Posted: November 4, 2008

Four Sub-Categories of Uncounted Ballots

As we head into Tuesday evening, at Election Law @ Moritz we will be looking for publicly available numbers on these four sub-categories of ballots that will not be included in the initial returns but that potentially will (or at least may) be counted down the road:

1.  Provisional Ballots.  (We’ve discussed this sub-category previously.)

2.  Overseas and "Late Arriving" Absentee Ballots.  These are the ones that are the subject of the lawsuit filed in Virginia by the McCain campaign.  Each state's law potentially intersects with federal law a bit differently on the timetable for counting these ballots.

3.  Problematic Absentee Ballots.  This is the sub-category that is probably least well-understood at the moment, in terms of its potential volume.   Various battleground states (Colorado, Florida, Indiana, and Ohio) have seen reports about absentee ballots that have been set aside as potentially uncountable.  Ohio’s Secretary of State Brunner issued a directive late yesterday requiring absentee voters in this situation to receive notice so that they potentially can rectify problems in order for their ballots to be counted. 

4.  “Residual” Optical Scan Ballots.  These are paper ballots for which the machine records no vote for particular races, and sometimes the machine is in error. 

The total number of uncounted ballots, combining all four of these sub-categories, potentially hangs over the initial returns in each statewide (including presidential) or local election.  To be sure, it is not enough that this total number equal a candidate’s lead in the initial returns in order to put on hold, or cast a doubt about, the outcome of that race.  For example, if a candidate is leading by 10,000 votes in initial returns and there are also 10,000 total uncounted ballots, it is obviously extraordinarily unlikely that all 10,000 would have been cast for the leading candidate’s opponent.  Thus, as a practical matter, there needs to be significantly more uncounted ballots than the candidate’s lead in initial returns in order to potentially make a difference.  But there is no clear magic number on this point.  It depends on which precincts the uncounted ballots were cast in and each candidate’s relative strength in those precincts.  Also, the different types of sub-categories might tend to lean more or less in favor of one candidate than another (e.g., provisional ballots more likely Democratic in certain precincts, whereas overseas absentee ballots more likely Republican, even perhaps in the same precincts). 

It is unclear what time tonight, or tomorrow, we will have reliable numbers in each state concerning each of these four sub-categories.

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