After 7:30 p.m. today, it’s no longer about which candidate you voted for. It’s about which votes get counted. If today’s presidential election in Ohio is too close to call, the state’s complicated process for counting provisional ballots will likely face national scrutiny. The process will play out slowly and painstakingly over the next couple weeks, and in the end, Republican Secretary of State Jon Husted ultimately could be the person who decides which provisional ballots must be counted and which will be tossed. “That will get dicey,” said Edward Foley, director of Election Law @ Moritz, a program at the Ohio State University’s Moritz College of Law. “That just shows a structural weakness in our system.”
Flaws and all, Ohio’s provisional ballots, cast when a voter’s eligibility is questioned at the polls, could decide the presidency. What would that be like? “Ask the people in Florida who lived through 2000,” Foley said.
Ohio’s provisional ballots will come into play if, after the polls close today, the gap between Barack Obama and Mitt Romney is smaller than the number of provisional ballots cast. That number might not be known until about 3 a.m. Wednesday, according Husted’s office. More than 200,000 were cast in Ohio in the 2008 presidential election. About 40,000 were rejected and not counted.