As if Ohio hasn't been the focus of enough sweaty speculation, try this for an Election Night what-if: The state's 18 electoral votes are needed to declare Barack Obama or Mitt Romney a winner. But with all precincts reporting and the race too close to call, local election boards are swamped by an unprecedented number of provisional ballots that won't be counted for at least ten days.
The "nightmare scenario," outlined Thursday by The Cincinnati Enquirer, is a possible consequence of the state's decision to send absentee ballot applications to nearly 7 million registered voters. Before this year, Ohio residents had to ask for an application, and Secretary of State Jon Husted said his intent was to make voting easier. As of last Friday, about 1.4 million voters had responded with requests for ballots. So far, a little under 620,000 have returned them. What many of the remaining 800,000 or so may not realize is that if they change their minds and come to the polls on Election Day, they will have to cast a provisional ballot, meaning that their vote won't count until the election board determines that they didn't already vote absentee.
Ohio law provides a ten-day period for officials to evaluate each provisional ballot to see if it should be counted, taking into consideration any new information provided by voters. In 2008, about 207,000 provisional votes were cast in Ohio. But Obama defeated John McCain by more than 200,000 votes, so the provisional ballots were not decisive. Same with 2004, when John Kerry trailed George W. Bush by 120,000 votes with approximately 150,000 provisional ballots cast -- not enough to put the race within what election lawyers call "the margin of litigation."
But 2012 could be a different story, perhaps closer to 1976, when Jimmy Carter pulled the state out by just 11,116 votes over Gerald Ford. With a tight race and a spike in provisional voters that could extend into the tens of thousands, Americans could be shopping for Thanksgiving dinner before they know who won.
The situation could also deepen the debate surrounding the use of provisional ballots. Devised to protect voters from being unfairly turned away at the polls, they've been a flash point in Ohio and other key states on the electoral map, with critics charging that they are used to disqualify minorities. Voters without acceptable identification, who are not on the precinct list, or have an address that can't be confirmed are often forced to vote provisionally Ohio produces more provisional ballots than virtually any state outside of California, and invalidated about 20 percent of those cast in 2008.
Edward Foley, an elections scholar and professor at the Ohio State University Moritz College of Law said the provisionals could produce an extraordinary situation. Writing this week for the school's website Election Law @ Moritz, he outlined a scenario that had Romney ahead in Ohio by about 10,000 votes with 100 percent of precincts counted. But 150,000 provisional ballots were pending review -- a conservative estimate given the 200,000 provisionals in 2008.
"There might be pressure on Obama to concede, especially if Romney is also ahead in the national popular vote," Foley wrote. This would be a different situation than in 2000, when Al Gore was ahead in the popular vote as he struggled to capture Florida.
But, if Obama carried the provisional ballots at a rate of 55 percent to 45 percent -- not an outlandish assumption given that many provisionals come from urban or college precincts -- he could ultimately prevail, Foley wrote.
Husted's spokesman, Matt McClellan, discounted the dire forecasts Thursday, and said officials expect the number of unused absentee ballots to drop dramatically between now and Election Day. Voters have until Nov. 5 to mail the ballots, and can take them to their county Board of Elections office or other county-designated locations.* In 2008, 1.81 million absentee ballots were requested and 1.74 million cast, a spread of less than 100,000.
"There is no nightmare scenario," McClellan said. "We have rules in place that have been in place for several years, including last presidential election, that we will administer."
* This post originally stated that absentee ballots could be handed in at polling places on Nov. 6th. It has been corrected.