throw the national election. Sad. He should go to jail.

  10. Scott says:

    What is going on with the votes in Ohio is just disgraceful and corrupt. If I was a voter I would start loudly insisting that someone show me my vote was recorded because I couldn’t trust the system anymore. If this sick effort by the Ohio Republicans to manipulate and suppress sthe vote is allowed to go forward, then perhaps 2nd amendment remedies would be in order.

  11. Tsar Nicholas says:

    Ohio Provisional Ballots Could Leave Presidency In Doubt For Weeks

    Meh. NBD. We got through Florida ’00, ergo we can get through pretty much anything.

  12. C. Clavin says:

    Yeah…we got through “Florida”…with a decision that was at once the most corrupt decision in the history of the SCOTUS…and an incredibly weak decision in that it led to zero reforms in the electoral system that might prevent another “Florida”…which is proven by the fact that we see the same kind of Republican bullshit in Florida and Ohio today.
    In additon “Florida” led directly to 9.11, Iraq, and the worst financial crisis since the Great Depression.
    But yeah…we got through “Florida”.

  13. Chris Berez says:

    However, if we end up at the end of the night with a map that would require either one of these men to win Ohio’s 18 Electoral Votes to win the election, then we will likely find ourselves in a protracted legal dispute that could leave the fate of the Presidency in doubt for weeks.

    In which case, I may be forced to get a shotgun and shoot myself in the face. I can’t take another situation like we had in 2000.

    Although, you’d have to think that Florida is rooting for this to happen on some level. Ohio would supplant them as the most hated state in the union.

  14. john personna says:

    Amazing that Sliver has dropped Romney’s chances to 8.4%. I guess he’s boldly letting the algorithm run. No hedge there.

  15. Barbara Carson says:

    Why do we put up with this crap? We need to look at the easiest way and hardest to corrupt solution and all states should use that system. I love how we vote in Wash state, although I was disappointed we got our ballots just 2 weeks before election. I would have given a month, and the voting pamphlet should have come 2 months in advance to give hard working people a chance to read it through. I am shocked that in this day and age we have people waiting in long lines to vote, some waiting 7 hours. This is not right. I know I would not have that kind of time just to wait. I applaud each of these folks for doing this for the ones like me whose vote really does not bring change..

  16. Gromitt Gunn says:

    As much as I don’t want a repeat of 2000, sunshine is the best disinfectant. And having a metric crapton of reporters and election observers and US Attorney’s Office investigators airing out the systemic voter suppression tactics of the banana republic junta known as the Ohio GOP for the entire nation and the world to see for close to a month would be a thing of beauty.

  17. Geek, Esq. says:

    I don’t think it will be that close in OH. They can’t steal it if it’s not terribly close.

  18. Mr. Replica says:

    On topic: I am not too concered with Ohio being a factor. Romney could win Ohio and Florida (The two states with the most “problems” regarding voting) and still lose. When late tonight rolls around and things are really close and Ohio is really in question, I will start to fret.

    Off topic: This is trending right now on Reddit. This is from PA, my home state. I do not vote on digital machines, but I am sure a lot of people do.

    http://www.youtube.com/watch?v=QdpGd74DrBM&feature=youtu.be

    I’m the guy who shot the video, hopefully this doesn’t get burried. You guys have questions, I have answers.

    My wife and I went to the voting booths this morning before work. There were 4 older ladies running the show and 3 voting booths that are similar to a science fair project in how they fold up. They had an oval VOTE logo on top center and a cartridge slot on the left that the volunteers used to start your ballot.

    I initially selected Obama but Romney was highlighted. I assumed it was being picky so I deselected Romney and tried Obama again, this time more carefully, and still got Romney. Being a software developer, I immediately went into troubleshoot mode. I first thought the calibration was off and tried selecting Jill Stein to actually highlight Obama. Nope. Jill Stein was selected just fine. Next I deselected her and started at the top of Romney’s name and started tapping very closely together to find the ‘active areas’. From the top of Romney’s button down to the bottom of the black checkbox beside Obama’s name was all active for Romney. From the bottom of that same checkbox to the bottom of the Obama button (basically a small white sliver) is what let me choose Obama. Stein’s button was fine. All other buttons worked fine.

    I asked the voters on either side of me if they had any problems and they reported they did not. I then called over a volunteer to have a look at it. She him hawed for a bit then calmly said “It’s nothing to worry about, everything will be OK.” and went back to what she was doing. I then recorded this video.

    EDIT: There is a lot of speculation that the footage is edited. I’m not a video guy, but if it’s possible to prove whether a video has been altered or not, I will GLADLY provide the raw footage to anyone who is willing to do so. The jumping frames are a result of the shitty camera app on my Android phone, nothing more.

    EDIT2: I have been contacted by NBC Universal and BBC News.

    Now, people are saying that this machine just needs to be calibrated, so that the touch function works as it should. And while it may fix the problem that this person is reporting, that does not exactly make me feel better. Seeing how we live in the age we do, where smart phones and other touch screen devices are every where, this sort of thing is bullsh!t. With something as important as voting, this sort of crap should NOT be happening, period. While this machine has a problem with selecting Obama, I bet there are other machines out there that have problems when selecting Romney, Johnson, Stein, or whomever.
    No person would ever buy or allow themselves to keep a machine/phone that did this sort of thing. Where the touch screen was screwed up. Yet, here we are voting on malfunctioning machines that were bought and paid for with our tax dollars.
    Yes, everyone should and needs to check who they vote for when voting on these machines. But, the machines have been nothing but a problem ever since they were rolled out. Get rid of them now.

  19. C. Clavin says:

    @ JP…
    My understanding is that 9% represents the chance that all the state polling mis-overestimated Democratic turnout. Or I suppose….mis-underestimated the effects of voter suppression.
    PEC has it tighter…Silver’s algorithm appears to be conservative (in design, not bias).

  20. mike says:

    I heard somewhere that some person did something that was illegal with regard to voting. This will be a siren on drudge.

  21. Gustopher says:

    Why give preference to the absentee vote over the in person vote?

    Obviously, you cannot count both, but if the person shows up to vote, you mark them off in the ledger, they vote a normal vote, and then if their absentee ballot shows up, you crack the ledger and toss the absentee ballot?

    It would solve almost none of the timing issues, but it would solve one of the claimed problems with vote-by-mail and early voting — last minute events can change a voters decision after they voted.

  22. DRE says:

    @Mikey:

    Just think, Doug, if we got rid of the Electoral College this probably wouldn’t be an issue at all…just sayin’.

    I hate to say it but this is probably backward. If Obama wins New Hampshire and Virginia, the electoral college will spare us from having to worry about the details in Ohio and Florida and god only knows how many other states in trying to get the popular vote decided. Who knows what horrors lurk in the procedures of states whose electoral votes are not in doubt.

  23. C. Clavin says:

    @ DRE…
    I’d like to see NH, VA, and CO…just for some cushion. But yeah…Ohio and Florida are best left irrelevant.

  24. DRE says:

    @Gustopher:
    Alternatively, you could count absentee ballots recieved up until a day or 2 before election day, then print rosters that include all registered voters who haven’t had absentee ballot counted. At the end of election day start counting absentees again, but only count those where no vote was cast at the polling place. This would allow for timely counting and minimize provisional ballots while preventing double voting. I believe that this is the process used in California.