In Ohio, the electoral mayhem that didn't happen

In the end, the lawyers are going home.

As a result, one of the most controversial aspects of the 2000 election debacle in Florida will not be repeated in Ohio.

With 136,000 votes separating President Bush from Sen. John Kerry in the key battleground state of Ohio, one big unresolved question early Wednesday morning was whether the Massachusetts Democrat would attempt to sue for the presidency.

He decided against it. Instead, by bowing out, he has allowed the bitter electoral contest to be decided by voters rather than judges.

The decision disappointed many hard-core Kerry supporters and more than a few eager lawyers. But it was also probably greeted with a sigh of relief from the justices of the US Supreme Court, grateful to not be thrust into another presidential election controversy.

In 2000, Al Gore went to the courts to try to overcome Mr. Bush's diminishing lead in Florida. But Mr. Gore had won the popular vote nationwide, and there were widespread reports of problems in the Florida vote, including the infamous butterfly ballot and a multitude of hanging and dimpled chads.

This year, in contrast, Bush won the popular vote, and other than reports of long lines and the usual scattered foul-ups, the voting itself appears to have been fairly clean, at least compared with 2000.

But with some of the nation's finest litigators on his team, many Democrats were hoping Senator Kerry would choose a strategy of "no retreat, no surrender," to use the words of Kerry supporter Bruce Springsteen.

At issue in a Kerry challenge would have been whether Ohio's yet uncounted provisional ballots might provide an opportunity for him to overcome the Bush lead and capture both Ohio's 20 Electoral College votes and the White House.

The Ohio Secretary of State's website reports there are 135,149 provisional ballots. But there are still nine counties that have not yet reported in their provisional-ballot count. Analysts say the number of provisional ballots could climb to between 150,000 to 180,000.

But there are two crucial questions: First, how many of the provisional ballots are valid votes? And second, how many of those valid votes are Kerry votes?

In addition to provisional ballots, a Kerry litigation effort could have launched other kinds of election challenges that might yield even more Democratic votes.

The counting of absentee ballots, the impact of long lines on Election Day, and even the possibility of hanging chads on punch-card ballots all might find their way into court, analysts say.

Ruth Colker is a professor at Ohio State University's Moritz College of Law in Columbus. She says that if similar standards were used to count this year's provisional ballots as were used in prior elections, close to 90 percent of the ballots would be held valid. Of those, she says, two-thirds would probably represent Kerry votes.

Professor Colker says counting the provisional ballots might reduce the Bush lead to 80,000 votes. The margin of victory might be further eroded, she says, through a recount of the same punch-card ballots that produced the hanging chads in Florida in 2000.

"Eighty-thousand votes is a lot of votes to pick up in a recount," she says. "I really think [Kerry] needed to be under 10,000 to be talking about a recount."

Had Kerry gone into challenge mode, analysts say he would have faced an uphill battle.

Ohio election law provides a procedure for a candidate to contest an election. But that formal process does not begin until the results are officially tabulated, 11 days after the election.

With only a limited window of opportunity prior to the state's Dec. 7 deadline to designate the state's Electoral College delegates, any litigation effort must yield results quickly.

Legal analysts say one of the thorniest questions likely to arise in a legal challenge over provisional ballots would be the standard used to ensure that no votes were diluted by partisan officials engaged in the counting process.

If Republican officials in Republican areas adopted stricter standards than Democratic officials counting provisional ballots in Democratic areas, that could raise the kinds of concerns that prompted the intervention of the US Supreme Court in the 2000 Florida recount.

Ironically, the stage for this potential showdown in Ohio was set by a federal law passed in 2002 to avoid the legal dramas of Bush v. Gore in 2000. While the Help America Vote Act has made it easier for some individuals to obtain provisional ballots rather than simply being turned away from the polls, it has also made it easier for lawyers to challenge the outcome in close elections by arguing that provisional ballots were improperly excluded.

Such challenges can be filed in vote-rich local jurisdictions with sympathetic judges.

Colker of Ohio State University says Kerry's decision not to challenge the results in Ohio may be a plus for the development of election law in Ohio. "Maybe in some ways it is better to resolve these issues without the election hanging in the balance," she says. "We do need to have some fair and neutral standards for future elections."

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