Cincinnati, Ohio — If the presidential election goes into “overtime” — if no winner is known on Wednesday morning after the election — the culprits may be procrastinating absentee voters in Ohio. If it goes on beyond that with no decision, it may be due to lawyers from both parties’ fighting trench warfare over individual ballots in a bloody recount. It could easily happen in other states, but the danger of an “overtime” election is perhaps greatest in Ohio.
This year for the first time, Ohio officials mailed every registered voter in the state an application for an absentee ballot. A total of 1.3 million applications flooded in, and to date some 1.1 million, or 85 percent, have been returned. But many of the rest won’t be mailed before the election. So what if the voters who failed to send in their absentee ballots show up at their polling places on Tuesday asking to vote?
They will be allowed to, but only by provisional ballot in order to make sure they don’t vote twice.
Other people will have to cast provisional ballots — those who have changed their names or moved but not sent in a change of address, or those who have registered just prior to the deadline this year but whose names don’t show up on local precinct lists. There will also be people trying to vote who aren’t eligible — because they didn’t register in time or don’t have even a non-photo form of ID. By law, none of those provisional ballots can be opened and counted for ten days — until November 17. Voters have those ten days to contact their local election board to provide additional information to get their vote counted. In addition to provisional ballots, some 20,000 or more absentee votes that arrive after Election Day will remain uncounted for ten days.
“Ohio could be close enough that those provisional and other ballots will matter,” says Tom Burke, the chairman of the Board of Elections in Hamilton County, which contain’s Cincinnati. In 2008, over 207,000 such ballots were cast. Ohio has often been close in presidential contests. Jimmy Carter won the state by only 11,000 votes out of 4.1 million cast in 1976, and in 2004 George W. Bush’s margin of victory was only 119,000. Lawyers for John Kerry, Bush’s opponent, have told me they planned to go to court in Ohio if the margin had been less than 50,000 votes. Kerry did not concede the state — and the presidency — until 11 a.m. on the Wednesday after the election.
A fight over ballots is guaranteed to ensue this year in Ohio if the margin of victory is within one-half of one percentage point of votes cast — or about 25,000 votes. An automatic recount kicks in at that point. Legal challenges could prevent it from beginning until early December. That’s a problem given that December 11 is the deadline by which Congress is required to honor a state’s results. If Ohio misses that deadline, it will have to find some way to deliver its results by December 17, when the Electoral College is scheduled to meet.
People on both sides of the political divide — from Ohio’s former Republican secretary of state Ken Blackwell to Lawrence Norden of the liberal Brennan Center for Justice — use the same word to describe either a recount or a fight over provisional ballots in Ohio: “nightmare.” Election officials and lawyers from both parties will scrutinize all the provisional ballots and argue over whether they should be counted. In 2008, one in five were ruled ineligible. “Ohio has a history of litigating over the rules for counting provisional ballots,” Ned Foley of the Moritz College of Law at Ohio State told National Journal.
Washington State’s 2004 photo-finish race for governor demonstrated the kind of chaos that can result from this scenario. On the night of the election, Republican Dino Rossi appeared to be the winner over Democrat Christine Gregoire by about 3,000 votes. But there were enough provisional ballots and absentee ballots that had been mailed but had not yet arrived to swing the election.
Democrats in Seattle’s liberal King County demanded the names and addresses of voters so they could contact them and correct any errors in their provisional ballots. County officials responded that the information was private, and Republicans argued that having partisans scavenge for votes would increase the potential for fraud.
But Superior Court Judge Dean Lum ordered officials to give the names and addresses of provisional voters to the Democratic party. Democrats spent the next three days knocking on doors and calling voters. Ryan Bianchi, communications director for Christine Gregoire, made it clear how partisan their approach was. Democratic volunteers asked if voters had cast ballots for Gregoire. “If they say no, we just tell them to have a nice day,” he told the Seattle Times. Only if they said yes did the Democrats ask if they wanted to make their ballots valid. Republicans tried to play catch-up but were woefully outmanned.
In the end, Democrats turned in some 600 written oaths from provisional voters and Republicans about 200. King County suddenly announced that it had 10,000 more absentee ballots than it had previously estimated. When the official vote count was certified on November 17, Rossi’s lead fell to 261 votes.
At that point, an official recount was held by running all the ballots back through machines. But in King County, officials “enhanced” 710 votes that had been rejected by the machines, in some cases altering them with correction fluid or filling in the ovals on the optical-scan ballots. In the county, which has 30 percent of the state’s voters, Gregoire harvested a net gain of 219 votes — more than the changes in the rest of the state for both candidates combined. Rossi’s lead was down to 42 votes when the machine recount ended on November 24.
Democrats put up the $750,000 required to pay for a third count of the ballots — this time by hand. But a hand count is less precise than a machine count, as the spectacle of Florida’s hanging chads proved during the 2000 recount. “When you’re talking about close to 900,000 pieces of paper, I think the machine count is going to be more accurate than a manual count,” admitted Democrat Dean Logan, the then-director of elections for King County.
No kidding. Halfway through the hand recount in King County, officials announced they were overturning the policy of not counting ballots that had ovals filled in for both candidates (“overvotes”), and would instead send those ballots to a canvassing board for review. Then, it was learned that 2,000 more votes were counted in King County than the number of individual voters who appeared on the list of those who had cast a ballot. Logan admitted the discrepancy, but said that it did “not clearly indicate that the election would have turned out differently.”
Finally, King County officials admitted to discovering 573 new absentee ballots weeks after the election and then counting them. They also acknowledged that at least 348 unverified provisional ballots were fed directly into vote-counting machines on Election Day. “Did it happen? Yes. Unfortunately, that’s part of the process in King County,” Logan’s deputy Bill Huennekens told the Seattle Times. “It’s a very human process, and in some cases that did happen.” In the four previous November elections, King County workers had never mishandled more than nine provisional ballots in a single election.
All of these changes added up. Two days before Christmas, 2004, Gregoire was declared the winner by 129 votes. Voters were outraged. A January poll found that respondents favored a revote for governor by 53 percent to 35 percent. The Republican party contested the election, and the case went to trial before Judge John Bridges in May 2005.
After weeks of testimony, the judge ruled that 1,678 illegal votes were cast (felons, double voters, etc.) and that there were 875 more votes than credited voters who had cast ballots in King County, as well as 540 more uncredited votes in other counties.
But the judge ultimately agreed with Gregoire’s lawyers that there was insufficient evidence to attribute the uncredited ballots to illegal voting, and he ruled that the illegal ballots couldn’t be subtracted from a candidate’s total unless it could be proven for whom the vote was cast.
Curiously, the failure of the Rossi lawsuit didn’t make much difference in public opinion. A poll of state voters showed that more people believed that Rossi was the legitimate winner of the election after the trial than before. But Christine Gregoire was installed in the governor’s mansion in Olympia, and she lives there to this day (she is retiring this year).
Unlike Florida in 2000 or Washington State in 2004, if a similar recount were to happen in Ohio or elsewhere this year, every decision about every ballot would be fought out in social media. It might make for an exciting story, but it would be one that would do a lot to damage our democracy as well as the legitimacy of whoever is inaugurated as president.
— John Fund is national-affairs columnist for NRO and a co-author of the newly released Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter Books).