Could the
presidential race go into overtime?
It turns out the
unnerving prospect of an election that drags on for days — or even weeks — past
Election Day isn’t as far-fetched as it sounds.
Between the
possibility of recounts, provisional ballot problems and lawsuits, there’s no
shortage of scary vote-counting scenarios that threaten to push the election
outcome beyond Nov. 6.
Most of the
scenarios, of course, are contingent on a tight race where the result comes down
to one, or just a few highly competitive states. And that’s exactly the election
the polls are suggesting.
Here’s how
America could wake up Wednesday and not have a clue as to who will be the next
president:
Recounts
The rules and
thresholds differ from state to state, but if the difference between President
Barack Obama and Mitt Romney is 0.5 percent in any one of them, that tends to be
recount territory.
It’s a minuscule
figure, which is why there are so few actual statewide recounts. But Virginia,
according to its RealClearPolitics polling average, is within currently within
its recount window, and Florida is just a one percentage point outside its
own.
Colorado and
Florida laws provide for an automatic recount trigger of 0.5 percent — in the
case of Colorado, 0.5 percent of the winner’s vote total rather than the overall
vote total.
Virginia has no
automatic trigger and instead allows a petition from the losing candidate if the
margin is 1 percent or less. Colorado also permits candidates to request a
recount. The deadline there for finishing an automatic recount is 30 days after
the election; a requested recount, 37 days, according to Lawrence Norden of the
Brennan Center for Justice at the New York University School of Law, who wrote a
brief on the issue Friday.
In Wisconsin,
Obama or Romney could ask for a recount regardless of the margin. The last time
a statewide recount happened there, in a 2011 state supreme court race, the
recount took more than four weeks.
Keep in mind
that in some states there’s no recount threshold at all — a candidate just needs
to request one and, in some cases, pay for it.
“It is no
exaggeration to say that these [state recount laws] could determine who is
elected president in 2012,” Nordon wrote.
Provisional
and absentee ballots
The murky world
of provisional ballots is where it gets really scary.
Under the George
W. Bush-era Help America Vote Act, those are ballots cast by voters whose
eligibility is in question on Election Day. Later, officials determine
eligibility and count those votes, along with absentee
ballots.
“If it comes
down to Ohio we’re not even talking about a recount, we’re looking at a delay of
a couple weeks if it’s potentially very close because there are going to be a
whole lot of provisional ballots,” said Rick Hasen, a law and political science
professor at the University of California-Irvine and the author of “The Voting
Wars.”
How many is a
lot? In 2008, Ohio voters cast more than 204,000 provisional ballots — some 19
percent of which got rejected later. A smaller portion of its absentee ballots,
1.6 percent, also got rejected.
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As far as timing
goes, Ohio cannot count its provisional ballots until Nov. 17 and must wrap up
by Nov. 27.
This year, “in a
closely-contested election, the legitimacy of such ballots would almost
certainly become a subject of dispute between the parties,” Norden
wrote.
Nine of the 10
battleground states Norden surveyed — New Hampshire is the exception — have
provisional voting.
The provisional
ballot issue has already flared up at the presidential level in recent
years.
In 2004,
Democrat John Kerry did not concede until the day after the election after
briefly holding out hope that provisional ballots could close his deficit in
Ohio. His campaign ultimately concluded that it wouldn’t be enough to alter the
outcome.
Four year later,
provisional and absentee ballot counting held up held up Missouri’s result for
weeks — but it largely went under the radar since Republican John McCain’s
ultimate victory wouldn’t have changed the outcome of the Electoral
College.
“I call it the
new normal because we have this new world of provisional voting in light of the
Help America Vote Act,” said Edward Foley, director of Ohio State’s Moritz
College of Law election program.
“If you combine
the concept of a very competitive election that’s working properly, and your
provisional voting system, you build that into the electoral process, it’s
inevitable you’re going to get elections that depend on provisional ballots to
know the outcome,” Foley said. “That’s not a sign of a system going wrong. It’s
a sign of the system working as intended, as built.”
Lawsuits
If recounts or
provisional ballots aren’t worrisome enough, consider the prospect of lawsuits,
especially in a year that’s been rife with voting-access
concerns.
“If litigation
doesn’t kind of take over and have a life of its own, you can imagine not
knowing the answer for a week or two,” Foley said. “If they keep fighting after
certification, all bets are off until you get to the December deadline set by
federal law.”
A legal skirmish
has already occurred in Florida over the early voting deadline, and in Ohio, a
judge set a hearing for Wednesday amid questions about provisional ballot
counting procedures.
Lawyers for both
campaigns are already virtually sitting on the tarmac, coiled and ready to
respond in the event of another Bush-Gore Florida 2000
standoff.
Foley said
there’s an important distinction to make between “the provisional ballot,
absentee process working as planned and designed, as expected, in the aftermath
that’s starting on Nov. 7 compared to that whole process going awry because of
lawsuits flying all over the place, and deadlines not being met and people
debating what the proper vote counting rules are.”
“That’s where
you have a real problem. That’s a problem. That’s not the system working
appropriately.”
ARA/HJ
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