Today, December 17, is the date the presidential electors of each state meet to cast their official votes for president. No drama surrounds the event this year, because there have been no vote-counting disputes between November 6 and now that could affect the outcome of the presidential election. To invoke a phrase that has become familiar, the margin of victory was comfortably beyond the margin of litigation. But, as 2000 showed, it may not always be so, and some numbers from this year’s election indicate that, of all the presidential swing states, Ohio is the most vulnerable to a ballot-counting dispute that would delay determining the Electoral College winner. As will be detailed below, the swing states fall into three categories in terms of their level of risk–low, medium, or high–with respect to a disputed presidential election. Ohio stands alone in having the highest risk.
Back on November 6, while waiting for the initial vote tallies from the battleground states, I tried to calculate what the margin of litigation might be. Or, to state the point somewhat differently, I tried to determine the deficit by which a presidential candidate might be behind in an outcome-determinative swing state, based on the initial count of ballots on Election Night, and yet still fight on in the hope of being able to overcome that deficit during the canvass of returns, leading to that candidate’s being pronounced the winner in the official certification of the result.
Focusing on Ohio, which Nate Silver (among others) had predicted would be most likely to be the “tipping state” this year (the one which would determine the winner of the Electoral College)—and which, in fact, had been the decisive state in 2004—I reviewed the relevant numbers from 2004 and 2008. Between Election Night and official certifications, John Kerry had managed to reduce George Bush’s lead in Ohio by only some 17,000 votes, from about 135,000 to a little under 120,000. No wonder, then, that Kerry conceded the morning after Election Night, after his campaign did the math. He could not come close to overcoming his Election Night deficit and therefore it certainly was not worth the fight. Had his Election Night deficit been 20,000 votes, however, it would have been worth fighting on during the canvass, as it turned out that he gained almost that amount without even fighting for it. And since on Election Night (or the morning after), he could not know exactly how much he might make up if he pursued the task vigorously, he reasonably might have perceived the 2004 presidential election to be within the proverbial “margin of litigation” if he had been behind by 30,000 or even 40,000 votes.