By Nathan Cemenska
Web Editor, Election Law @ Moritz
Moritz College of Law
As history has shown, almost anything can go wrong in an election. DRE machines can be misprogrammed, memory cards can be lost, ballots can be designed in a confusing manner that leads to over- and undervotes, VVPAT printers can run out of ink, election officials can fail to cooperate with one another, polls can open late or not at all and, if we somehow miraculously avoid all these pitfalls, perhaps a flood will sweep in to disturb what would otherwise have been a smooth election. Any one of these problems could manifest in ’08 and cause a repeat of the 2000 Presidential debacle but, after reading a draft of a paper produced by a colleague, I have come to believe that the most likely basis for a Presidential legal fight in 2008 is the counting of provisional ballots right here in my home state of Ohio.
In order to avoid causing undue alarm, it is important to emphasize that I do not actually think that the election disaster I am about to describe is going to occur. Rather, there is only a small chance (say, about 1%) that the Presidential result will both depend on Ohio and also be close enough to justify litigation over provisional ballots. Nevertheless, I think that this scenario is more likely to occur than any other potential election disaster. Furthermore, the harm that might come to us if this scenario does occur is serious enough to justify giving the matter some attention.
Here is why a 2008 Presidential candidate might dispute the counting of Ohio’s provisional ballots. First, because Ohio is such a swing state, the margin of victory is likely to be small. This in itself increases the likelihood of a dispute, because candidates know that they would only have to gain a tiny percentage of the overall vote to change the result of the election. Second, compared to other states, voters in Ohio cast a huge number of provisional ballots. Provisional ballots, unlike ordinary ballots, come with supporting documentation that in a recount or election contest can be used to prove whether they were eligible to be counted. Thus, provisional ballots are an easy target for litigation attempting to overturn the result of an election.
This combination of a low expected margin of victory and a high number of cast provisional ballots is not present (or at least not as present) in any other state, especially not any state as influential as Ohio (see page 9 of 2004 Election Day Survey—Florida has only a measly .27% of the overall registered population casting provisional ballots, while Ohio has 1.98%). About 2.8 ballots out of every 100 in the 2004 Ohio Presidential race were cast provisionally, and in November of 2006 about 3.1 ballots out of every 100 (see page 22 of Moritz Joyce report). If we assume the same provisional voting rate of 3.1% will remain constant, and assume that turnout figures are exactly the same as they were in 2004, then that means 177,396 provisional ballots will be cast in the 2008 Ohio Presidential election (as opposed to 158,642 that were cast in 2004). This well exceeds the margin of victory of 118,601 that we saw in Ohio in 2004 and, if the stars fall into tragic alignment, in 2008 the number of provisional ballots cast could exceed the margin of victory many times over. You see where I am going.
If it comes to this point, there will be a number of complicating factors that inject further chaos: Ohio’s confusing, labyrinthine provisional ballot statute (see my attempt at explaining it in question #31), alleged failure of elections officials to operate fairly and uniformly (see LOWV v. Blackwell), a series of procedural failures occurring in the state’s most populous county (Cuyahoga), an untested chief elections officer managing her first big election and, for extras, the fact that Ohio courts by statute no longer have jurisdiction over Presidential election contests. O.R.C. § 3515.08(A). Furthermore, because election contests are the exclusive remedy for election wrongs, Ohio courts also would not have jurisdiction over any other type of action to try to change the result of the election. State ex rel. Mackey v. Blackwell, 106 Ohio St.3d 261, 264 (Ohio, 2005). And even if Ohio courts did have jurisdiction, one wonders whether Ohio’s all-Republican Supreme Court would not be attacked, however fairly or unfairly, for any judgment it issued on the matter.
The one thing that may save us, assuming a squeaker where provisional are in controversy, is Ohio’s recount statute. Any candidate can obtain a recount in Ohio, and a recount would give the apparent loser the opportunity to go over the provisional ballots (although this has been an issue in the past) and make an informed decision about whether a lawsuit is really justified. R.C. 3515.01. Where candidates satisfy themselves that there is little chance of victory in an election contest, they may make a strategic decision to forego such a contest in order to avoid being labeled a sore loser. Still, the recount will probably do nothing to stop litigation where the margin of victory is exceedingly close or where the very procedures used to count provisional ballots are themselves in dispute.
I cannot see into the future and, like I said, actually do not think an election disaster is going to occur in the 2008 Presidential year. However, if I was told that a disaster was going to occur and asked to predict its nature, I would describe the scenario alluded to above. And if that happens, let us just say that, for those of us in the election administration community, our lives are going to become very interesting.