Both campaigns are also girding for a fight over which provisional ballots will ultimately be deemed valid. And, here again, there is uncertainty. The U.S. Court of Appeals for the 6th Circuit this week ruled in favor of Ohio’s secretary of state, a Republican, who had ordered that provisional ballots cast at the wrong location would not be counted. A lower court had overturned the secretary’s decision earlier this month. Challengers could appeal the Appellate Court ruling to the Supreme Court on an expedited basis, which would draw yet another comparison to 12 years ago.
The argument over which provisional ballots should be counted, Potter says, is where the process could degenerate into partisan warfare on a county-by-county basis. (Sound familiar?) If the campaigns learn the names and partisan leanings of the voters who cast each ballot, they’ll fight to keep some from being counted, Potter says. “Both parties have had teams of lawyers in Ohio for some time,” he says. “In a close race, you would see at least a 10-day period of disputes and uncertainty before the local boards.” Neither campaign will be caught flat-footed. Obama’s top attorney, Robert Bauer, and Romney’s, Ben Ginsberg, were each deeply involved in the Florida recount.
The biggest dispute will likely center on Ohioans who applied for an absentee ballot but decided instead to vote on Election Day. These voters will be allowed to cast only provisional ballots, which will be counted only after officials determine they didn’t vote twice.