The battles could be over the rules for a recount, or how to deal with voters who were not added to the rolls even though they registered properly and on time. Lawyers could fight over how to count the paper ballots used when the electronic machines break down, or whether a judge was correct in deciding to keep certain polls open late.
But the most likely source of litigation is the state’s heavy use of provisional ballots, which are issued when a voter’s identity or registration cannot immediately be verified or when polls stay open late. Ohio has a history of requiring large numbers of voters to use these ballots, which are easy to disqualify and are not counted until after the election.
“Provisional ballots are really the Achilles’ heel of our electoral process, because in a close race that is the pressure point lawyers use to try to undo the results,” said Edward B. Foley, a law professor at Ohio State University who is one of the nation’s foremost experts on voting litigation. “The larger the number of provisional ballots cast in a state, the more vulnerable the Achilles’ heel, and Ohio has for a couple of elections used more of these ballots than most any other state.”
In 2004 and 2006, Ohio, unlike most other states, increased the percentage of provisional ballots used by voters. In the 2004 presidential election, which hinged on Ohio, the margin between the candidates was about 118,000 votes, of 5.7 million cast. Of those, more than 158,000 were provisional ballots.
Even more of these ballots will be cast in Ohio on Nov. 4, voting experts predict, because many newly registered voters may bring the wrong form of identification to the polls, failing to comply with the state’s new voter law that requires all voters to show government-issued identification or an approved document with a voter’s name and address. Others may go to the wrong polling place, or show up at the polls only to find that they are not listed on the state’s new computerized voter registration list, which has already been the subject of intense partisan wrangling.