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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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OH-15: Legal Issues in Recount

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November 28, 2006

Several significant legal questions emerge from this morning’s Columbus Dispatch story about the recount that has been triggered by yesterday’s final results in the election for Ohio’s 15th congressional district.

First, the paper reports that the Secretary of State will call for a manual recount of 3% of the Voter Verified Paper Audit Trails (VVPATs), pursuant to that office’s rules for automatic recounts of this kind. Yet, as explained previously by Steve Huefner (building on earlier analysis by our colleague Dan Tokaji), there is a question whether a statute adopted by Ohio’s legislature actually requires a count of all 100% of these VVPATs in this situation, and if so, what legal procedure Kilroy could pursue to enforce compliance with this statute.

Second, the Dispatch article also says that Kilroy is considering a possible challenge to the disqualification of provisional ballots. Apparently, about 2,600 provisional ballots were rejected in Franklin County, out of approximately 21,000 cast, although a portion of these ballots would be applicable to another congressional district. An AP report says that the two main reasons why provisional ballots were rejected were either that the individual was not registered or that the ballot was cast in the wrong precinct. Although federal law does not require Ohio to count wrong-precinct provisional ballots, the Dispatch reports that Kilroy may claim that poll workers failed to comply with an obligation to direct these voters to their correct precinct.

In addition to questions about the merits of any challenges Kilroy might make regarding the rejected provisional ballots, there is a basic procedural question in Ohio about where she might bring this kind of challenge. Although Ohio law would permit a candidate for a state office—Governor, representative in the state’s legislature, and the like—to go to state court to contest the official outcome of the election on this basis, a change in state law earlier this year precludes the availability of this kind of state-court challenge for candidates to a federal office, including one of the state’s delegation to the U.S. House of Representatives. Ohio Revised Code § 3515.08, as amended by HB3, expressly states: “The nomination or election of any person to any federal office . . . shall not be subject to a contest of election conducted under this chapter [which otherwise provides for such contests].”

Instead, this section of Ohio law confines a candidate for federal office, like Kilroy, to whatever remedies may be available under federal law: “Contests of the nomination or election of any person to any federal office shall be conducted in accordance with applicable provisions of federal law.” Because challenging the rejection of provisional ballots would not be part of the state’s automatic recount process that has been triggered for this race—and this point applies whether the automatic recount examines 3% or 100% of the VVPATs—Kilroy may be consigned to contesting the election in Congress itself if she wishes to dispute the disqualification of provisional ballots.

Although Kilroy ultimately may not decide to exhaust all possible avenues and bases for contesting this election, significant legal issues remain unsettled for as long as she contemplates her options.