Key State

Ohio Prepares for Close Election Amid Fears of Another Florida 2000 Mess

A close election could bring out the worst problems in the state, and create another Florida 2000 legal imbroglio, reports Eliza Shapiro.

Pablo Martinez Monsivais / AP Photo

Less than two weeks ahead of Election Day, only one thing seems clear amongst the constant noise about Big Bird, a nuclear Iran, and bayonets and horses: the presidency will hinge on how Ohio votes.

Ohioans seem to be taking their task seriously: 7.9 million residents are registered to vote, and more than 800,000 Ohioans have already cast their ballot for president, according to data released Tuesday by Ohio Secretary of State Jon Husted’s office. Ohio voters will have 246 hours to vote in person before Election Day and 750 hours to cast their absentee ballots; 1.6 million Ohioans have requested or cast an absentee ballot for the general election, and almost 6.9 million absentee ballot applications have been sent out.

Each ballot cast and hour of voting available in Ohio will be crucial in determining the presidency—now more than in any previous race, experts say. On Tuesday, whiz-kid election predictor Nate Silver wrote, “This year, all clichés about Ohio are true.”

“We’re the tipping point state,” agrees Dan Tokaji, a professor of election law at Ohio State University’s Moritz School of Law. “It is extremely unlikely that either candidate can win without winning Ohio.”

And so Ohio is hurriedly preparing its voting apparatus for the worst-case scenario: another Florida 2000. “It’s hard to imagine that anything could be as bad as Florida,” says Rick Hasen, the author of The Voting Wars: Florida 2000 to the Next Election Meltdown.

But if the election comes down to margin of 10,000 or fewer votes, Tokaji says, “all the warts in Ohio’s system will be revealed for all the world to see.”

Those who control Ohio’s voting are well aware of that pressure. Matthew McClellan, a spokesman for Husted, a Republican, told The Daily Beast that the Ohio secretary of state “has done a lot of preparation to ensure uniformity. Things are running smoothly.”

That wasn’t a foregone conclusion just a few months ago: Ohio has been the site of some of the most controversial voting laws this election cycle.

Three bills introduced in 2011 “would have severely constricted early voting” in the state, says Tokaji. Obama for America sued Ohio, claiming that limits on early voting—which is widely considered beneficial to Obama in the 2008 election—violated the Equal Protection Clause of the Constitution. The Sixth Circuit Court ruled in favor of Obama, and early voting has been restored across the state, including the Saturday, Sunday, and Monday before Election Day.

Ohio’s provisional ballot rules have been largely but not entirely resolved. In late August, a federal judge halted the state’s so-called right church, wrong pew law, which mandated that provisional votes mistakenly cast in the wrong precinct can be discounted. Husted initially announced plans to appeal the decision, but later decided to drop the case, announcing, “The time has come to set the issue aside for this election.”

News about the reversal of the early voting and provisional ballot laws came not a moment too soon, experts say. “The Ohio legislature made a mess of the state’s early voting laws. Secretary Husted has said it’s really easy to vote in Ohio,” Tokaji says, “but Republicans in Ohio have been trying to make it more difficult to vote but have been rebuffed by the courts.”

But Ohio may not be entirely out of the woods, Hasen says. If the race comes down to a razor-thin margin, he says, Ohio’s rules on provisional ballots “will become legal fodder for disputing the results.” Tokaji agrees that such a close race will mean a closer look at Ohio’s “absentee ballots and especially its provisional ballots.”

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“The closer the election is, the more visible the state’s problems become,” he says.

Ohio also “uses partisan election officials to run their elections,” Hasen points out, referring to Husted. “To anyone outside this country that would be quite odd.” It also may translate into more legal grounds for challenging the election results, he says.

With all eyes now focused on the Buckeye state, it remains to be seen how Ohio will fare if its voting system is put to the test in an extremely tight race. “We don’t know how it will hold up under stress until it’s put under that stress,” Hasen says.

For now, the top brass of Ohio voting are taking it one day at a time. “On Election Day we know the polls open at 6:30 a.m. and close at 7:30 p.m.,” says McClellan, Husted’s spokesman. “And we’ll go from there.”