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Election Law @ Moritz

Free & Fair

Numbers Show Ohio at Unique Risk of Disputed Presidential Votes

Today, December 17, is the date the presidential electors of each state meet to cast their official votes for president. No drama surrounds the event this year, because there have been no vote-counting disputes between November 6 and now that could affect the outcome of the presidential election. To invoke a phrase that has become familiar, the margin of victory was comfortably beyond the margin of litigation.

But, as 2000 showed, it may not always be so, and some numbers from this year’s election indicate that, of all the presidential swing states, Ohio is the most vulnerable to a ballot-counting dispute that would delay determining the Electoral College winner. As will be detailed below, the swing states fall into three categories in terms of their level of risk--low, medium, or high--with respect to a disputed presidential election.  Ohio stands alone in having the highest risk.

Back on November 6, while waiting for the initial vote tallies from the battleground states, I tried to calculate what the margin of litigation might be. Or, to state the point somewhat differently, I tried to determine the deficit by which a presidential candidate might be behind in an outcome-determinative swing state, based on the initial count of ballots on Election Night, and yet still fight on in the hope of being able to overcome that deficit during the canvass of returns, leading to that candidate’s being pronounced the winner in the official certification of the result.

Focusing on Ohio, which Nate Silver (among others) had predicted would be most likely to be the “tipping state” this year (the one which would determine the winner of the Electoral College)—and which, in fact, had been the decisive state in 2004—I reviewed the relevant numbers from 2004 and 2008. Between Election Night and official certifications, John Kerry had managed to reduce George Bush’s lead in Ohio by only some 17,000 votes, from about 135,000 to a little under 120,000. No wonder, then, that Kerry conceded the morning after Election Night, after his campaign did the math. He could not come close to overcoming his Election Night deficit and therefore it certainly was not worth the fight. Had his Election Night deficit been 20,000 votes, however, it would have been worth fighting on during the canvass, as it turned out that he gained almost that amount without even fighting for it. And since on Election Night (or the morning after), he could not know exactly how much he might make up if he pursued the task vigorously, he reasonably might have perceived the 2004 presidential election to be within the proverbial “margin of litigation” if he had been behind by 30,000 or even 40,000 votes.

On election night in 2008, Obama was way ahead in Ohio, by about 205,000 votes, on his way to his Electoral College landslide. Interestingly, however, he increased his lead in Ohio between Election Night and official certification by about 55,000 votes, much more than the 17,000-vote gain that Kerry made during the equivalent canvass in 2004. Thus, hypothetically, if the 2008 presidential election had all come down to Ohio in the same way that it did in 2004, and if Obama had been down in Ohio on Election Night by 50,000 votes, he easily could have made up that rather large deficit—since he did even better than that during the actual 2008 canvass without lifting a finger. Indeed, if Obama had been behind in Ohio on Election Night in 2008 by 60,000 votes, or perhaps even more, and if Ohio had been the decisive state that year, the election still would have been within the margin of litigation, as Obama would have had a reasonable shot at overcoming a 60,000-vote deficit.

This year it turns out that Obama expanded his lead in Ohio between Election Night and official certification even more than he did in 2008, by some 66,000 votes, again without even trying. According to numbers printed in the Washington Post on November 8, Obama led Romney in the initial returns (with 100 percent of precincts reporting) by 100,142 votes. By the time Ohio’s Secretary of State posted the official certified result, Obama’s victory over Romney in the state had increased to 166,214.

Thus, the margin of litigation in Ohio has expanded again. If Ohio had been the decisive state this year (as it was in 2004), and if Obama had been behind on Election Night by 60,000 votes, he easily could have made up that difference—as he yielded even more votes than that during the actual canvass this year! Had he been behind by 70,000 or even 80,000, it still would have been worth a fight, since it would not have been unreasonable for him to think that he had a decent shot at making up even that large a deficit. Back on November 6, when contemplating the possibilities, I had characterized making up an 80,000-vote deficit as a “long shot.” But my assessment had been based on what happened in 2008, when Obama picked up “only” 55,000 votes between Election Night and official certification. Knowing now that Obama actually picked up 66,072 votes during the canvass this year without any fight at all, I still think the odds would have been against him if he had been down by 80,000, but the odds now seem somewhat shorter than I originally estimated. The margin of litigation in Ohio, in other words, is even larger than I believed on November 6.

What explains this expanding margin of litigation in Ohio? Funnily enough, it is not an increase in the number of provisional ballots. Ohio’s Secretary of State has not released a final official total of the number of provisional ballots cast in the state this year. But unofficial reports on Election Night put the number around 200,000, which would make it down slightly from the 206,859 provisional ballots in 2008. To be sure, Ohio had a very large number of provisional ballots in both 2008 and 2012, which likely made it possible for Obama to add so much to his victory each time. Still, there must be some other explanation for Obama’s gain in the canvass being 11,000 votes larger this year than in 2012 (with a similar number of provisional ballots cast). It is very much worth trying to figure out this explanation, since reversing this trend—and thus reducing the margin of litigation in Ohio—should be a high priority for anyone who wishes to limit the risk that a future presidential election becomes mired in an “extra innings” dispute, spanning from after Election Night through the canvass and leading up to the official certification required for the Electoral College meeting in that state. (It is possible that a change in the rate at which provisional ballots are counted, or some other demographic shift affecting the counting of provisional ballots—despite the relatively constant rate at which they were cast in both 2008 and 2012—might be a factor in explaining Obama’s increased gain in 2012 from initial returns to official certification. But we cannot do more than speculate about this until we see the full set of numbers concerning provisional ballots in Ohio this year.)

It turns out, moreover, that Ohio is something of an outlier among battleground states in having such a large margin of litigation. Based on the numbers in the same November 8 edition of the Washington Post, Election Law @ Moritz Research Fellow Jennifer Hart has calculated the difference between Obama’s initial lead and his certified victory in each of the battleground states. This difference is largest in Ohio—again, 66,072 votes— and only Michigan comes close, at 56,130. Here’s the full list, in descending order:

Obama’s gains from initial returns to official certification:



















New Hampshire


In addition to these ten states, Obama also gained 5,461 votes between initial returns and official certification in North Carolina, but there he was decreasing Romney’s lead rather than increasing his own. (All these numbers come from the last column of the spreadsheet prepared by Jennifer Hart, which is also available here.) What to make of the fact that in none of these states did Romney gain ground from the initial returns to final certification? That’s a point to consider after addressing some others.

First, these numbers reveal that there is a group of battleground states with fairly low margins of litigation. These states are Wisconsin, Iowa, Nevada, and New Hampshire, as well as North Carolina. A Democratic candidate for president would need to be behind the Republican in the initial returns by less than 10,000 votes in order to have a reasonable shot at making up the difference and pulling ahead during the canvass. These states, in other words, conform to the traditional expectation among recount lawyers that unless the gap between the two candidates after all the returns are in on Election Night is exceptionally narrow, it is very difficult for the trailing candidate to come from behind and, through lawsuits or other forms of disputation, overtake the leading candidate.

Second, however, there is another group of states with a somewhat expanded margin of litigation. These states are Florida, Colorado, Pennsylvania, and to an even greater extent Virginia. In these states, a Democratic candidate could be behind on Election Night by 30,000 votes—or, in the case of Virginia, even 40,000 votes—and still have a realistic chance of overcoming that deficit during the canvass. One could look at these numbers in two ways, either a “glass half empty” or “glass half full” perspective. Seeing the glass half empty, one might say that these battleground states face a significant risk of a disputed presidential election. If any of these states becomes decisive to determining the winner of the Electoral College in 2016, and if the Democratic candidate is behind the Republican by only 30,000 votes in the state on Election Night, then the state will confront an “extra innings” dispute during the canvass as the two presidential candidates conduct a ballot-by-ballot battle up to final certification of the winner.

Conversely, seeing the glass half full, one could point out that these swing states at least are not as vulnerable to a disputed presidential election as Ohio is (or Michigan, which is less likely to be the “tipping state” that determines the winner of the Electoral College). The Election Night lead for the Republican candidate would need to be below 50,000 in any of these four states (again, Florida, Colorado, Pennsylvania, and Virginia) for the Democratic candidate to have a reasonable chance of prevailing in the end. A statewide lead of less than 50,000 is extremely close—not as close as less than 10,000, but still very, very close. (This year, only in Florida and New Hampshire was the gap between Obama and Romney in the initial returns less than 50,000 votes, and in Florida only just barely: 47,016. In New Hampshire, it was 39,634.) Thus, these four states may face an elevated risk of a disputed presidential election, but from the “glass half full” perspective the margin of litigation in these states remains fairly narrow.

Not so in Ohio. Unlike the other perennial battleground states in presidential elections, Ohio has a uniquely large (and curiously growing) margin of litigation, and thus faces a uniquely higher risk of being the site of a disputed presidential election. Ohio is unique in this respect, not only because the difference between its initial returns and certified result is the largest of any battleground states, but as between Ohio and Michigan—the two battleground states with the largest margins of litigation—Ohio is much more likely than Michigan to be the single state that determines the Electoral College winner (as, indeed, Ohio was in 2004).

Ohio thus currently stands in a different posture than Florida, Colorado, Pennsylvania, and Virginia—the other presidential swing states with a somewhat elevated risk of hosting a dispute over the counting of their presidential ballots. Whereas in these states the Election Night gap between Republican and Democratic candidates would need to be less than 50,000 for the state to be within the margin of litigation, in Ohio the gap could be much larger, perhaps as high as 80,000 or even 100,000 votes. Moreover, it is important to understand the significance of the fact that the margin of litigation in Ohio is growing: whereas in 2004 Kerry could not have expected to overcome an Election Night deficit of 80,000 votes, in 2012 Obama reasonably could have thought that he would have had a decent chance to surmount even this large a deficit (had he needed to). It is as if Ohio, knowing that it is a prime target of a potential disputed presidential election, is expanding the size of the bull’s-eye.

Presumably, Ohio would be better served if it could figure out a way to shrink the size of this bull’s-eye and at least be in line with the other group of “mid-risk” swing states (Florida, Colorado, Pennsylvania, and Virginia), even if it cannot narrow the scope of its margin of litigation all the way down to the “lowest-risk” group (Wisconsin, Iowa, Nevada, and New Hampshire, as well as North Carolina). One way to think about this particular point is to say that Ohio at least should try to return to the level of risk it faced in 2004, when its margin of litigation was more comparable to the current mid-risk group of states. Indeed, Kerry’s 17,000-vote gain from initial returns to final certification was lower than Obama’s gain in any of these mid-risk states (the smallest of these being in Pennsylvania, at 21,975). Ohio made sweeping changes to its voting laws after the 2004 election, and in light the huge gains that Obama made in both 2008 and 2012 between initial returns and official certification, Ohio may wish to reexamine some of those changes.

Decreasing the number of provisional ballots is a step Ohio could take to reduce its margin of litigation. But Ohio likely will wish to consider other possible measures as well. Ohio already had a fairly large number of provisional ballots in 2004 (roughly 150,000), when its margin of litigation was much lower than in 2008 and 2012. And, again, the volume of provisional ballots in Ohio does not explain the significantly increasing margin of litigation from 2008 to 2012. Further study is needed to shed more light on this issue.

There is one more point worth making about these numbers. In all of these states, as already indicated, Obama was the candidate to gain ground between the initial returns and official certification. In other words, in not one of these battleground states was the movement from Election Night to official certification beneficial to Romney. This uniform asymmetry is potentially important. For one thing, it means that the margin of litigation on Election Night is different for Democratic and Republican presidential candidates. If a Republican presidential candidate is behind in Ohio on Election Night by 50,000 when all the initial returns are in, he cannot reasonably expect to be able to make up this gap by fighting on (as Karl Rove eventually realized, albeit in a rather confused public display). By contrast, given Ohio’s numbers in both 2008 and 2012, a Democratic candidate could expect to easily make up a 50,000 deficit on Election Night. Putting the point differently, a Republican candidate should hope to be up in Ohio by more than 50,000 votes on Election Night in order to still be ahead at the finish line of official certification.

This asymmetry may have reverberations. The conventional wisdom among recount lawyers is that the rules that govern the resolution of electoral disputes is one area in which Democrats and Republicans cannot predict ahead of time which rules they would prefer. Rather, the candidate who is ahead will always prefer rules that make it more likely to stay ahead, and the candidate who is behind will always prefer rules that make it more likely to pull ahead—and Democratic and Republican candidates will have whatever preferences make sense depending on whether in any given election they happened to be ahead or behind. (The dispute over Minnesota’s 2008 U.S. Senate election, between eventual winner Al Franken and the previous incumbent Norm Coleman, is a good example of this observation.) This agnosticism of which rules to prefer ex ante, before knowing whether one is ahead or behind, is what has led some to believe that the resolution of vote-counting disputes might be one area of election law where it is relatively easier to develop a bipartisan consensus on appropriate rules ex ante. But perhaps this assessment is potentially challenged by the asymmetry in this year’s numbers concerning the uniformly Democratic gains in swing states between initial returns and official certification. If the canvassing process always helps Democratic presidential candidates in swing states, would that dynamic cause there to develop strategically partisan preferences about what rules should govern the canvassing process?

It is premature to attempt to address this conjecture. As indicated earlier, we do not know yet why the process from Election Night to official certification has this apparently asymmetrical effect, either in Ohio or elsewhere—and we don’t yet know why it is growing in Ohio. Thus, more study needs to be done to figure out what is going on, and how potentially to address it.

In the meantime, however, one thing does seem to be somewhat clear: Ohio, being the outlier in these numbers, ought to have high on its own agenda an examination of potential ways it can bring itself more in line with other presidential swing states.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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