Election Law @ Moritz

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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.

Free & Fair

Ohio: Wednesday Morning, 3:00am

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November 8, 2006

A recount in an Ohio congressional or statewide race remains conceivable but perhaps less likely than it appeared heading into Election Day.

Based on unofficial returns posted on the websites for the Secretary of State and the Franklin County Board of Elections, it appears that in the election for Ohio’s 15th congressional district the incumbent Republican Deborah Pryce has a lead of 11,261 votes over challenger Mary Jo Kilroy, with 100% of precincts having reported. But, according to the Columbus Dispatch, there still remain approximately 20,000 absentee ballots to be counted, as well as an “unknown” number of provisional ballots. Although these numbers make an automatic recount unlikely (which requires that the margin of victory in a district race to be within one-half of one percent), a losing candidate is entitled to pursue an optional recount at the candidate's expense.

Likewise, in the statewide race for Auditor, unofficial returns at the Secretary of State’s website show the Republican candidate leading by 78,131, or 2.24%, with 96.44% of precincts reporting. The Secretary of State also reports a statewide total of 86,330 absentee or provisional ballots that remained to be counted, but significantly those totals do not yet include figures from several of the state’s most populous counties, including Cuyahoga, Franklin, and Hamilton. The margin of victory necessary to trigger an automatic recount in a statewide race is even narrower than in a district race (one-fourth of one percent, rather than one-half of one percent), but again a requested recount remains an option for a candidate willing to pay for one. Moreover, in Ohio a losing candidate for a state office, but not a federal office, may pursue a judicial contest of the election.