Ohio Legal Showdown?


If you’re confused by the reports coming out of key battleground state Ohio about last-minute changes to voting rules there, you’re not alone. The state’s current voting regulations have more moving parts than a live Lady Gaga show. On Election Day, speculation abounds about legal battles that could lie ahead come Wednesday morning.

I called up Ned Foley, professor at The Ohio State University’s Moritz College of Law and director of Election Law @ Moritz, a bipartisan center on electoral procedure, to guide me through the wilderness.

Foley, it should be noted, thinks that the possibility we won’t know the winner of the presidential race by late Tuesday night or early Wednesday morning is “quite unlikely,” despite the fact that the chattering classes have been talking about Ohio as this year’s potential Florida. 

That being said, semper paratus (always ready).

“It’s not like there are seven different things that might happen on November 7,” Foley said. “It’s like we’re at a fork in the road, and we could go down this path or that path. And if we go down the second path, then a few days later we meet another fork in the road.”


What’s the difference in Ohio between a recount and counting provisional ballots?

In the worst-case scenario for Ohio (and the country), the national results of the presidential race end up turning on results in the state, and it further happens that the votes Ohioans have cast via early voting, absentee ballots, and successful in-person voting on Election Day are, by the end of the night, still too close to call. Attention would then turn to provisional ballots that have not yet been counted. This would not be the same thing as a recount of the results. 

Provisional ballots are votes cast when there is doubt as to whether the voter is eligible to vote. As a general rule, poll workers are trained to make sure that everyone who comes into a polling place can cast a ballot. But if a voter does not have the proper ID or is at the wrong precinct, for example, his or her vote is automatically put in the provisional ballot pile. (Voters can return to the polling place and provide backup information that will allow their votes to move out of the provisional-ballot file—for example, supplying a valid voter ID.) 

By Ohio law, provisional ballots cannot be counted until ten days after the election. Whatever the results, officials won’t turn to examining provisional ballots until November 17. 

By contrast, an automatic recount can only be triggered in Ohio if the vote margin is a quarter of a percent between the two candidates. It’s important to note that an official recount can’t begin, says Foley, until after all the provisional ballots have been looked over. 


Why are provisional ballots being talked about in Ohio so much this election?

Quite simply, because there’s a chance that many more provisional ballots than usual will be cast.

Ohio Secretary of State John Husted has courted controversy in this election, most notoriously for his efforts to limit early voting hours throughout the state. (His bid to curtail early weekend voting hours was eventually overturned by the Sixth Circuit Court of Appeals.) Another of Husted’s moves has received less attention. Earlier this year, Husted ordered that applications for absentee ballots be mailed to most of Ohio’s registered voters—about 6.9 out of 7.8 million. Because of the mass mailing, many more people than usual ended up applying for absentee ballots. But here’s the rub: If for whatever reason a voter fails to return the absentee ballot by mail and instead shows up at a polling place hoping to vote on Election Day, he or she will only be allowed to cast a vote by provisional ballot. 

On a positive note, per Husted’s instructions this is the first year Ohio’s voters will have been able to update their addresses online. This could conceivably lower the number of provisional ballots cast due to an address discrepancy.

“There are a variety of factors that could effect the volume of provisional ballots,” Foley said. “The absentee ballot application process is one that could increase [the volume]. The fact that the secretary of state set up an online change of address form for voters arguably could decrease the number of provisional ballots. We just don’t know how those factors are actually going to shake out.”


What’s the most recent controversy over provisional ballots all about?

Adding to the questions already swirling around provisional ballots, late last week Husted put out a new directive that critics fear could render more of these ballots invalid. The directive transferred the burden of filling out ID information on provisional ballots from poll workers, who had traditionally been responsible for that task, to voters. If a voter does not enter the ID information correctly, his or her ballot will not be counted. 

This move has prompted the filing of an emergency motion in federal court by the Northeast Ohio Coalition for the Homeless, asking for the directive to be stayed.


Besides the questions about provisional ballots, what are some of the legal tactics voter-fraud protection groups like True the Vote might engage in to complicate Ohio’s Election Day and its aftermath?

In the event of a very close election, Foley says, one possible litigation pathway for groups so inclined would be to allege voter fraud using something called “reconciliation” as proof. Every polling place has a poll book in which voters must sign their names. Much as when you balance a checkbook, the number of names of people who sign the book and the number of ballots cast are supposed to match up. But because of simple human error, Foley says, “in every election there’s some discrepancy, one or two [names] off.” 

If they’re organized and smart, Foley said, voter-fraud prevention groups like True the Vote could try to claim in certain precincts—most likely those that lean Democratic—that the names in the poll book do not match the number of votes cast, and they could ask to invalidate ballots.

“If the groups that are concerned about voter fraud want to try to make a stink or raise questions and the polls have closed,” he said, “the first thing that they may want to try to look at is, is there a gap between ballots cast and voters who cast them?”

In 2006 in Cuyahoga County, home to Cleveland and a large portion of the state’s Democratic vote, the polling books were off by 12,000 names—a fiasco, Foley said. That’s not something he foresees happening this year, though GOP operatives have experience litigating around the issue of poll-book reconciliation, which came up during the long recount phase of Democrat Al Franken’s closely contested 2008 Senate race against Republican Norm Coleman. 


What else are both campaigns’ legal teams preparing for in terms of a possible post-November 6 showdown in Ohio?

Pretty much anything and everything just in case, according to Foley, though if it comes to that, both the Romney and Obama teams would probably want to take to heart some lessons from Al Gore’s 2000 legal challenges in Florida. Gore’s team focused its effort primarily in four counties. This did not end up serving its purposes well, Foley said. Should a litigation situation arise in 2012, Foley thinks that both campaigns would be more strategic, choosing broad legal remedies rather than precinct- or county-targeted ones.

“It may be that the candidates are forced for a variety of reasons to claim that they want a statewide remedy even if they would love it just to be selective,” he said. 

In the meantime, both campaigns have been training poll watchers throughout the state—people who will be on hand at polling stations to help confused voters and to monitor how poll workers handle conflicts that might arise. 

According to one Obama campaign-trained poll watcher I talked to who attended trainings in Cuyahoga County, observers were directed “not to dress like Republicans”—no suits—and to appear as approachable as possible. 

Foley added that voting-day interactions at polling places have the potential to get contentious tomorrow, a nod to rumors that True the Vote sympathizers could have been placed as poll workers in some Ohio polling places by Republican Party representatives. (I heard similar rumblings at a voter-protection training in Cleveland run by the non-partisan Lawyer’s Committee for Civil Rights Under Law.) 

“There’s been some speculation that poll workers themselves in some places may be more aggressive in challenging than they may have otherwise been,” Foley said. 

Only time—under 24 hours, now—will tell.

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