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
Dan Tokaji's Blog
- Election Law Blog (Rick Hasen)
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- Votelaw Blog (Ed Still)
- Leave it to the Lower Courts: On Judicial Intervention in Election Administration, 68 Ohio State Law Journal 1065 (2007)
- The New Vote Denial: Where Election Reform Meets the Voting Rights Act, 57 South Carolina Law Review 689 (2006)
- Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help America Vote Act, 73 George Washington Law Review 1206 (2005)
Tuesday, March 4
Don't Call Ohio Too Soon
That's my advice to the news media tonight, in the event of a close Democratic primary. As returns start to come in from Ohio this evening, we should keep in mind circumstances that will probably result in more outstanding ballots on Election Night than in other states, and maybe even more than is typical for Ohio. If that's true, a margin that appears insurmountable on paper -- even with all precincts nominally reported -- may actually be smaller than it appears.
Here are the big things that might cause there to be a large number of yet-to-be-counted ballots than usual on election night:
- Provisional Ballots. Ohio heavily relies on provisional ballots, which are used for people who've moved, who don't have required ID, and whose names don't appear on the registration list when they go to vote, among other things. Most of us probably remember the delay in calling the 2004 election, when Bush led Kerry by some 136,000 votes with approximately 158,000 provisional ballots left to be verified and counted. When these ballots were eventually counted, they cut Bush's margin by about 18,000 votes. In November 2006, an even higher percentage of Ohio voters cast provisional ballots, over 3%. In light of Ohio's new ID rules, still not completely familiar to many voters, and potential problems with its statewide registration list, we can expect lots of provisionals today as well. Voters have 10 days after the election to bring in their information, and it will be a while after that before we know how many of the provisionals will be counted and who they're cast for.
- Residual Votes. These are ballots that don't register a valid vote, at least when they're run through automatic tabulators. They include undervotes (a ballot that doesn't register a choice) and overvotes (a ballot that registers more than the allowed number of choices). Both can sometimes result from ambiguous marks with paper-based voting systems, but some of the undervotes may be recoverable through a manual recount. Under Ohio law, a ballot on which a voter circles the candidates name or makes a mark with an instrument that can't be recognized by tabulating equiment should eventually be counted. As I explained in Sunday's post, we can expect a significant number of residual votes in Ohio today, because a large number of voters will be voting with central-count optical scan equipment that doesn't allow voters to check for mistakes before casting their votes. Cuyahoga County will be especially hard hit, but other counties will also be affected given that voters in touchscreen counties are allowed to vote a paper ballot on request. If the race winds up being tight, it will be important to know how many residual votes there are -- especially in the Cleveland area.
- Absentee Ballots. Even with all election-day precincts reporting, it's possible that there will still be some absentee ballots not counted. Ohio has no-excuse absentee voting, and there have been reports of large numbers of absentee ballots this year. Ohio counties were permitted to start tabulating absentee ballots on Saturday, but it's not clear how many have actually been counted across the states 88 counties.
- Lines at the Polls. Under Ohio law, voters are entitled to cast ballots if they're waiting in line at the time polls close, 7:30 pm. We've already seen some long lines before election day for early voting at county boards of elections. Although I don't expect the long lines that we saw in 2004, it's possible some voters won't actually cast their ballots -- much less have them tabulated -- for a while after polls officially close.
There are other things that could prevent us from quickly knowing the outcome in Ohio. Another possibility is delays in transporting or counting optical-scan ballots, especially in Cuyahoga County, which my colleague Ned Foley alluded to here. There could be some administrative problems in Franklin County (Columbus area), given the personnel shake-up on the eve of today's election. And we've already today got word of flooding in one Ohio county (Jefferson) that has closed polling places, which will probably result in more provisional ballots and delays in counting all the votes. See this complaint filed by the Secretary of State.
So what margin can be considered safe? That depends. The media of course have other tools at their disposal besides the official count, most notably exit polls, when they call races. But if those are within or close to the margin of error, there's reason to be careful.
If the official tally is within a few ten-thousand votes -- say less than 20,000 -- it's quite possible that the popular vote result might be affected by yet-to-be-counted provisional, residual, and absentee ballots. On the other hand, if the margin is over 100,000 with all precincts reporting, that's unlikely to change. If it's in between, we'd have to look not only at how many ballots are out there yet to be counted, but also at where those voters are to make a reliable assessment of who "won" the popular vote.
This isn't even taking into consideration the difficulties that may arise in determining how many delegates each candidate got. As in other states, most of the state's pledged delegates are apportioned by congressional district. This means that the candidate who got more popular votes may not be the real "winner" in the all-important race for delegates, something that will be difficult to gauge with precision tonight. Given how many of the state's votes won't be counted tonight, it may take a while to get a clear handle on how many of Ohio's delegates each candidate will get -- and perhaps on who really "won" the election.