For those old enough to have covered the 2000 election, close presidential races trigger flashbacks of late-night interviews with lawyers at the Florida Division of Elections and close readings of the 12th Amendment. The neck-and-neck 2012 race for the White House is unharnessing a stableful of nightmares.
First, Nate Silver estimates the possibility of a decisive battleground state going to a recount at 10%. Most of the states that could tip the election have mandatory recounts if the winner’s margin is slim (typically, 0.5% or less). Recounts tend not to change a large percentage of the votes cast and counted, but as Florida showed, they can move some. Of the nine likely battleground states that could tip the election, Silver rates Ohio as far and away the most important: he gives it a 50% chance of making the critical difference on Election Day. There is good and bad news on that front.
Despite recent left-wing conspiracies suggesting the GOP could easily steal the vote there, Ohio is among the most reliable in the case of a recount, according to a recent study by Common Cause, Rutgers School of Law and the Verified Voting Foundation. In all of its counties, Ohio has paper records for all votes, including for machines that tally votes electronically. The paper records can be inspected by voters to ensure their votes have been accurately cast and can be audited after the fact to provide a backup to the electronic tally. That means any recount in Ohio should be free of the mess that engulfed Florida with its hard-to-read butterfly ballots in 2000.
The bad news is that Ohio may face a counting problem, not a recounting problem. As USA Today reported Thursday, in an effort to make voting easier, Ohio sent absentee ballots to 1.43 million voters who requested them; 800,000 people who asked for those ballots have received them but not yet completed them. Any one of those 800,000 who decides to vote in person on Election Day instead will be given a provisional ballot to ensure they are not voting twice — once by absentee ballot and again at the polls. That means potentially tens of thousands or even hundreds of thousands of ballots will be provisional, which under Ohio state law won’t be counted until Nov. 17 at the earliest. Four years ago Ohio had 207,000 provisional ballots. It’s not hard to see the additional provisional ballots from the 800,000 would-be absentee voters adding up to enough votes to make a difference this time around.
Then there’s the possibility of a tie. This one is a favorite of legal scholars and historians, because it revivifies arcane 18th century constitutional debates and 19th century legal tweaks to the electoral process and turns them loose on the November vote. I go over the details of what happens in the event of a tie in this week’s magazine. The short version is that if both men get fewer than 270 Electoral College votes, including the case of a 269-269 tie, all hell breaks loose.
First there will be an attempt to find and sway electors who might be willing to change their votes, since any one elector’s vote could determine the winner. A small-d democrat, for example, might feel it was his duty to vote for the winner of the popular vote even if he had originally committed to the opponent. It’s also possible that a state legislature could try to replace one or several “controversial” electors: the Florida legislature briefly toyed with the idea in 2000, and states are explicitly allowed to do so until Dec. 11. If no candidate has the support of 270 electors when the college meets and casts votes Dec. 17, the decision goes to the newly elected House, which follows a 225-year-old formula for picking the next President. In a meeting on Jan. 6, each state gets one vote, determined by a vote of the members of its delegation, and a majority of states (26) is required. The House stays in session until a winner is picked.
As things stand, such a vote would likely go to Romney, though it’s pretty hard to game out, since the vote of a state with evenly divided delegations doesn’t count. (New Hampshire could have one D and one R in the new House, for example.) If it must go this way, there is one consolation: under the Constitution, the House would pick the President, but the Senate, which looks likely to stay Democratic, would select the Vice President. That would mean a Romney-Biden White House, which would be worth the price of admission.