Election Not Called Until December? Ultra Close Margins in OH & FL May Trigger Provisional Ballot Recounts

(Photo credit: Human Events)

With votes still being tallied in Ohio and Florida — and the Romney camp maintaining that, as of roughly 11:00 pm ET, it was still too early to call the state in favor of President Obama — the 2012 presidential race may not officially be over any time soon.

The ultimate winner may not be formally determined until well into December. The margin between Barack Obama and Mitt Romney is just too tight in Ohio. As of midnight on election night Romney actually surpassed Obama, and then vise versa, revealing that the margin that separates the two is negligible at best.

The automatic trigger numbers for counting provisional ballots in Ohio is one-quarter of a percent. This does not account for a potential request by the Romney campaign either.

Four years ago more than 207,000 provisional, valid ballots were at play in the Buckeye State. There are reportedly the same number or a greater number of provisional ballots in Ohio this time around. Such a recount could delay the outcome of the presidential race.

Ohio election codes mandate that Secretary of State Jon Husted has until December 7 to verify the results.

Rick Hansen, an election law expert, explained this rare occurrence to Wonkblog:

A new wild card this year is the [Ohio] secretary of state sent out absentee ballot applications to everyone in the state. Anyone who asked for an absentee ballot, but hasn’t returned one, if they go to the polls, they will have to cast a provisional ballot. This could add thousands of people, casting provisional ballots which won’t be counted until November 17.

In what the New York Times dubs a “labyrinthine recount procedure“ that will spur a “mountain of lawsuits,” election officials and legal experts hope for a result that will be “outside the margin of litigation.” The Times explains what a provisional ballot is and why it matters:

What sets Ohio apart is the large number of provisional ballots — those that election officials could not verify on Election Day for any number of reasons: because the voter had a new address, did not provide proper identification, did not appear in the state’s computerized voter registry or had requested an absentee ballot and turned up at the polls on Election Day. Under federal law, voters whose eligibility cannot be verified at the polling place must be allowed to cast at least a provisional ballot; such ballots must be counted if election officials later confirm that the voter is legitimate.

“We’re expecting 200,000 or more provisional ballots — that’s more than New York or California — and that means that an election is contestable here with a margin in the low tens of thousands of votes,” Daniel P. Tokaji, a law professor at Ohio State University, told the Times.

Florida, too, with its close-call as of midnight on election night may also be a state that experiences de ja vu with yet another recount, with the automatic trigger numbers sounding at 0.5 percent. If within this margin, Florida officials could be forced into an automatic recount. The Miami Herald explains:

Under Florida law, a recount is automatically triggered in any race decided by a margin of one-half of one percent. If 9 million people vote in Florida — a plausible figure, given reports of heavy turnout around the state — that means there could be a recount if the presidential vote is decided by 45,000 votes or less.

In a recount, all ballots are submitted again into the tabulating machines to recount the votes. If the recount yields a margin of one-quarter of one percent, the local canvassing boards must then perform another manual recount to examine so-called “undervotes” and “overvotes” — ballots that recorded no vote for president, or multiple votes for president.

Any recount must be completed within nine days from the day it was ordered by the Secretary of State. However, state law also says any recounts must be completed within 12 days of Election Day.

Many will recall that this isn’t the first rodeo for Florida when it comes to recounts. President George W. Bush and Al Gore tussled in the Sunshine State during the 2000 election for weeks until the race was ultimately settled in court. Also, elections officials are still required to collect absentee ballots from those residing overseas for roughly 10 days after election day, according to the Herald.