Why We Might Not Have a Presidential Winner on Election Night

Marc Lewis holds daughter Alexa, nine-months-old, as he votes at the Heritage Universalist Unitarian Church,Tuesday, March 6, 2012, in Cincinnati. Ohio is the biggest prize in political significance on Super Tuesday, the GOP presidential primary showdown across 10 states for more than 400 delegates. Mitt Romney and Rick Santorum have devoted much of their campaign attention to Ohio in recent days. (AP Photo/Al Behrman) (ASSOCIATED PRESS)

Two presidential campaigns are underway: One to win on Election Day, the other to win after it.

President Obama and Mitt Romney are each preparing for recounts, confusion over voter-eligibility rules, and even the chance of a tie in the Electoral College. A close election, as this one will almost certainly be, means all three scenarios are on the table.

In 2000, it took until Dec. 12 for lawyers and courts to settle on a White House winner. Here are three ways this year's presidential battle could last long past Nov. 6:


Florida's infamous 2000 presidential recount is the first thing that comes to mind when talk turns to a possible recount. And election experts in the Sunshine State want people to know things have changed in the last 12 years.

The state's recount rules are now far more clear and explicit, and less vulnerable to charges of political maneuvering. Instead of recounting individual counties, recounts are now conducted statewide in cases of a winner beating an opponent by half of a percentage point or less. The trigger is automatic.

All voting booths also now use paper ballots, eliminating the possibility of the infamous "hanging chad" that plagued the contest between George W. Bush and Al Gore.

"We've got 12 years of successful elections under our belt in Florida since we were in the spotlight," said Stephen Rosenthal, Obama's general counsel in the state.

This time around, observers looking for a drawn-out election should focus on the Buckeye State. Ohio orders a recount if the margin between the top two candidates is within one-fourth of a percentage point of the total votes cast.

But such a recount would begin only after the election results are certified in each individual county — and the deadline for that is 21 days after Nov. 6. The secretary of state would then need to certify the results, which a spokesman indicated would take a few additional days. In other words, it could take until December before a recount in Ohio even begins.

Candidates can also request a recount in Ohio, either for the entire state or individual precincts.


Though Republicans pushed to tighten voting requirements in an array of states the last two years, few of their proposals passed or survived legal challenges. That's left the voting landscape largely unchanged from four years ago.

"The strict voter I.D. laws that we were most concerned about aren't going to be in effect in any swing state," said Lawrence Norden, deputy director of the Democracy Program at the liberal-leaning Brennan Center for Justice.

A court ruled that Pennsylvania's strict new voter-ID law can't take effect until after the election, for instance. Restrictions on groups that register voters in Florida were reversed, and Colorado's secretary of state largely backed off a plan to force suspected noncitizens to provide proof of eligibility.

But several battlegrounds are notable exceptions. Virginia now requires voters to provide some kind of proof of identification, whether a driver's license or utility bill. That's a broader range of acceptable forms than most proposed voter-ID laws, but voters could still show up at the polls without any identification on hand. In that case, they'll have to cast a provisional ballot and prove their identity later —  a headache if officials are trying to determine the winner of a close race in their state.

"That's the nightmare," Norden said. "That's definitely the nightmare."

The most likely scene of a protracted mess, however, is the premier battleground of Ohio. Secretary of State Jon Husted sent an application for an absentee ballot to every eligible Ohio voter, the first time that's been done in the Buckeye State. So far, 1.4 million people have applied for absentee ballots and 620,000 absentee votes have been cast, a Husted spokesman said on Thursday.

Here's the catch: If a voter applies for an absentee ballot, disregards it, and shows up to vote on Election Day, he or she can cast only a provisional ballot. And those votes can't be counted until 11 days after Nov. 6.


A tie in the Electoral College is extremely unlikely —  analyst Nate Silver of The New York Times estimates the chance the race could end up tied 269-269 is less than 1 percent —  but the razor-thin margins in polls of many swing states have made the scenario possible. In such a case, the next Congress, not voters, would pick the country's president and vice president when it convenes in January.

Each chamber would be responsible for one-half of the ticket: The House would select the president, while the Senate would choose the vice president. But how the ballots will be cast in each chamber differs.

In the Senate, each senator receives one vote to select the vice president. But in the House, each state delegation receives one vote, so which party controls the majority of the chamber isn't quite as predictive as you might think.

That said, Romney would still be the favorite. The GOP is favored to retain its majority, and it controls delegations in a wide array of small, rural states like Nebraska and Kansas, which will cast as the same single vote as large states such as California and New York. And thanks in part to controlling redistricting in most states after the 2010 midterm wave, Republicans outnumber Democrats even in delegations from blue states like Pennsylvania.

In the Senate, Democrats have better-than-even odds of keeping their majority. That raises the possibility that the country could have a president and vice president from different parties.

Most plausible scenarios for an Electoral College tie include Romney winning Nevada. So if the Silver State turns red on Election Day, the unlikely might suddenly become possible.

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