Nov. 6 might not mark the end of the election this year, thanks to new voter ID laws in several states. If the election is close, and voters are forced to cast provisional ballots due to those laws, there could easily be a delay in determining the final result.
It raises the specter of the 2000 election, where lawyers, hanging chads, and the U.S. Supreme Court eventually hashed out the final results of that presidential election a month after the election was held.
The issue here is new, stricter laws in states like Virginia, Florida, Pennsylvania, and Wisconsin affecting the presidential election, as well as similar laws in Kansas, Mississippi, South Carolina and Tennessee having an effect on their local and state elections. Though many of these voter ID laws are being challenged in court, if they are upheld, they typically lead to voters voting with provisional ballots.
Provisional ballots are cast if voters don’t bring proper ID to the polls, don’t update their voter registration after moving, try to vote at the wrong precinct, or have their right to vote challenged. These ballots are counting only after election officials determine whether or not they were eligible to vote, which can take days or weeks to determine. Often, officials won’t know how many provisional ballots have been cast until after Election Day.
In 2008, 2.1 million provisional ballots were cast, with 69% eventually being counted. That number is almost certain to increase in 2012 with these new laws, and with a close election predicted, it could make things problematic. For example, Florida could see a ten-fold increase in provisional ballots, from 36,000 in 2008 to 300,000 estimated this election.
The past two presidential elections have seen provisional ballots play only a marginal role in the final result. In 2004, John Kerry did not concede until the day after the election, because there were more provisional ballots cast than the margin of George W. Bush’s victory in Ohio. Eventually, though, it became clear that Bush would still win with provisional ballots cast.
In 2008, Barack Obama was not officially named the winner of North Carolina because the number of provisional ballots cast in the state was larger than his margin of victory among other voters. He was eventually awarded the state, but he had already secured the presidency through winning other states, so the point was somewhat moot.
In 2012, that might not be the case.
– Benjamin Nanamaker, InvestorPolitics Editor
The opinions contained in this column are solely those of the writer.
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