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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Wednesday, November 8
Undecided Elections in Ohio
Although the big U.S. Senate contests in Montana and Virginia appear closer to resolution, there are still some House races up in the air. Two of them are in Ohio, the 2nd and 15th congressional districts. As shown here, Democrat Victoria Wulsin trails incumbent Republican Jean Schmidt by 2865 votes in the 2nd district race, while Democrat Mary Jo Kilroy trails incumbent Republican Deborah Pryce by 3536 votes in the 15th, as of this writing.

One of the intriguing possibilities to consider is how a post-election fight over the election results would play out, given some of the changes that I noted in Monday's post. Three of these changes could turn out to be particularly significant: (1) the increased number of absentee ballots, arising in part from fears of long lines and new technology; (2) the increased number of provisional ballots, arising from confusion among voters and poll workers over the new voter ID requirements; and (3) the "voter verified paper audit trail" (VVPAT) printouts on touchscreen voting equipment now used in many Ohio counties.

The situation in Ohio's 15th provides an example of how these changes might come into play. Most of the voters in this district reside in Franklin County, where Columbus is located, with portions of the district in two smaller counties (Union and Madison). I'm told that there were a very large number of absentee ballots cast in Franklin County before Tuesday's election. Most of those have now been counted, but there were still around 20,000 late-arriving absentee ballots that hadn't been counted as of this afternoon. In addition, there are around 20,000 provisional ballots that hadn't yet been verified or counted -- up from under 15,000 provisional ballots in Franklin County's 2004 general election. Many of these can't be verified or counted for at least 10 days after the election, the time allowed for voters to bring in ID or other documents that they didn't present at the polls.

It would be difficult for Kilroy to make up the 3536 votes by which she reportedly trails Pryce for the 15th district seat, but it's not beyond the realm of possibility, as some back-of-the-envelope estimates reveal. Roughly half of Franklin County voters reside in the 15th district. Assuming that about half of the outstanding provisional and absentee ballots in Franklin County come from that district, there would be about 10,000 absentee ballots and 10,000 provisionals that could still be counted in the 15th district race. Not all the provisionals will ultimately be counted, since some voters will be found unqualified, but the 2004 election suggests that about 80% (in the neighborhood 8,000) will be qualified.

Assuming that there are around 18,000 absentee and provisional ballots that will ultimately be counted in Franklin County, Kilroy would have to pick up almost 11,000 of them to catch Pryce. That's unlikely, but we may not know for sure for several days given the length of time it will take to validate and count provisional ballots. (I'm leaving out the other two smaller counties, but it will be difficult for Kilroy to pick up votes given that these lean Republican. Thus, it's fair to assume that the best she can hope to do there is to break even on any uncounted provisionals and absentees.)

If the 15th district race were to tighten up after all the absentee and provisional ballots are counted, a recount of the vote is possible. This is an especially interesting prospect, given that it would provide the opportunity for the first large-scale recount of which I'm aware, in a district using electronic voting machines with the VVPAT. As I noted in this post, the VVPAT is the official ballot of record in Ohio elections. When Cuyhoga County's electronic VVPAT system made by Diebold was studied after the May primary, a lot of problems were found, including crumpled, torn, and otherwise compromised paper records. Franklin County uses a different type of electronic VVPAT system, made by ES&S, so it may not have the same sort of problems found. But there have been some reports of printer jams and other technical difficulties in yesterday's election.

I've noted here the potential perils, both legal and practical, that could arise in a recount of VVPAT records. Notwithstanding these concerns, and the headaches for election officials associated with a recount, it would in a sense be much better to go through a "trial run" recount with VVPATs in this year's election, rather than face the prospect of conducting the first such recount in a razor-thin presidential race in 2008. A recount in one of this year's VVPAT elections, like the one in the 15th district, would likely hold lessons that would prove valuable down the road. Not that one ever hopes for a recount but, in this case, it could be useful.

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Moritz College of Law The Ohio State University