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:
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.
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.”
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.”