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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Monday, November 13
We've Only Just Begun
Control of the House and the Senate may be resolved, but a number of elections remain unsettled. As though to prove my colleague Ned Foley prescient, there are -- depending on how you count -- up to 10 congressional races that still remain to be decided. The AP has this rundown, and you can find ongoing updates on Election Law @ Moritz's Recount Roundup. Here are three undecided races worth paying special attention to.

- The closest undecided congressional race is for Connecticut's 2nd District. At one point today, Democrat Joe Courtney's lead over Republican Rob Simmons was down to only 66 votes, after a math error was discovered in the Town of Lebanon. The difference is now reported to be back up to 109 votes, after an election worker in Lyme was found to have written down the wrong number and mistakenly giving 40 extra votes to Simmons. Recounts are still going on in other places and reportedly aren't due until Wednesday midnight, so it's possible that more errors could be discovered.

- In Florida's 13th District, which I discussed in yesterday's post, Republican Vern Buchanan leads Democrat Christine Jennings by 373 votes. What makes this race especially interesting is not just the closeness of the vote, but the fact that over 18,000 of the electronic ballots cast in Sarasota County showed no recorded vote in the race. As described by Moritz's Debra Milberg, recount and audit are now underway. A screen-by-screen depiction of the ballot design, posted by Joe Hall, provides a clue as to why that might be. The placement of the House race at the top of the second page, right after the U.S. Senate race and before the gubernatorial race, might have caused some voters to miss it -- or more properly, think that the candidates were for the prior office if they weren't looking carefully. It would have been possible for voters to catch the error on the first of the "summary ballot" pages (the 22nd screen shot), but some might not have been paying close attention, while others may not have thought it worth their time to go back and cast a vote for the race. Although some advocates have already seized on the high undervote rate to bolster their arguments for a "voter verified paper audit trail" (VVPAT), it's unlikely that this would have prevented the problem, if the ballot layout was indeed the main cause. Voters who didn't notice the omission on the screen almost certainly wouldn't have caught it on the paper printout -- especially given the evidence available so far, admittedly limited, suggesting that most people don't actually check contemporaneously printed paper records when they're provided.

- In Ohio's 15th District, Republican Deborah Pryce leads Democrat Mary Jo Kilroy by 3,536 votes. This isn't the closest outstanding congressional election. In fact, it's not even the closest one in Ohio -- in the 2nd, Republican Jean Schmidt leads Democrat Victoria Wulsin by 2,323 votes. What makes the 15th District race interesting is the large number of provisional ballots in Franklin County, where Columbus and The Ohio State University are located. According to this AP report, there are approximately 18,000 provisional and absentee ballots in Franklin County that still remain to be counted. (The 2nd District race, by contrast, is reported to have only about 4,700 uncounted ballots.) Kilroy is hoping that many of the uncounted votes in the 15th belong to students who cast provisional ballots, because they were deemed not to satisfy the state's new ID rules. The AP notes that counting of Franklin County's ballots will start on Sunday, the day later than permitted. The reason? In addition to giving election workers a much-deserved day off, it will allow them to watch Saturday's game between the #1 ranked Ohio State Buckeyes and the team from that school up north (#2).

Say what you will about us Ohioans and our elections, but we at least have our priorities in order.

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