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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Margin of Litigation in Ohio?

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November 3, 2004 (1:53 a.m. ET)

Steven F. HuefnerSteven F. Huefner
Senior Fellow, Election Law @ Moritz
Associate Professor of Law; Director, Legislation Clinic
Moritz College of Law


At present, it appears that the margin of victory in the Presidential race in Ohio will be less than 200,000 votes, possibly less than 100,000 votes. If so, Ohio might then be within the "margin of litigation"-meaning that legal challenges would not be surprising, in light of the possibility of provisional ballots in the hundreds of thousands. These are some of the election law challenges that we can imagine:

  1. Disputes about which provisional ballots should be counted.
  2. Disputes about which absentee ballots should be counted.
  3. Disputes about inconsistent rules from precinct to precinct in counting provisional ballots.
  4. Further appeals about how election-day balloting occurred in the precincts with long lines.
  5. Recounts of ambiguously marked punch card ballots.

Challenges on any of these grounds could begin to occur immediately, or might also occur as part of an election "contest," a statutory procedure that must await the official canvass of returns that will not commence until eleven days after election day.