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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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Tuesday, November 4
The Calm Before the Storm?
It's a beautiful autumn day here in Columbus, Ohio. As I took a walk around the Statehouse during a blogging break this afternoon, the weather seemed to match the climate of today's election.

To be sure, this Election Day has seen its share of problems like lines at some polling places, voting machines not working properly, voters being denied provisional ballots if they don't have ID, and other scattered problems. And there has been some significant litigation activity in key swing states, including Indiana (registration), Ohio (provisional ballots), and Virginia (military ballots). But based on perusing news reports and talking to people here and across the country throughout the day, my general impression is that it's been a relatively smooth election.

All this should be qualified by noting that it's always perilous to judge an election successful while it's still going on. There's still lots that could go wrong. As I mentioned yesterday, some of the most serious problems that can happen during an election -- such as voters not showing up on registration lists -- tend to be less visible while voting is still going on, and won't come into play unless and until there's an unusually tight race on which the outcome hinges. That can certainly happen in a presidential race, as we saw in Florida eight years ago. It can also happen in down-ballot races like Washington's contested gubernatorial election four years ago.

If there's a similarly close election this year, then problems that are hidden from view at the moment will rapidly come into view. The most likely form that this will take this year is a fight over provisional ballots, absentee ballots, military ballots, and residual votes, as my colleague Ned Foley suggests in this post. In the event of a close race, presidential or otherwise, these are the potentially uncounted votes that will be vital to pay attention to.

Election officials, of course, hope that it won't come to this. Hence the famous night-before-election prayer, "Please don't let it be close." Many voters are undoubtedly saying the same prayer right about now. We'll see whether it turns out that way.

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Moritz College of Law The Ohio State University