In fairness, no one thinks such a situation is likely, exactly. But other observers are more inclined to take it seriously. “What I’ve been telling people,” says Rick Hasen, a professor at Loyola Law School in Los Angeles and author of the Election Law blog, “is that they need to prepare for a low-risk chance of a catastrophe, just like you’d prepare for a nuclear meltdown. It’s very unlikely to happen. But the result would be so catastrophic that it’s prudent to take whatever reasonable precautions you can.”
Unfortunately, the precautions Hasen has been proposing for years — including, for example, clearer rules for counting provisional ballots and a shift toward nonpartisan election administration — haven’t been implemented. Consequently, if the election is close, there’ll be plenty of loopholes and ambiguities for the loser to exploit in hopes of becoming the winner.
By way of example, consider the battleground state of Ohio. Recent legal developments there seem to suggest that Ohio won’t be fertile ground for post-election wrangling. On October 17, the US Supreme Court sided with Ohio’s Democratic secretary of state Jennifer Brunner, and against the Ohio Republican Party, staying a temporary restraining order that the Ohio GOP had obtained against Brunner from the Sixth US Circuit Court of Appeals.
Here’s what happened: citing the 2002 Help America Vote Act (HAVA), the Ohio GOP had argued that Brunner should cross-check hundreds of thousands of new voter registrations against a state database — and then tell state election officials how to deal with registrations that didn’t have an exact match. Brunner, however, argued that such cross-checking could force thousands of legitimate voters to vote with provisional ballots — which are easily disqualified, and aren’t counted until 10 days after the election. Following the Supreme Court’s ruling, the Ohio GOP voluntarily withdrew their suit, opting instead to try to hammer out a settlement with Brunner.
So far, so good, if you’re expecting an Obama win and hoping that the courts show deference to that outcome. After all, two political principles clashed — the Democratic desire to get out the vote, and the Republican desire to depress the vote by cracking down on voter-registration fraud — and the highest court in the land sided with the Democrats.
But it’s not that simple. The Supreme Court didn’t actually rule that the substance of the Ohio GOP’s request was illegitimate. Instead, it concluded that the Ohio GOP probably didn’t have the right to sue for the enforcement of one particular subsection of HAVA. In the apt words of Ohio GOP chairman Bob Bennett, it ruled on a “technicality.”
Confused? That’s exactly the point. When HAVA passed in 2002, it was supposed to provide uniformity and clarity, and guard against a repeat of the shitstorm that occurred in Florida in 2000. But the decision to leave HAVA’s implementation up to individual states undermined this goal. So, too, did the fact that HAVA leaves crucial questions unanswered — like who can sue to enforce its various provisions. As a result, a dizzying array of legal arguments could be on the table if the election is sufficiently close.
Imagine, for example, that Candidate X seeks to undo his loss by targeting provisional ballots cast for candidate Y — the likeliest focus for a post-election fight, according to Edward Foley, an election-law specialist at Ohio State University.