At This Moment, The Dumbos/Teabaggers Are Packin' Their Brown Shirts For The Trip To Columbus, OH

If only this blogger could turn the calendar back 50 years. Then, he would plan a trip to Columbus, OH to meet the Dumbos/Teabaggers at the southwest corner of Broad and Third Streets (Capitol Square). In this fantasy, Katherine Harris — the thief of 2000 — would be applying coverup makeup to the Dumbos/Teabaggers with the trusty putty knife she uses to apply her own makeup. If there is a Hell, may all Dumbos/Teabaggers burn there forever. If this is (fair & balanced) enmity, so be it.

[x New Yorker]
Ready For A Recount?
By Jeffrey Toobin

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Suppose it’s close, and suppose, further, that Ohio makes the difference. Prepare, then, for a prolonged bout of insanity.

In recent elections, Ohio voters have cast about two hundred thousand provisional ballots in major statewide contests. (Voters cast provisional ballots when there is some question about whether they are entitled to vote. The provisional ballot kicks the issue of the validity of the ballot down the road.) This year, the number may well grow. Just for the sake of comparison, in 2008, Barack Obama won Ohio fifty-three per cent to forty-seven per cent—2.7 million votes to 2.5 million for John McCain. In other words, in this year’s close election, it’s very possible that the provisional ballots will make the difference.

So what happens with the provisional ballots? According to Ohio law, the eighty-eight counties in the state are not even allowed to start counting the provisional ballots for ten days. In the meantime, those who cast provisional ballots are allowed to submit evidence that their votes should count—they can, for example, show forms of identification that they might not have brought with them to the polls on November 6th. (Edward Foley, who teaches at the Moritz College of Law at Ohio State University and helps run an indispensable blog on Ohio voting rights walked me through the process.)

Pause to consider the chaos that would ensue. Both campaigns would try to track down the provisional voters, find their proper documentation, and shepherd them through the process at the county seat. Ballot-by-ballot warfare—for several hundred thousand votes. And that’s just the start.

On November 17th, the counties would begin counting the provisional ballots and conduct a canvass of all votes cast. This is called the official canvass, and it’s supposed to take ten days or less. The counties would report their totals to Ohio’s secretary of state, Jon Husted, who is a Republican. He would then determined if the candidates were within .25 per cent of each other—that is, a quarter of one per cent. If so, state law demands that he conduct a recount.

The recount, if it’s ordered, would probably take place in about five days. Ohio uses two kinds of voting machines: optical scans (based on filled-in bubbles, like standardized tests) and touch screens (the kind that produce paper trails). These are actually two of the better voting technologies. Recounts in Ohio begin with counties doing tests of five per cent of their vote; if that result differs from the earlier number the county had reported, then a recount of every vote is required. Based on the recount, a winner is declared.

This, in any event, is how it’s supposed to work. But based on the experience of covering several recounts, I know that these extravaganzas never unfold as anticipated. First of all, no one knows in advance exactly how the procedures are supposed to work. Both sides will fight about everything. Sooner rather than later, there will be lawsuits. In Florida in 2000, the controversy took both sides by surprise. The Gore and Bush forces had to improvise their legal teams and strategies. This time, both sides are well prepared. That means more lawyers, lawsuits, and acrimony. Robert Bauer, for Obama, and Ben Ginsberg, for Romney, lead squadrons of lawyers who are ready to pounce on the chance to win the election in the courtroom.

Of course, the 2000 race ended in a courtroom—the U.S. Supreme Court, with the decision in Bush v. Gore. That five-to-four decision, which is controversial to this day, settled the Bush-Gore race but not much else. The Justices provided little guidance about how to resolve such contests in the future.

Two more points about recounts. First, control of the process is crucial. Republicans controlled Florida in 2000. Remember the secretary of state Katherine Harris? (If not, refresh your memory.) A partisan Republican like Husted in charge of the process is like an extra percentage point or two in the vote count. Likewise, in Florida, Governor Rick Scott directs a team of loyal Republicans in supervising the electoral process. In short, no one in state government in either state will be cutting Obama any breaks.

Second, passion matters. In recounts, the side that wants to win the most usually does. (Jay Weiner also makes this point in his excellent book on the 2008 recount in the Minnesota Senate race, This Is Not Florida [2010].)

In Florida, in 2000, James Baker III lead a coördinated political, media, and legal effort that swamped the threadbare Gore forces, who were led, timidly, by Warren Christopher. The Republicans had protesters in the streets, with staged expressions of outrage like the so-called Brooks Brothers riot. The Democrats had none. Nothing mattered more to the ultimate result. If this year’s election comes down to a recount, those numbers—of partisans in the streets—may matter as much as the vote count. Ω

[Jeffrey R. Toobin is lawyer, author, and legal analyst for CNN and The New Yorker. Among his six books, Toobin has written Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election (2001), The Nine: Inside the Secret World of the Supreme Court (2007), and The Oath: The Obama White House and the Supreme Court (2012). The Nine won the J. Anthony Lukas Book Prize in 2008. Toobin earned his Bachelor's degree from Harvard College, where he covered sports for The Harvard Crimson, using the column name "Inner Toobin." He graduated magna cum laude and earned a Truman Scholarship. He is also a magna cum laude graduate of Harvard Law School, where he was an editor of the Harvard Law Review.]

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