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Election Law @ Moritz

Election Law @ Moritz

Free & Fair

Ohio: Wednesday Morning, 3:00am

A recount in an Ohio congressional or statewide race remains conceivable but perhaps less likely than it appeared heading into Election Day. Based on unofficial returns posted on the websites for the Secretary of State and the Franklin County Board of Elections, it appears that in the election for Ohio’s 15th congressional district the incumbent Republican Deborah Pryce has a lead of 11,261 votes over challenger Mary Jo Kilroy, with 100% of precincts having reported. But, according to the Columbus Dispatch, there still remain approximately 20,000 absentee ballots to be counted, as well as an “unknown” number of provisional ballots. Although these numbers make an automatic recount unlikely (which requires that the margin of victory in a district race to be within one-half of one percent), a losing candidate is entitled to pursue an optional recount at the candidate's expense. Likewise, in the statewide race for Auditor, unofficial returns at the Secretary of State’s website show the Republican candidate leading by 78,131, or 2.24%, with 96.44% of precincts reporting. The Secretary of State also reports a statewide total of 86,330 absentee or provisional ballots that remained to be counted, but significantly those totals do not yet include figures from several of the state’s most populous counties, including Cuyahoga, Franklin, and Hamilton. The margin of victory necessary to trigger an automatic recount in a statewide race is even narrower than in a district race (one-fourth of one percent, rather than one-half of one percent), but again a requested recount remains an option for a candidate willing to pay for one. Moreover, in Ohio a losing candidate for a state office, but not a federal office, may pursue a judicial contest of the election.

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


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

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In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

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Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

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