The State of Play

Southern Exposure

George W. Bush won Ohio by 136,483 votes, a solid enough margin that Senator John Kerry and all but a handful of Democratic partisans felt compelled to concede defeat. The armies of Democratic and Republican lawyers that had been preparing for a fight over the status of every last provisional ballot demobilized.

Americans have been spared another months-long ordeal of post-election partisan warfare similar what happened in Florida in 2000, but election law experts say ambiguous rules on how provisional ballots are issued and counted could still create chaos if they aren’t resolved before the next federal election.

“We came much too close for comfort this time around,” wrote Loyola University law professor Richard L. Hasen Nov. 4 on “If the Ohio margin had been 36,000 votes instead of around 136,000 (a small difference in percentage terms), we would have seen a battle royal over the 130,000 + provisional and absentee ballots that were yet to be processed and counted in the next week and a half.”

The actual number of provisional ballots issued in Ohio was 155,428, according to the Secretary of State J. Kenneth Blackwell’s office. Many Kerry supporters believed the campaign should have waited for the provisional ballots to be counted before the senator conceded the race. Democrats have often argued that people forced to vote by provisional ballot are likely to favor Democratic candidates, but for Kerry to erase Bush’s margin of victory, he would have to received 88 percent of the votes by provisional ballot in Ohio. That doesn’t even take into account the number of provisional ballots that will be disqualified because votes were cast in the wrong precinct or because election officials will be unable to verify voters’ eligibility.

It’s certainly true that the highest number of provisional ballots in Ohio were issued in Cleveland’s Cuyahoga County, where Kerry voters outnumbered Bush voters two to one. But the counties where the second and third highest numbers of provisional ballots were cast were Hamilton and Franklin, where the vote was more evenly split: 53-47 in Bush’s favor in Hamilton and 54-46 in Kerry’s favor in Franklin. Provisional ballot numbers posted by the Secretary of State’s office also show that the use of provisional ballots in rural, white counties that went solidly for Bush was significant. In fact, if provisional ballots were apportioned to the candidates based on voting patterns for each county in the state, Kerry would only get about 51 percent, still leaving Bush with a comfortable 100,000 + vote lead in the final tally.

In a future election determined by a margin of hundreds of votes rather than hundreds of thousands of votes, the rules governing how provisional ballots are counted are likely to be hotly contested, election law experts say.

In last Tuesday’s contest, the tinder that might have ignited into a firestorm of litigation was Schering v. Blackwell. The plaintiff, a Cincinnati voter named Audrey Schering who was issued a provisional ballot on Election Day, claimed in a lawsuit filed in federal court that Secretary of State Blackwell failed in his duty to provide consistent direction to county election boards on how to count provisional ballots. Schering contends that the ambiguity of Directive 2004-48, issued by Blackwell on Oct. 29, violates the equal protection guarantee of the Constitution by failing to provide uniform guidelines as required by the U.S. Supreme Court’s Bush v. Gore decision.

“Certain procedures are pretty clear,” said Steven Huefner, associate professor of law at Ohio State University. “In the ten days after the elections, each of the county boards would have to determine whether voters who voted by provisional ballots were eligible. What was left unclear was things like, when a voter provides an affidavit that states they sent in a voter registration card 30 days before the election, how does the board resolve that?

“You could have voters who sent in a registration card, but the election board just never received it, or lost it,” he added. “For some of those things, the board of elections can find it after the fact, but we didn’t have clear uniform standards.”

The lawsuit asks the courts to force Blackwell to issue a new directive with more detailed standards and procedures, and ensure that the county election boards use the same rules to count provisional ballots. The lawsuit also includes a request that the courts supervise the counting of provisional ballots if necessary ­ more likely to be relevant had the outcome of the election been contested.

A status conference was held for the Schering case on Nov. 3, but no further hearings have been scheduled, said an employee of the clerk’s office for the U.S. District Court in Cincinnati.

Another piece of uncharted territory in election law that might open the door to futre election litigation is the provision of the 2002 Help America Vote Act, or HAVA, requiring local election boards to inform voters of whether their provisional votes were counted or not. This is the first election since the law’s passage in which voters have been guaranteed the right of knowing whether their votes were counted.

“I can imagine voters arguing that they should have been counted,” Huefner said.

Another potentially explosive controversy affecting how provisional ballots are counted appears to have been defused, at least for now. The two major political parties waged fierce court battles in a half dozen states in the weeks preceding the election over whether provisional ballots cast outside of a voter’s home precinct should be counted.

Although 20 states allow provisional ballots to be cast anywhere in a voter’s county, the 6th U.S. Court of Appeals in Cincinnati overturned lower court orders to stop Ohio and Michigan’s top election officials from carrying out restrictive precinct-specific election laws. In the absence of specific language in HAVA outlining whether or not people must vote within their precincts in federal and statewide races, it appears that the doctrine of states’ rights is prevailing.

“I think it would be appropriate for Congress to bring greater clarity to it, but I don’t think they’ll do it,” Huefner said. “What Congress did when they passed the Help America Vote Act is they left it to the states to decide which voters are eligible to vote.”

Huefner thinks it’s unlikely that the Bush administration Department of Justice will play a significant role in bringing uniformity to the patchwork of state rules on where voters can cast provisional ballots. For progressives, civil rights advocates and Democratic-leaning activists who favor widening the electoral franchise, that may be for the best. In four court cases at which provisional balloting rules were at stake, Deputy Secretary of State R. Alexander Acosta expressed support in friend-of-the-court briefs and formal letters for the principle of restricting people from voting outside their precinct.

“At the end of the day, they don’t have much of a say,” Huefner said. “For most purposes, the Justice Department’s opining on precinct requirements was just that ­ an opinion.”

Ultimately, it wasn’t the Justice Department that frustrated efforts by Ohio and Michigan’s Democratic parties to allow provisional ballots to be counted anywhere in a voter’s city or township. It was the Oct. 26 decision by Judge Danny J. Boggs ­ who got his start in the 1970s as legal counsel for Kentucky Republican Gov. Louie Nunn and was appointed to the federal bench by President Reagan ­ that shut down the Democrats’ dream of open-precinct provisional voting.

JORDAN GREEN is an associate editor of Southern Exposure magazine and a frequent contributor to CounterPunch. This story originally appeared in Facing South, the online newsletter of Southern Exposure and the Institute for Southern Studies. Subscriptions are available for $21/year at

He can be reached at: