| Subject: Re: FW: Election Law: Is this Over? |
| From: Rick Hasen |
| Date: 11/3/2004, 9:03 AM |
| To: "Lowenstein, Daniel" <lowenstein@law.ucla.edu>, election-law@majordomo.lls.edu |
Howard Bashman has linked to news coverage of developments in Ohio here and here. The picture in Ohio is clearer than it was last night, when I put up my last post. It appears that the number of outstanding provisional ballots is about the same as the current vote difference (both around 135,000). As Dan Lowenstein notes on the election law listserv, it is hard to see this math adding up to a Kerry victory, even assuming he gets a strong majority of the provisional votes. So either there are more provisional ballots out there that are not reported by the Ohio Secretary of State or Democrats have some other theory about how to win Ohio. But it is hard to see ways to shift a vote difference of such a large magnitude.
There's a broader lesson here as well. Our system of election administration failed last night. It looks like we will avoid a Florida-style debacle, but not because things worked right; it is because the vote margin is not close enough for litigation. We need to make major changes to the way we conduct presidential elections in the United States, beginning with a national registration and voter identification process, and an end to our use of partisan election officials. (More on that here.)
There's a good chance that the Bush-Kerry story ends very soon. It would be a mistake if the national media turned their attention away from the serious problems with our election system until just before the 2008 election.
What do we mean by "over"? Bush is leading, by the latest counts I have seen, by about 136,000 votes in Ohio. Secretary of State Blackwell has figures from 78 of 88 counties showing 135,149 provisional ballots. You can find the county-by-county breakdown here:
http://election.sos.state.oh.us/ProvBallots.htm
The largest counties, Cuyahoga and Hamilton, are included. The Secretary of State has estimated a statewide total of 175,000 counties. I believe that estimate was before he had the figures from the 78 counties. In any event, it seems like a high estimate, if anything. In addition, there will be up to a few thousand additional overseas absentee ballots coming in, and these are likely to lean Republican.
Based on these numbers, it's hard to see how the result in Ohio can be anything but a Bush victory. One thing I find mysterious is, why are most of the media outlets still unwilling to call Iowa, New Mexico, and Ohio, when they have called the other states? Bush's lead in Ohio is vastly larger than Kerry's in Wisconsin. Kerry leads in Wisconsin by fewer than 14,000 votes. Are there no provisional ballots in Wisconsin? Bush's lead in New Mexico is over 11,000. That is a much bigger lead than Kerry's in Wisconsin proportionately, and almost as large absolutely. Iowa might be explained by the fact that there has been a breakdown there, but is that confined to one location? Anyway, supposedly 99% of the precincts have been counted and Bush has a lead of more than 13,000 votes in a state considerably smaller than Wisconsin. Why is that too close to call?
One last number: In Pennsylvania, Kerry leads Bush by 122,000 votes, a lead smaller than Bush's in Ohio. Pennsylvania was called for Kerry early on. Why? Are there no provisional ballots in Pennsylvania?
-- Daniel Lowenstein
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of Rick Hasen
Sent: Wed 11/3/2004 12:02 AM
To: election-law
Cc:
Subject: Re: Election Law: Is this Over?
No, This Is Not Over Just Yet.
Before trying to get a few hours sleep, some observations about where we are. In at least Ohio and in Iowa, and perhaps in some other states, the balloting is too close for a winner to be declared. With just a few percent of the vote to be counted in Ohio, Bush is in the lead by somewhere between 100,000 and 125,000 votes. (Iowa had some vote counting machine malfunctions, and other issues, which have led to a delay there in an exeedingly close race). But there are (according to various claims made on CNN) between 100,000 and 250,000 or more ballots to be counted in Ohio, including both provisional ballots and absentee ballots.
The chances that these provisional ballots can tip the balance is difficult to assess without more information about their total numbers as well as who cast these ballots. It may be, when we know more, that the margin would be simply too great for Kerry to make up.
Remember, HAVA guarantees a right to cast a provisional ballot and have it counted if the voter is eligible. Ohio has a process for counting these provisional ballots, but some of the procedures are open to question and, as the immediately prior post shows, open to litigation as well.
In the event that the results with provisional ballots (which the Ohio Sec. of State said on CNN won't be counted for 11 days) yield a much closer outcome, a recount is also possible. And, as I noted here <http://electionlawblog.org/archives/001521.html> , Ohio still has a number of punch card counties, making a recount messy. As that earlier post explains, Ohio uses a "two-corner" rule.
CNN is also reporting that Kerry legal teams will be going at least to Ohio and Iowa. Given the 11 day+ window for the counting of provisional ballots, and the speech by Sen. Edwards saying that the Democrats will fight to count every vote, I don't see how the election ends in fewer than 11+ days, unless the numbers from Ohio show that a provisional ballot count mathematically can't help Kerry.
-- Professor Rick Hasen Loyola Law School 919 South Albany Street Los Angeles, CA 90015-0019 (213)736-1466 - voice (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org