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Election Law @ Moritz


Thinking about Some Possible Ohio Numbers

Here is how I’m thinking about the two Ohio numbers I will be looking for tonight, especially if Ohio ends up being the key to winning the presidential election.

The first number is the lead that one presidential candidate has over the other based on the initial returns of ballots counted tonight.

The second number is the volume of provisional ballots (as well as other uncounted, but potentially countable, ballots) that will be evaluated for eligibility over the next 10 days.

The key issue is the possibility that the trailing candidate, based on the first number, can overcome that lead by netting enough extra votes derived from the second number.

In 2004, Kerry trailed Bush by about 135,000 votes on Election Night, and there were about 155,000 provisional ballots. When it came time for the final certified count, Kerry narrowed Bush’s lead by only about 17,000, dropping the margin to a little under 120,000. We can think of this as Kerry achieving about an 11% “yield” from the provisional ballots in terms of his ability to narrow Bush’s lead.

By contrast, in 2008, Obama led McCain on Election Night by about 205,000 votes. Coincidentally, there were also about 205,000 provisional ballots that night. One big difference from 2004 was how much Obama was able to increase his lead by the time of the certified count. Obama expanded his lead by about 55,000 votes, to about 260,000. Given these numbers, Obama’s “yield” from the provisional ballots was about 27%, or more than double what Kerry’s had been.

I’m not quite sure what explains the difference in the “yield” from provisional ballots between the two Democratic candidates. I don’t think it is the rate at which provisional ballots were counted, because the rate was fairly similar those two years. I don’t see how it could be just the amount of provisional ballots cast, since why wouldn’t the “yield” rate be constant, whatever the volume of provisional ballots (either 150,000 or 200,000)? Perhaps it is some exogenous factor, concerning absentee ballots or something else.

But whatever the explanation, we need to contemplate the possibility of a different “yield” rate this year. Provisional voting is new enough, in the aftermath of the Help America Vote Act of 2002, that this year we might end up seeing a third “yield” rater (higher or lower than the other two, or somewhere in between), just as we may see a different volume of provisional ballots (higher or lower, or somewhere in between, the two benchmarks of 150,000 and 200,000).

Also, we need to factor in a candidate’s potential aversion to conceding the election too quickly. Suppose, for example, that President Obama is behind at the end of Election Night by 50,000, with the same number of provisional ballots cast as in 2008. Presumably, it would be foolish for him to concede under this circumstance, since he added 55,000 to his lead in 2008. If he has the same “yield” rate, he would be able to overcome a 50,000 deficit.

Now suppose, however, that Obama is behind by 80,000 with the same number of provisional ballots (200,000). He would have to substantially increase his yield rate from 2008, to 40%, in order to overcome this deficit. It seems like a long-shot, but then in 2008 (as indicated above) he more than doubled the “yield” rate from Kerry’s in 2004. Perhaps it would be a “hail mary” to get it up to 40%, but would he want to concede before letting the process of evaluating provisional ballots play out? That’s a political judgment he would need to make, and I’m in no position to assess the politics of it. But it seems like the kind of consideration that is relevant in thinking about the numbers. And, of course, if there are more provisional ballots this year than in 2008—say 250,000, instead of 200,000—then he would only need to increase his “yield” rate to 32% to overcome a deficit of 80,000. That still might be hard, but moving from 27% to 32% might be plausible enough to make a concession seem premature in that circumstance.

Therefore, I’ll be looking at the lead and the volume of provisional ballots, and assessing what “yield” rate would be necessary to overcome that lead, given the specific volume of provisional ballots.

Of course, the circumstances are different if Obama has the lead in the initial returns. Given the propensity of provisional ballots to favor Democratic Party candidates, it would seem much more difficult for Governor Romney to overcome an Obama lead by relying on provisional ballots. He might be able to make up a relatively small gap by relying on uncounted (and potentially countable) absentee ballots. Even so, he presumably needs to hope that he has a comfortable lead in the initial returns tonight; otherwise, he faces the possibility that Obama can catch up by relying on provisional ballots.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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