As President Bush leads in both the popular vote and the Electoral College vote, a potential legal showdown loomed in Ohio that could decide the electionpossibly in another overtime election court fight.
With Ohio's crucial 20 Electoral College votes at stake, the dispute is over uncounted provisional ballots, and their final tally in Ohio may not be known for several weeks. Provisional ballots are essentially backup ballots cast by voters whose eligibility was uncertain on Election Day. They are separated from regular ballots and counted only after a voter's eligibility is verified.
Bush was leading in Ohio by 51 to 49 percent and a margin of 140,000 votes. Ohio Secretary of State J. Kenneth Blackwell, a Republican, estimated that there could be as many as 175,000 provisional ballots by the time all of Ohio's 88 counties complete their tallies. Democrats have said there are as many as 250,000 provisional ballots. Under state law, these ballots cannot be counted for 11 days. Experts believe provisional ballots tend to favor Democrats.
Sen. John F. Kerry's running mate, Sen. John Edwards of North Carolina, had appeared at Boston's Copley Plaza, pledging that "every vote would be counted. Tonight we are keeping our word and we will fight for every vote. You deserve no less." Some legal experts believe that it's hard to imagine the Kerry campaign not fighting to count the provisional ballots, especially with memories of the bitter 2000 legal fight and with an asssembled team of some 10,000 lawyers.
"My guess is that if Kerry runs the numbers and realizes he is unlikely to win, he will concede," says Harvard election-law professor Heather Gerken. "But if he thinks there is a chance of winning, we can expect teams of lawyers counting provisional ballots. Still, they don't want to look like the whiny party."
Are there enough provisional ballots to sway Ohio's count the election for Kerry? "It's possible but highly improbable," says Steven Huefner, an election-law professor at Ohio State University. "What certainly is going to happen is that the provisional ballots will be reviewed and those who are eligible to be counted will be put in a pile. Then, 11 days after the election, the boards will begin counting them." Ohio's Blackwell instructed the boards to begin reviewing the provisional ballots on Thursday. They then will use the 10-day period to determine which ones are eligible for counting.
Some of the potential legal challenges could center on disputes about which provisional ballots should be counted and about inconsistent rules from precinct to precinct about counting the provisional ballots. Blackwell's office has not provided much guidance on the standards and process for determining eligibility requirements. It appears that disputes over whether provisional ballots will be counted are to be resolved by county boards of elections. Those are four-member boards split evenly between the parties. Ohio rules say that three members of a board must agree for the provisional ballots to be counted. A lawyer for Ohio's GOP already filed a federal lawsuit in Cincinnati asking for uniform standards in counting provisional ballots. In 2000, the U.S. Supreme Court ruled that constitutional rights had been violated when counties in Florida counted votes differently.
"What all this means is that, if the number of uncounted provisional ballots is sufficiently large to make a difference in Ohio's election, then disputes on whether provisional ballots should be counted are likely to be fought out before county boards of elections," Daniel Tokaji, an election-law professor at Ohio State University, has said. "How exactly the boards will go about making determinations about whether and how to count provisional ballots remains to be seen."
Ohio had provisional voting in 2000, and 91 percent of the state's 98,000 provisional ballots were verified and counted. Before this year's election, experts were predicting that the number of provisional ballots cast in the Buckeye State could double.