November 6, 2012
It’s easy to imagine what the late Tim Russert’s whiteboard might say tonight: Ohio, Ohio, Ohio.
The Buckeye State has supplanted its Southern cousin Florida as the marquee battleground of the 2012 presidential election—the state most likely to tip the race to either President Obama or Mitt Romney. Both candidates and their allies practically took up residence there in the past month, while their ads inundated the airwaves.
But Ohio also bears another, more ominous similarity to the 2000 Florida: If a close race demands a recount, conditions are ripe for a repeat of the delays, confusion, and chaos that racked the Sunshine State. And just like 12 years ago, the state’s ultimate winner could very well determine who is the next president. Part of the reason is that swing states such as Ohio haven’t adopted some of the reforms that Florida enacted after its infamous recount.
The potential problems that could arise in a close race in Ohio are myriad. But the most obvious flash point involves provisional ballots, those cast if a voter’s eligibility is in question. Election officials don’t count provisional or absentee ballots until 10 days after Election Day. In case of a narrow margin and with hundreds of thousands of such votes still to be counted, neither candidate could claim victory. (Ohio recorded 200,000 provisional ballots in 2008, a number expected to rise this time.) “Everyone is going to be saying, ‘It’s just likeFlorida,’ ” says Trevor Potter, who was general counsel for John McCain’s 2008 presidential campaign.
Both campaigns are also girding for a fight over which provisional ballots will ultimately be deemed valid. And, here again, there is uncertainty. The U.S. Court of Appeals for the 6th Circuit this week ruled in favor ofOhio’s secretary of state, a Republican, who had ordered that provisional ballots cast at the wrong location would not be counted. A lower court had overturned the secretary’s decision earlier this month. Challengers could appeal the Appellate Court ruling to the Supreme Court on an expedited basis, which would draw yet another comparison to 12 years ago.
The argument over which provisional ballots should be counted, Potter says, is where the process could degenerate into partisan warfare on a county-by-county basis. (Sound familiar?) If the campaigns learn the names and partisan leanings of the voters who cast each ballot, they’ll fight to keep some from being counted, Potter says. “Both parties have had teams of lawyers in Ohio for some time,” he says. “In a close race, you would see at least a 10-day period of disputes and uncertainty before the local boards.” Neither campaign will be caught flat-footed. Obama’s top attorney, Robert Bauer, and Romney’s, Ben Ginsberg, were each deeply involved in the Florida recount.
The biggest dispute will likely center on Ohioans who applied for an absentee ballot but decided instead to vote on Election Day. These voters will be allowed to cast only provisional ballots, which will be counted only after officials determine they didn’t vote twice.
This isn’t the first time Ohio has been poised for a fight over provisional ballots. In 2004, lawyers for Democratic presidential candidate John Kerry were ready to challenge the provisional ballots cast for President Bush. But the president’s margin in the state—more than 100,000 votes—made a challenge moot. Experts say that an Obama or Romney edge would need to be closer to 25,000 votes for provisional ballots to become a factor.
Legal challenges in the years since 2004 have removed some of the uncertainty, according to Edward Foley, who directs Ohio State University’s election-law program. But the state has never faced a test like the one it might see this month. “I’m not saying Ohio’s system can’t withstand it. It’s a question mark,” he says. “The question is: Can they do it fast enough? Can they do it fair enough?”
And if the confusion over provisional ballots wasn’t enough, the possibility of an outright recount further clouds Ohio’s outcome. The state will conduct an automatic recount if the difference between Obama’s and Romney’s tallies is less than one-quarter of 1 percentage point. But officials won’t begin that process until the election results are certified, which might not happen until early December.
Each county has 21 days to certify its results before submitting them to the secretary of state, according to a spokesman from the office, who then has an additional several days to do his own certification. Foley points out, however, that state law allows the secretary of state to speed up the recount.
Ohio doesn’t seem to have heeded the lessons of 12 years ago. After its tumultuous recount, Floridastreamlined its procedures—mandating an automatic statewide recount if the total vote is split by less than one-half of 1 percentage point. Rules there require that a recount would be ordered by the fifth day after Nov. 6 and must be completed by the eighth day afterward. “We’ve got 12 years of successful elections under our belt inFlorida since we were in the spotlight,” says Stephen F. Rosenthal, general counsel for the Obama campaign in Florida.
Not everyone sees disaster looming. Mark Weaver, a veteran of the George W. Bush campaign’s legal team in 2004 who is now working for Romney in Ohio, said that a worst-case scenario falls somewhere betweenOhio’s aborted recount in 2004 and the 2000 comedy of errors in Florida. But there will be no fodder for another HBO movie, he says. “You really can’t have another Florida precisely the way Florida was—if for no other reason [than] you don’t have punch cards anymore,” Weaver says. “And they were the heart of the problem in Florida.”
Maybe. But if this election goes into overtime, it will likely again be a single state that takes the blame.
A version of this article appeared in the National Journal print as “The Heart of It All.”
November 6, 2012