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Election Law @ Moritz

Election Law @ Moritz


Ohio 2012: What to Watch for

As everyone surely knows by now, the road to the White House runs through Ohio. It’s unlikely that either Barack Obama or Mitt Romney will win the presidency without winning our state. That’s why every wrinkle and wart in Ohio’s election system gets so closely scrutinized. While this scrutiny has some benefits, it can make it hard to ascertain what’s really important and what’s not.

In this post, I break down the major issues with Ohio’s election system worth paying attention to on Election Day – and afterwards, if it’s close.

1. Voting Machines

Ohio uses a combination of direct record electronic (or touchscreen) voting machines and optically scanned paper ballots. Both systems depend on software to tabulate votes, and computer security experts have frequently expressed concern about the integrity of this software.

The most recent manifestation of this issue concerns an experimental software patch that has some progressives worried. The same faction has also expressed concerns about links between Romney supporters and Hart Intercivic, whose voting system is used in two of Ohio’s 88 counties. I’m skeptical of such conspiracy theories, though we can expect to hear lots of them if Obama winds up behind after Election Day after having a small but consistent lead in most recent polls.

Another concern that we may hear more about on Election Day is “vote flipping” – a touchscreen machine indicating that voters chose one candidate, when he or she intended to select another. In the past, most concerns of this nature have come from Democratic-aligned groups, but the Republican Party recently raised concerns about vote flipping in this letter. This problem can be caused by calibration errors. Although it’s doubtful that there’s anything nefarious going on, one or both sides may cry foul if it happens – as it probably will in some precincts.

Perhaps the most significant issues with voting machines are ones that will arise only if the election is close. Like many other states with touchscreen voting, Ohio has a law (ORC 3506.18) requiring a “voter verified paper audit trail.” In Ohio, the paper trail is the official ballot of record if there’s a recount. In the event of a disputed presidential election, there will be very little time for a recount and attendant legal proceedings, as explained below. Moreover, counting the curled up strips of paper that constitute the paper audit trail will be a major headache, one that would undoubtedly trigger flashbacks of Florida.

2. Observers and Challenges

Both sides want to make sure that they’ve got their people in as many polling places as possible. In Ohio, political parties and ballot measure committees are each permitted to appoint one observer for each precinct (Directive 2012-21). These poll watchers used to have the power to challenge voters – and there was a great deal of concern about this process back in 2004 -- but that power was taken away from them in 2006.

Under current state law, observers are only supposed to observe, and presiding election judges have the power to remove disruptive observers. Still, there’s concern in some quarters that observers will overstep their proper bounds, disrupting the voting process and perhaps even intimidating some voters. These concerns arise in part from the aggressive attempts by True the Vote and related groups to recruit and train observers. We’ll see whether they materialize on Election Day.

Although observers don’t have the power to challenge voter eligibility, poll workers do. There have been some reports indicating that some election integrity groups have recruited and helped place people as poll workers. It’s possible that some of these poll workers could be overly zealous in challenging voters in certain areas, such as communities with large numbers of racial minorities or college students. If that happens, it could slow down voting at the polls and potentially result in some voters being required to cast provisional ballots. I don’t expect that we’ll see abuses of the challenge process, but it could happen.

3. Voter Identification

Unlike some other states, Ohio doesn’t require voters to present government-issued photo ID when they go to vote. Instead, state allows voters to present either government-issued photo ID, or a utility bill, bank statement, paycheck, or government document with their name and current address. ORC 3505.18.

After Ohio adopted its ID requirement in 2006, there was some confusion about what forms of ID would be allowed. This was the original subject of the Northeast Ohio Coalition for the Homeless (NEOCH) litigation, which led to a directive (2008-80) clarifying the ID requirement. Still, Ohio’s voter ID rules could lead to some confusion on the part of voters and poll workers alike.

An even more serious problem has arisen just in the last few days, concerning the ID requirement for voters who are required to cast provisional ballots. Under Ohio law, provisional ballots are accompanied by an affirmation that includes, among other things, the form of ID that the voter used, which may be the last four digits of the voter’s Social Security number, driver’s license number, or documentary ID.

Under Ohio law, the poll worker is supposed to indicate the form of ID the voter presented, using a form specifically prescribed by state law (ORC 3505.182). But early this year, the Secretary of State issued a different form (12-B), which imposes the burden of indicating the ID used on the voter. On Friday evening, Secretary of State Husted issued this directive (2012-54), providing that provisional ballots will be rejected if the ID information is missing.

This eleventh-hour directive threatens to result in a significant number of provisional ballots being rejected. Even though Ohio law clearly places the burden of indicating proper ID on the poll worker, the Secretary of State has shifted that burden to the voter, on pain of having their votes denied if they fill out the form wrong – something that will predictably happen with some voters. In 2008, almost 2000 Ohio provisional ballots were rejected on the ground that the voter lacked ID. We can expect to have significantly more if this directive stands.

For this reason, the plaintiffs in the NEOCH case along with those in a related lawsuit (SEIU v. Husted) have indicated their intent to file papers in federal court on Monday morning, challenging Husted’s directive. This is an important issue, one that could make a difference if the margin separating the candidates is small.

4. Absentee and Early Voting

As we saw in Minnesota’s contested U.S. Senate election four years ago, absentee ballots are among the things that candidates can fight over in a very close election. That can include disputes over ambiguously marked ballots, and over whether certain absentee ballots should be counted at all.

As in many other states, a large and increasing percentage of Ohio voters have chosen to vote absentee. Michael McDonald’s U.S. Election Project estimates that over 1.6 million Ohioans have already cast their ballots, through either mail-in absentee or in-person early voting. That’s almost 30% of the total turnout four years ago, with more on the way.

We’ve already seen a major fight over early voting in Ohio, resulting in a court order requiring that civilian voters be given equal access to military voters during the last three days before the election (Obama for America v. Husted). But there’s another important issue that’s emerged in the past few days, this one concerning mail-in absentee ballots.

Some registered voters who requested absentee ballots in Ohio didn’t receive them. As the Columbus Dispatch reported on Thursday, the problem appears to stem from a data-sharing glitch, which resulted in some counties not having updated registration information. This led to some voters erroneously being denied absentee ballots on the ground that they weren’t registered. A voting watchdog group estimates that 38% of rejected requests in Franklin County came from voters who really were registered, which would translate into thousands of improperly rejected requests statewide.

This glitch threatens to create serious problems for some voters. Even if the people affected were sent absentee ballots after the data-sharing error was fixed, it’s not clear that they’ll have enough time to return those ballots. Some may be elderly, sick, or have disabilities that make it hard for them to go to the polls on Election Day. Others may wrongly believe that they’re not registered -- because the county board of elections told them they weren’t registered – so might not vote at all. And those who were sent absentee ballots, but didn’t get them before Election Day, will have to cast provisional ballots.

5. Provisional Ballots

That brings us to the most important issue that can be expected to emerge in the event of a contested election. Ohio relies heavily on provisional ballots, with over 206,000 cast in 2008 – more than any other state except California and New York. Over 80% of those ballots were eventually counted, but that still left almost 40,000 that weren’t counted. In Ohio, voters cast provisional ballots for various reasons, including: (1) their names don’t appear on the list when they go to vote, (2) they don’t have the required ID, (3) they’ve moved without updating their address, and (4) they’ve been sent an absentee ballot.

If there’s a close election that comes down to Ohio, provisional ballots will likely be the main subject of dispute. The large number of provisional ballots Ohio casts means that the result may be in doubt, even with a margin that would be safe in other states. In other words, the large number of provisional ballots increases the margin of litigation.

An example may help illustrate. Suppose that Romney were leading Obama by 20,000 votes in Ohio on Election Night, with all precincts reporting and all absentee ballots counted. That margin might be safe in a state with few provisional ballots. But if there are 200,000 provisional ballots – roughly 160,000 of which are likely to be counted -- then we won’t likely know the result for at least two weeks, and perhaps as long as three weeks.

To put this in perspective, John Kerry closed the gap in Ohio by over 17,000 votes after all the provisionals were counted in 2004. That wasn’t enough to change the result of that election, but provisionals have made the difference in some other races, including a 2008 U.S. House race in which those ballots put the Democratic candidate over the top. If the margin separating the candidates is in the low tens of thousands – and especially if Romney is ahead -- we can expect disputes over which provisional ballots should be counted.

Fortunately, one important provisional voting question has already been resolved. Under a recent court order in the NEOCH/SEIU litigation, provisional ballots will be counted if cast at the right location but wrong precinct due to poll worker error, while provisional cast at the wrong location won’t be counted.*

Other provisional voting questions haven’t yet been resolved. One concerns the ID issue noted above – specifically, whether provisional ballots should be counted when identifying information is missing.

Perhaps the most important unresolved question concerns provisional ballots cast because the voter’s name didn’t appear on the registration list when he or she voted. In Ohio, those provisional ballots should be counted, if the voter appeared at the correct polling location and was registered anywhere in the state at least 30 days before Election Day.

How are counties to determine whether a voter was registered? Under Directive 2012-54, they’re supposed to search not only the county’s local database, but also the statewide database “by entering as much or as little information as available.” This isn’t exactly a model of clarity. Moreover, it raises the same concern noted above, with reference to absentee voting. There might be problems with the database itself, and with the manner in which counties do their searches.

This issue affects a large number of votes. In 2008, for example, almost 19,000 provisional ballots were rejected because the voter was found not to be registered – by far the largest category of rejected provisional. Thus, if Ohio is close, we can expect a lot of attention to whether provisional voters were really registered or not, and the process that’s followed in making that determination.

6. Post-Election Litigation

The last issue concerns the shape that any post-election fights will take. Although it’s difficult to make any predictions, there are some peculiarities of Ohio law that are important to be aware of.

In Ohio, the process of counting provisional ballots and canvassing results won’t likely be complete for three weeks after the election. A candidate may request a recount once the results are declared (ORC 3515.02), but there won’t be much time. Under Ohio law, recounts have to be completed 35 days after the election (ORC 3515.041) – that is, by December 11, the so called “safe harbor” date by which states must determine their electors to be assured of Congress respecting their choices. The safe harbor deadline will leave precious little time for a recount.

Another peculiarity of Ohio law concerns the venue in which post-election litigation may be brought. Ohio eliminated contests of federal elections, including the presidential election, in 2006. ORC 3515.08(a). This eliminates one potential basis for litigation and delay – but it doesn’t mean that there won’t be lawsuits, if the election is close.

Given the absence of a contest procedure under Ohio law, we may see candidates or their allies go to federal court, if they believe that there’s been a violation of the U.S. Constitution. It’s possible that existing cases will be used as a vehicle for raising new issues, or that new cases will be filed as placeholders for issues that might arise. In a close election, this litigation can be expected to move forward even before the canvass is complete, given the imperative of resolving any post-election disputes by the safe-harbor date. While the precise course of post-election litigation is hard to predict, we can expect that it will move quickly.


If all this sounds a little scary . . . well, it is. But remember, most of these issues are likely to come into play only if the election turns on Ohio and the margin is in the low tens of thousands. In a state with around six million likely voters, the odds are low that we’ll be talking about any of this after tomorrow.

Still, we might all want to say the election administrators’ prayer before going to bed tonight: “Lord, please don’t let this election be close.” Especially in Ohio.

* Disclosure: I was one of the lawyers for the League of Women Voters of Ohio and Common Cause Ohio, in an amicus brief filed with the Sixth Circuit regarding the wrong-precinct provisional ballot issue in NEOCH/SEIU.

Dan Tokaji is an authority on election law and voting rights. He specializes in election reform, including such topics as voting technology, voter ID, provisional voting, and other subjects addressed by the Help America Vote Act of 2002. He also studies issues of fair representation, including redistricting and the Voting Rights Act of 1965. View Complete Profile


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