More than 200,000 provisional ballots were cast in Ohio in the 2008 presidential election.
COLUMUBS, Ohio -- After 7:30 p.m. today, it’s no longer about which candidate you voted for. It’s about which votes get counted.
If today’s presidential election in Ohio is too close to call, the state’s complicated process for counting provisional ballots will likely face national scrutiny.
The process will play out slowly and painstakingly over the next couple weeks, and in the end, Republican Secretary of State Jon Husted ultimately could be the person who decides which provisional ballots must be counted and which will be tossed.
"That will get dicey," said Edward Foley, director of Election Law @ Moritz, a program at the Ohio State University’s Moritz College of Law. "That just shows a structural weakness in our system."
Flaws and all, Ohio’s provisional ballots, cast when a voter’s eligibility is questioned at the polls, could decide the presidency. What would that be like?
"Ask the people in Florida who lived through 2000," Foley said.
Ohio’s provisional ballots will come into play if, after the polls close today, the gap between Barack Obama and Mitt Romney is smaller than the number of provisional ballots cast. That number might not be known until about 3 a.m. Wednesday, according Husted’s office.
More than 200,000 were cast in Ohio in the 2008 presidential election. About 40,000 were rejected and not counted.
Here’s a breakdown of how provisional ballots are cast and counted in Ohio:
Provisional ballots are given to voters at the polls when their eligibility is in question due to address changes or other discrepancies. Voters who cast provisional ballots fill out a form with their name, signature and an accepted form of identification, such as the last four digits of their social security number, driver’s license number or a current utility bill or bank statement.
If identification is not provided at the polls, a voter has 10 days after the election to visit the county board of elections and provide identification for the ballot to count.
The day after the election, elections boards can start sorting through their provisional ballots. The boards can designate bipartisan teams to perform this task, but only board members can decide which ballots are valid or invalid.
In Cuyahoga County, ballots are divided into several categories. They can include:
-- Ballots cast by people who were not registered to vote.
-- People who sent in an absentee ballot but still cast a provisional ballot on Election Day, possibly out of fear their absentee ballot was not received.
-- People whose signature on the provisional ballot form does not match their signature on file with the elections board.
-- People who did not provide identification.
Provisional ballots cannot be opened or counted during the sorting process.
Once the ballots are sorted, members of boards of elections vote on which ballots are valid and which are rejected. Boards in each of Ohio’s 88 counties have four members, two Democrats and two Republicans. They cannot begin voting on ballots until Nov. 17.
Husted has provided boards a six-step process for determining the validity of provisional ballots, which includes searching databases in an attempt to verify voters’ identities.
If the board ties on whether to accept a ballot, Husted would be required to break the tie vote.
Husted downplayed the partisan politics that could be involved in his tie-breaking votes because the ballots’ contents would be secret. Voters’ party affiliations, however, are public records.
"It’s my responsibility, and it’s a job that will not be an easy one but it’s a job that I accept," he said.
Sandy McNair, a Democrat on the Cuyahoga County Board of Elections, said he couldn’t recall the board deadlocking on whether to accept a provisional ballot. He said the votes have not been partisan in nature.
But McNair called problematic a new rule Husted put in place Friday for counting provisional ballots.
Husted updated the rules with language that placed the responsibility on voters for filling out a special form when casting a provisional ballot. Husted has directed boards to reject ballots if a voter fails to fill out the form and fails to provide identification within 10 days of the election.
The Ohio Democratic Party, voting rights advocates and other parties have asked a federal court to throw out the measure. They say poll workers are responsible for making sure the form is filled out with identification information. Husted’s order will increase the chances ballots are tossed, they argue.
Husted on Monday said voters should provide identification information, such as a driver’s license number, because they are more likely to get it correct.
U.S. District Judge Algenon Marbley has scheduled to hear arguments in the case on Wednesday.
Foley estimated, based on past election results, that the legal issue could affect about 5,000 provisional ballots.
"It makes me a little nervous we don’t have this issue settled before tomorrow," he said. "You should go on the field knowing what the rules are."
Husted also said he would prefer to have the legal dispute settled as soon as possible. His office was in discussions on Monday to resolve the situation.
But such a settlement would do nothing to fend off the legal battles if Ohio’s winner depends on provisional ballot results.
"If there is a close race there just will be litigation and there’s no way around it," Husted said.
Husted must certify the election’s results by Dec. 7. An automatic recount is triggered when the margin between the winning and losing candidate is equal to or less than 0.25 of 1 percent of the total votes cast in that race. In a race with 5.6 million votes cast, for example, a vote margin of 14,000 or fewer would trigger a recount.