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Election Law @ Moritz

Election Law @ Moritz

Free & Fair

What If . . .

It is hardly unrealistic to think that on Wednesday morning, November 7, Americans may wake up with the news media reporting that Ohio alone remains “too close to call” and that whichever candidate wins Ohio will cross the finish line of 270 or more Electoral College votes.

Therefore, it is useful to consider what might happen next—how events may unfold after the ballots are cast, so that Americans may judge whether or not the process works properly and leads to an outcome they can accept as correct or at least legitimate.

My crystal ball cannot predict exactly what will happen—there are too many variables and uncertainties—but it helps to begin by imagining one plausible scenario. Other possible scenarios might be considered as well, but this one illustrates the kinds of considerations that may come into play if neither candidate wins a decisive victory Election Night.

Suppose that Romney is ahead in Ohio by about 10,000 votes with 100% of precincts reporting, but there are about 150,000 provisional to review (a conservative estimate given the approximately 200,000 provisional ballots cast in Ohio in 2008). There might be pressure on Obama to concede, especially if Romney is also ahead in the national popular vote. One difference between this scenario and 2000 is that Gore was ahead in the national popular vote while he was fighting to come from behind in Florida. If winning the national popular vote is a kind of “moral victory” even though it is legally irrelevant, it can give a candidate a plausible basis for claiming that he owes it to the electorate to fight on in the still-undetermined “tipping point state” to see if he can achieve the legally controlling Electoral College victory as well as his national popular vote vindication. It is possible, however, that on November 7 Obama—unlike Gore—will be behind both in the national popular vote and the initially reported precinct returns in Ohio.

Still, the way we elect presidents is through the Electoral College, and in this hypothetical scenario Obama could see an Electoral College victory within reach even while being behind in Ohio by 10,000 votes with 100% of precincts reporting. In 2008, Ohio counted about 75% of the roughly 200,000 provisional ballots cast that year. Even if that rate drops to two-thirds this year, it would mean that 100,000 of the 150,000 hypothetically cast would be counted. If Obama “wins” those provisional ballots at a rate of 55% to 45%—a not implausible possibility, if many of those provisional ballots are cast in urban or college precincts (as historically has been true)—then he could see himself erasing a 10,000-vote deficit once the provisional ballots are counted.

Now, I’m not a huge fan of the Electoral College. I find powerful the arguments in favor of replacing the Electoral College with some sort of system that makes the winner the candidate with the most popular votes nationwide. But that would be a reform for the future. As long as we continue to use the Electoral College as our constitutional mechanism for choosing a president, then it seems to me that Obama would be justified in insisting that the nation wait until the process of reviewing provisional ballots in Ohio is complete before either candidate is in a position to make a concession speech. This point, moreover, seems valid even if Obama is behind in the national popular vote while the process of verifying and counting Ohio’s provisional ballots remains underway.

I make this point not to advocate on behalf of any particular campaign or candidate, but as an observer attempting to anticipate before November 6 what might occur afterwards. The same point would apply if on the morning of November 7 Obama is narrowly ahead in Ohio based on initial precinct returns and also leads in the national popular vote. Romney might have a reasonable chance of overcoming Obama’s narrow lead in Ohio based on the possibility that absentee ballots, if mailed on time under Ohio law, may still arrive up to November 16 and still be counted. In this alternative situation, Romney would also be justified in holding out hope of an Electoral College victory and thus waiting until November 16—after all the eligible absentee ballots have arrived and been counted—before deciding whether he or his opponent is the one who needs to deliver a concession speech. (To be technical, under Ohio law the wait for a final count that includes all eligible absentee ballots, as well as verified provisional ballots, would last at least one more day, until November 17, since local boards of elections are not permitted to begin the official canvass of returns before then, one day after the deadline for absentee ballots to arrive.)

There is another point to make about provisional ballots, one which distinguishes this year from 2000. By design, provisional ballots take extra time to count. They are not supposed to be counted on Election Night. Instead, their provisional nature means they need to be evaluated. Indeed, depending on the reason why they were cast as provisional rather than regular ballots, the voters who cast these ballots have a window of opportunity to supply information that shows that their votes are eligible to be counted. For example, if the reason that a particular voter cast a provisional ballot was that this voter did not come to the polling place with the required form of identification, Ohio law gives the voter 10 days—until Friday, November 16—to produce a valid form of ID (which could be a bank statement or utility bill and need not be a photo ID).

Thus, an electoral system that includes provisional voting necessarily commits itself to the possibility of needing to wait until the process of evaluating all the provisional ballots is over before being able to announce the winner of the election. Valid provisional ballots, once verified, count just the same as regular ballots counted on Election Night. Consequently, when a close election potentially turns on the provisional ballots that have yet to be evaluated, the system demands patience sufficient to wait for the completion of the process for evaluating those provisional ballots. It would contradict the basic democratic principle of one-person-one-vote (which applies to Ohio’s electorate in voting for presidential electors even though it does not apply to the Electoral College as a whole) to short-circuit that process and declare a winner before the potentially outcome-determinative provisional ballots have been evaluated and counted.

In this significant respect, the current electoral system is different from the one that the nation used in 2000. Indeed, provisional ballots were mandated by Congress after 2000 as part of the response to the problem of erroneous voter purges that occurred in Florida that year. Therefore, the protracted litigation over so-called “hanging chads” that went all the way to the U.S. Supreme Court in Bush v. Gore had a very different character than simply waiting for all the provisional ballots to be evaluated, as would be necessary in the hypothetical scenario I am describing here.

The “hanging chads” were regular ballots that had been counted, or at least processed, by Florida’s vote-counting machines on Election Day in 2000. Therefore, when Gore pressed for a recount, he was attempting to get a second tabulation of ballots that already had been tabulated once. Indeed, Florida’s ballots were fed through the machines a second time shortly after Election Day. Therefore, when Gore persisted in seeking a manual recount of those same ballots, he was asking for yet a third tabulation of ballots that had already been tabulated twice. Indeed, many of us can remember James Baker claiming on behalf of Bush that after the machine recount it was time for Gore to concede since the ballots had been counted twice.

By contrast, in the scenario I am imagining, during the ten days between November 6 and November 16, the potentially outcome-determinative provisional ballots would not yet have been counted once. Therefore, if Obama were to insist on waiting for a completion of the provisional ballot review process in Ohio, he would not be seeking a “do over” of the initial count, whereas Gore sought a “do over” throughout the long 35-day fight over the hanging chads in Florida.

I know that Americans will want to know who won the presidential election when they tune in to watch the returns on the night of November 6. Particularly because this campaign has seemed so long and hard fought, many Americans will desperately want the race to be over. The idea of prolonging it yet another 10 days, just to wait for the process of evaluating Ohio’s provisional ballots, would seem like agony. (Indeed, as mentioned previously, Americans would need to wait at least one day more—until November 17—for the certified count of the provisional ballots to be announced, according to Ohio law, as part of the official canvass of returns.)

Still, it is important for Americans to understand that provisional ballots are part of the “new normal” in post-2000 elections, and it will be important for the news media to educate Americans that there is nothing inherently wrong if it is necessary to wait 10 days for the evaluation of provisional ballots to be completed. In fact, exactly the opposite is true: waiting 10 days means that the system is working precisely as it is designed to work; the 10-day delay is a built-in feature of the new system.

What would be wrong would be for the media to use the word “recount” to apply to this 10-day period. We would not be in a “recount” situation—and indeed under Ohio law a recount cannot start until the process of evaluating all the provisional ballots is complete (as the state learned from a close congressional race in 2008). We would simply be waiting for the completion of the initial count of ballots cast by all voters entitled to participate in the election. I would hope that, with the media’s help, the public would understand that this wait, however frustrating, would be necessary in order to make the state’s electoral process qualify as democratic. Otherwise, it would be like declaring a winner in a close race when there were still enough precincts left to report that could affect the outcome, or not waiting to count absentee ballots that arrived on time under the law but too late to be included in Election Night returns.

Two further points are worth considering as we contemplate this hypothetical scenario.

First, it is conceivable that Ohio’s legislature might attempt to short-circuit the process of evaluating the state’s provisional ballots. Both houses of the state’s legislature have Republican majorities, and the state’s governor is a Republican. Therefore, reminiscent of what was contemplated by Florida’s legislature in 2000, in this hypothetical scenario Ohio’s legislature might attempt to invoke its authority under Article Two of the U.S. Constitution to appoint the state’s presidential electors directly. But it seems to me that Ohioans would not tolerate the legislature’s taking the power to appoint the state’s presidential electors away from the voters, at least not during the ten-day period between November 6 and November 16 when not all the state’s valid popular votes have yet been counted. It might be a different situation later in the process, if a fight over provisional ballots ends up in protracted litigation, and the judiciary seems unable to handle the dispute fairly. The argument for the legislature coming in to settle the matter definitively would seem more plausible in that later situation. But when the process of verifying provisional ballots is proceeding normally, in accordance with the design of the system, it would seem entirely undemocratic for the state’s legislature to step in to stop that normal ballot-counting process.

Second, there is a variation on this hypothetical scenario that would increase the pressure on Obama to concede before the provisional ballots have been counted. Suppose that everything about the hypothetical is the same except that for Obama winning Ohio would mean, not reaching 270 Electoral Votes, but only a 269-269 Electoral College tie with Romney. This twist is also not implausible, as anyone who has played around with an Electoral College calculator knows. Assuming that the Republicans continue to hold the House of Representatives with numbers roughly comparable to now (a realistic assumption if the presidential race is close enough to result in an Electoral College tie), then Republicans in the House would be in a position to elect Romney president pursuant to their authority under the Twelfth Amendment of the Constitution. If Romney also holds a lead in the national popular vote, that “moral victory” would give the House Republicans a principled (as distinct from a partisan) reason to choose Romney over Obama. Consequently, if Obama is behind by 10,000 votes in Ohio, and hoping for provisional ballots only to get him to a 269-269 tie, he would lack a compelling reason to fight on. Instead, in this specific context, it would be a magnanimous gesture for Obama to acknowledge that Romney deserves to be elected president by the House based on his national popular vote victory. This gesture, which would permit Romney to get on with the task of a presidential transition—and deal with the looming fiscal cliff in as responsible a manner as feasible—would help secure Obama’s legacy in the history books.

Thus, the possibility of a 269-269 tie shows that not every Election Night uncertainty calls for postponing a concession speech until completion of the official count of all provisional ballots. In 2004, too, Kerry thought about waiting for a count of Ohio’s provisional ballots, but in his particular situation the numbers he faced on the morning after Election Day did not make an Electoral College victory possible. Likewise, Obama may face a situation in which he needs to make a judgment of whether there are enough provisional ballots to overcome a narrow lead that Romney holds in Election Night returns. The math might not work for him any more than it did for Kerry, and he may be sensitive to the potential public sentiment that an incumbent president should not appear to cling too long or too hard to staying in office when the overall message of the national electorate is that it is time for him to leave.

There are also other points concerning the evaluation and counting of provisional ballots that one might contemplate. I, for one, am concerned about litigation that attempts to extend the 10-day deadline under Ohio law for this evaluation process. Extending this deadline through litigation runs the risk of bumping up against the Electoral College calendar, which requires the presidential electors themselves to meet on Monday, December 17 (and which also makes the so-called Safe Harbor Deadline six days earlier: Tuesday, December 11). But I leave this and other issues for another day. (There are also potential issues surrounding the counting of absentee ballots that might arise after Election Day, but I leave those aside as well—apart from the passing analogies I have made to absentee ballots while considering the less familiar topic of provisional ballots.)

Here it is enough to say that the uncertainty caused by the existence of provisional ballots, by itself, does not mean that there is anything wrong with the electoral process. Instead, it is simply a sign that the process is working as intended in a very close election. Therefore, if Ohio would give one of the candidates an Electoral College majority of 270 or more (not the 269-269 tie), and if figuring out which candidate won Ohio requires waiting for the evaluating of provisional ballots, then wait the nation must—as patiently as possible.

As a nation, we may well wish to change the system after we are finished with it this year and, with hindsight, we contemplate its flaws. But once we have cast ballots in accordance with the system, we owe it to the voters whose valid ballots may determine which candidate wins the “tipping point state” that determines an Electoral College majority to actually count these valid ballots. Not doing so would seem to make the electoral system not merely flawed but something of a hoax.

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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