This Time, Ohio Takes On Role of Florida

Ohio emerged early today as the pivotal state of the 2004 presidential race, with tens of thousands of uncounted ballots potentially holding the key to who wins the White House.

In a race with eerie overtones of the disputed election four years ago, Ohio was poised to assume Florida’s role this time around -- the subject of supercharged legal wrangling and perhaps days or weeks of confusion over the final count.

This time, however, the battle was not over hanging chads or voting irregularities, but what are known as “provisional ballots.”

Such ballots arise from questions over the legal eligibility of the people who showed up to cast them, and state rules require that elections officials hold them for at least 10 days before investigating whether the voters were properly certified.

President Bush was leading in Ohio as of early today by more than 140,000 votes with 99% of precincts reporting, and with its 20 electoral votes he would win reelection. But at least 150,000 provisional ballots, as well as some absentee ballots and votes cast by state residents living in other countries, had yet to be counted.

This year’s potential post-election confrontation would also take place against a different backdrop than four years ago. Then, Vice President Al Gore led Texas Gov. George W. Bush in the nationwide popular vote by about half a million votes, while this year Bush held a lead early this morning of more than 3 million votes.

Republicans, led by Ohio’s two GOP senators, quickly began to apply pressure on Sen. John F. Kerry to concede the state and thus the presidency. Sens. Mike DeWine and George Voinovich said their experience in the state’s politics told them “that the president’s lead in Ohio is clear and that it cannot be surmounted.”

But Kerry’s campaign was holding out hope that the provisional ballots would win him the state -- and could give him the presidency, depending on the outcome in a handful of other closely contested states.

Bush’s lead in Ohio was large enough that the odds appeared against the Kerry scenario for victory. To win Ohio, Kerry would have to rack up a huge margin among the uncounted ballots.

Ohio Secretary of State J. Kenneth Blackwell said that as many as 150,000 of the more than 5 million ballots cast here Tuesday were provisional, and some elections officials put the number at more than 200,000.

Asked whether his state might be this year’s Florida, Blackwell told CBS News’ Dan Rather early today, “As long as you don’t mean that in a pejorative sense.”

Blackwell promised “an honest, solid count that reflects the will of the people.”

About 98,000 provisional ballots were cast in the 2000 presidential election here -- with roughly 90% of them ultimately determined to be properly cast. But they did not play a role in the outcome because Bush’s margin over then-Vice President Al Gore was higher than that total: Bush got 2,351,209 votes and Gore 2,186,190.

Elections officials said early Wednesday that most provisional ballots were concentrated in the state’s three largest cities, where Democrats usually perform strongly.

In Ohio, provisional ballots can be cast in a variety of situations in which a question arises about a voter’s status at the polls.

Frequently, it happens when someone has moved and is not on the rolls at the polling place where he or she shows up to vote. Local election officials are directed to find out what the correct polling place is for an individual, and send the person there.

Mark Weaver, the chief Republican attorney in Ohio, said he believed Bush had prevailed in the Buckeye State. However, he added that it appeared that the president’s margin of victory would be less than the number of provisional ballots cast -- which could mean that the result would not be certified for at least 10 days.

Professor Rick Hasen of Loyola Law School emphasized that the Help America Vote Act, passed after the 2000 vote difficulties, “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 ... open to litigation as well.”

Provisional ballots would be reviewed by election boards in each of Ohio’s 88 counties. Two Democrats and two Republicans sit on each of the boards. But Ohio State University law professor Daniel Tokaji said Ohio “has very little in the way of standards” for assessing the validity of a provisional ballot.

The state’s election code allows challenges of voters who, for instance, are not at least 18 or a resident of the state for at least 30 consecutive days before the vote. But previous cases could give little clue how state statutes would be applied now, because of the passage of the new federal voting law, several experts said.

Tokaji predicted that Republican Secretary of State J. Kenneth Blackwell might recommend a very stringent standard for acceptance of the provisional ballots, while Democrats “will be pushing for the most liberal standard possible.”

In any event, the mathematics of the prolonged count did not favor Kerry.

Taking a hypothetical example of 200,000 provisional ballots, Ohio State law professor Edward Foley noted that even a high 70% Kerry margin in those votes would net only 80,000 votes, not enough to close the margin with Bush.