Hamilton County Democratic Party chairman Tim Burke recently joked that the possibility that Ohio could keep the nation waiting for weeks to learn who won Tuesday’s presidential election was “really a plot to fill Ohio’s hotels with lawyers.” As with many jokes, this one has some basis in fact. Because as Election Day approaches, the first wave of lawyers already is swarming over Ohio to prepare for the possibility that the election may be decided not just at the polls, but in court. The most lawyer-intensive scenario, many agree, will surface if hundreds of thousands of absentee and provisional votes in Ohio remain, by law, uncounted until at least mid-November.
That possibility, plausible because of the post-election timetables for counting such ballots, could keep the race for the White House undecided for weeks if either President Barack Obama or Republican nominee Mitt Romney needs the state’s 18 electoral votes for victory.
With Ohio’s provisional votes taking the place of the “hanging chads” from the 2000 Bush-Gore debacle in Florida, that almost certainly would trigger furious and protracted legal wrangling over which provisionals should count. That issue, Ohio State University law professor and election-law expert Ed Foley notes wryly, “can look very different the morning after the election than the day before.”
“There certainly will be no shortage of lawyers in Ohio,” said Jennifer Scullion, a New York City-based lawyer who will head a call-in center for the non-partisan voter advocacy group Election Protection where voters may report any difficulties at the polls.
Scullion’s group alone expects to have more than 200 lawyers, support staff and volunteers in Ohio and manning the New York hotline next week. While they might not concur on much else, backers of Obama, Romney and their allies agree that will be only the beginning of the expanded legal presence in Ohio for Election 2012.