November 4, 2004
In Making His Decision on Ohio, Kerry Did the Math
By ADAM LIPTAK
or Senator John Kerry, the results in Ohio were simply outside the margin of litigation, specialists in election law concluded.
Mr. Kerry faced a deficit of about 135,000 votes in the state, and the number of votes that might have been harvested using all the legal tools available to him could not bridge that gap, these specialists said.
In contrast, the presidential election hung in the balance on just 537 votes in Florida four years ago.
By far the largest number of potential votes for Mr. Kerry were from provisional ballots. The ballots, required by a federal law intended to restore public confidence after the Florida situation, are offered to potential voters whose names cannot be located on the local election rolls. Election officials determine later whether the ballots should be counted.
The Kerry campaign said early Wednesday morning that it expected 250,000 provisional ballots in Ohio. By late Wednesday, the Ohio secretary of state's office was reporting about 135,000 of these ballots, based on information from 78 of the state's 88 counties.
The secretary of state, J. Kenneth Blackwell, estimated that the final number could be 175,000; election analysts generally said they expected about 150,000.
In the end, Mr. Kerry's calculation was, then, as much mathematical as it was legal.
"Even if there were 250,000 provisional ballots out there," said Daniel Tokaji, who teaches election law at Ohio State University, "it wasn't going to be enough to bridge a 135,000 gap."
The percentages tell much of the story, even before consideration of the nature and novelty of the ballots. Senator Kerry would have needed to capture more than 77 percent of 250,000 ballots to win. He would have needed more than 95 percent of 150,000 ballots. Those are daunting numbers, analysts said.
And not all provisional ballots count. In the 2000 election in Ohio, about 10 percent of these ballots were rejected. That was before a federal law, the Help America Vote Act of 2002, broadened the number of settings in which the ballots are used. The new law made a higher disqualification rate likely because of new problems like incomplete registration forms and inadequate identification, said Edward B. Foley, the director of an election law center at Ohio State.
Across the country, significant numbers of provisional ballots are sure to be rejected this year, said Daniel Lowenstein, who teaches election law at the University of California, Los Angeles. "Probably a majority and maybe a solid majority will get counted," Mr. Lowenstein said, "but it will vary state by state."
In Ohio, four-member county election boards, each with two Republicans and two Democrats, determine whether provisional ballots will count. Three officials must vote in favor for a ballot to be accepted, meaning partisan divisions could result in many votes not being counted.
On Tuesday, a Cincinnati voter filed suit in federal court there challenging the standards for counting provisional ballots, calling them "vague, incomplete and insufficient." The lawsuit is pending, and it may affect how the ballots are counted.
If counties use different standards in accepting provisional ballots, objections under the United States Supreme Court's 2000 decision in Bush v. Gore are possible, Professor Foley said.
Until the issue ripens, though, he added, the lawsuit may be premature. "We haven't heard the analogy to the hanging chad yet," he said.
After provisional ballots, Mr. Kerry's next most likely source of votes would have been recounts, which both sides were free to request. About 70 percent of Ohio voters used punch card ballots, and recounts of those cards could conceivably have yielded 10,000 or 20,000 votes for one side or the other, Professor Tokaji said.
A third issue could have given rise to long-shot litigation.
"In the real world," Professor Tokaji said, "the biggest source of lost votes was extremely long voting lines, especially in urban areas. Four- and five-hour-long lines are inexcusable. They are a blot on our democracy."
Professor Tokaji said a suit was at least plausible to press courts to allow people discouraged by the lines to vote days later if they swore they had tried to vote on Election Day.
Even in combination, though, provisional ballots, recounts and ambitious litigation were unlikely to have produced 135,000 votes.
"Kerry would have had to hit three home runs in a row," Professor Tokaji said. "The odds of him hitting those three home runs, one of which would have had to be a grand slam, were too long."