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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.

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Ohio Provisional Ballots Back in Court

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November 11, 2006

A status conference has been scheduled for 2pm on Monday, November 13, in NEOHC v. Blackwell, the federal-court case that will determine the procedures for determining the eligibility, and then counting, provisional ballots in Ohio. As the New York Times reported today, both sides are hoping to work out an agreement over these procedures by then. One subject of discussion apparently is the method by which partisan observers may monitor the process by which boards of elections make their eligibility determinations and then conduct the conduct of these ballots.

This process has the potential, at least theoretically, for affecting the outcome of one statewide and two congressional races, as well as other local elections in the state. According to a report in the Akron Beacon Journal, there remain “more than 211,000” uncounted ballots statewide, although an unspecified portion of these are absentee rather than provisional ballots. The one statewide race that remains undecided, that for Auditor, has apparently tightened somewhat, with Republican Mary Taylor leading Democrat Barbara Sykes by 71,636 votes, or just under 2%. Even so, the chances would seem remote this margin will be overcome by a lopsided pro-Sykes ratio emerging from the uncounted ballots.

A similar conclusion regarding the Pryce-Kilroy race for Ohio’s 15th congressional district was reached today by the Columbus Dispatch, in a precinct-by-precinct analysis of the uncounted ballots applicable to that race. (The article is accompanied by maps showing the relative volume of uncounted absentee and provisional ballots in Franklin County precincts.) Yet the newspaper’s own analysis contained reasons for being cautious about its conclusions. The Dispatch explained that it assumed that uncounted ballots within each precinct would track the same ratio as the counted ballots from the same precinct. Yet the newspaper noted that “[p]rovisional ballots usually skew Democratic,” which would give Kilroy a gain even larger than the 1800 net votes she would pick up according to the paper’s precinct-by-precinct assumed ratio.

The Dispatch also observed, however, that not all provisional ballots can expect to be counted, because some percentage will presumably be ruled ineligible. “In 2004, 15 percent of provisional ballots were rejected in Franklin County,” adds the Dispatch. The higher this ineligibility percentage, the harder it is for Kilroy to make up the 3,536-vote difference she currently faces, according to the Secretary of State’s unofficial results. Consequently, it can be expected that the Kilroy campaign will scrutinize closely the rules for evaluating the eligibility of provisional ballots that emerge from Monday’s proceedings in federal court.

Meanwhile, with respect to Ohio’s other undecided congressional race, the 2nd District, the Cincinnati Enquirer today published an AP report that reiterated the figure of “roughly 4,700” uncounted ballots applicable to that race, where Republican incumbent Schmidt leads Democratic challenger Wulsin by a 2,323-vote margin. Given the discrepancy between this figure and an earlier Enquirer article, it would seem that this newspaper is now adopting the AP number as its own.