The prospect of election chaos in Ohio is growing. Which presidential candidate is credited with Ohio's Electoral College votes could well drag into December. And if Ohio's 18 electoral votes were to determine who gets a majority, fraud-prone battles may keep the presidential election outcome in limbo for weeks.
As reported here earlier, the counting of Ohio's provisional ballots is a crucial element of the chaos scenario. Ohio media report that the state historically has one of the highest rates of provisional ballots cast. And in a close election — which this is expected to be — they can be decisive. Under state law, officials have 10 days after the election to examine provisional ballots to determine their validity. And then they have to be counted by Nov. 27. But Ohio State University law professor Ned Foley said the 10-day deadline could be challenged. "Even though the law says it's a 10-day process, one candidate or the other might go to court to extend that deadline or argue an equal protection violation under the Constitution," Foley told NBC4i-TV in Columbus.
Intending to do so or not, Republican Secretary of State Jon Husted added to the likelihood of increasing the number of provisional ballots, when he this year sent out applications for absentee ballots to every registered voter in the state. Until this year, people who wanted absentee ballots, had to initiate the request. In 2008, about 40% of the the 207,000-plus provisional ballots were declared invalid.
Aside from other prospective court challenges, a Federal appeals court ruling is expected sometime this week in a case about counting provisional ballots. Last Friday, Husted appealed a decision by U.S. District Judge Algenon Marbley that said provisional ballots cast not just in the wrong precinct, but in the wrong polling location altogether, must still be counted. An earlier ruling concluded that provisional ballots cast at the right polling place but in the wrong precinct must also be counted.
Secretary Husted had opposed the expansion, saying it could create "Election Day chaos" because of new training requirements for poll workers.
Professor Foley said Ohio law allows poll workers broad discretion to issue provisional ballots. Voters may be given provisional ballots for any number of reasons: Their name doesn't appear on the poll list, their signature doesn't match the signature on the registration form, or they lack valid identification. Then there's the Husted factor: A voter who requests an absentee ballot but doesn't use it and instead shows up at the polls will be given a provisional ballot. Some 1.4 million voters have requested absentee ballots, according to the latest figures from the Ohio Secretary of State's office, issued Oct. 19. As of then, about 808,000 had been returned. A spokesman for the office said Tuesday that updated numbers will be issued "shortly".