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Provisional Ballots In Ohio Could Send Presidential Election To The Courts

Political analysts have long viewed Ohio as the linchpin state that would determine the outcome of the presidential election.

Only it could prove true in the courts rather than at the ballot box.

The heavy saturation of provisional ballots and the state’s maze of archaic rules and regulations determining their validation lends itself to a bitter court challenge if the count is close, meaning that the winner of Ohio’s critical 18 electoral votes and our next president might not be known until December.

Election officials and election law experts are praying for a result in The Buckeye State that Daniel P. Tokaji, a law professor at Ohio State University, described as “outside the margin of litigation.”

What sets Ohio apart is the large number of provisional ballots – those that election officials could not verify on Election Day for any number of reasons such as a new voter address, a failure to provide proper identification, a failure to appear in the state’s computerized voter registry or voting request from those who had requested an absentee ballot, only to turn up at the polls on Election Day. Under federal law, voters whose eligibility cannot be verified at the polling place must be allowed to cast at least a provisional ballot and those ballots must be counted if election officials later confirm that the voter is legitimate.

“We’re expecting 200,000 or more provisional ballots – that’s more than New York or California – and that means that an election is contestable here with a margin in the low tens of thousands of votes,” Tokaji said.

Voting rights groups and the Service Employees International Union have complained that Ohio’s Republican Secretary of State, Jon Husted, has set voter identification rules for provisional ballots that are overly strict and violate the law. Husted said that his directive is consistent with the law and past practice in Ohio. A federal judge on Monday set a hearing for Wednesday on the dispute so that it can be resolved before counting of provisional ballots begins.

Ohio does not begin to tally provisional ballots and ballots from overseas and military voters until Nov. 17. During this 10-day period, voters can provide documentation to establish their eligibility, but election officials cannot open or count absentee or provisional ballots. In 2008, 80 percent of those votes ended up being accepted as legitimate, and they tended to slightly favor the Democratic candidate, Tokaji said.

Ohio counties then have an additional 10 days to conduct an official canvass of the vote. If at the end of that period the two candidates are within 0.25 percent of the overall vote total, an automatic recount is triggered. State officials expect about 5.7 million votes to be cast in the presidential election, meaning that if the margin is 14,250 votes or fewer, a statewide recount is required. Under state law, that cannot begin until Dec. 2 and must end by Dec. 11, six days before the state must qualify its representatives to the Electoral College. While much of the focus is on Ohio, the result could also come down to several other highly contested states, each with its own set of rules for counting or recounting votes.

Although litigation could delay any recount, as it did in Florida in 2000, most require the process to be completed more quickly than it is done in Ohio. Florida, for example, must finish any recount within 12 days of the general election.

Things have already begun to get contentious as so much rides on the election’s outcome. A lawsuit filed Monday alleges that Husted and Election Systems & Software, an Omaha, Neb., company that makes electronic voting systems used in the state, improperly approved the use of untested, non-state certified software in voting machines to help tally results.

The suit claims that the software could erroneously alter election results or even lead to election fraud. According to the complaint, the suit alleges that the software could introduce mistakes into the vote count, or allow third parties to manipulate the results.

U.S. District Court Judge Greg Frost said he would issue a ruling while Ohio polls were still open Tuesday.

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