WASHINGTON, November 5 (By Carl Schreck for RIA Novosti) - As Americans prepare to choose their next president on Tuesday in what is shaping up to be a razor-thin race, the specter of the chaotic and contentious too-close-to call finish in the 2000 presidential race between George W. Bush and Al Gore hangs over the election.
In that race, a tornado of litigation and poorly perforated punch-card ballots ended with a US Supreme Court decision that halted a recount in the state of Florida and effectively vaulted Bush into the White House.
The world, meanwhile, was left questioning America’s ability to accurately and efficiently elect its leader.
Twelve years later, the possibility of a photo finish looms in the race between President Barack Obama and Republican challenger Mitt Romney on Tuesday.
And while the United States has taken steps to head off Bush v. Gore–style post-election turmoil, the fundamental deficiencies of American elections remain largely unchanged since 2000, US election law experts say.
“If there’s an issue anywhere that requires a careful examination of [US] electoral processes, it will likely reveal the fact that voting today remains an incredibly complex process run on a shoestring budget basically by volunteers,” said Steven Huefner, a professor at Ohio State University’s Moritz School of Law.
In part to help prevent a repeat of the tumult of 2000, the United States passed the Help America Vote Act in 2002. The law stipulated federal funding for states to update their voting-system technology, establish centralized state voter registries, and improve access to polling stations.
But the basic architecture for resolving a disputed presidential election has essentially remained the same since 2000, said Nathaniel Persily, an election law expert at Columbia Law School.
“We still entrust most of the enforcement to partisan officials at the state level, and we have a high degree of decentralization that allows for lots of discretion and a high probability of error at the county level,” Persily said.
Unlike most countries, the United States does not have a national election authority in charge of administering elections, it’s all left to the individual states.
“We have 50 states that have multiple technologies,” Persily said. “Sometimes the rules of the election differ from county to county.”
In Florida 2000, much of the controversy centered around the paper punch-card ballots that were improperly or incompletely punctured by voters. Photographs of befuddled election officials staring at the paper ballots subsequently became the election’s iconic images.
Those punch-card ballots have been eliminated nationwide since the Help America Vote Act. But that same law has sparked a rise in the use of so-called “provisional ballots,” which election experts say could become the punch-card ballots of the 2012 election.
Under the law, if voters are unable to immediately prove their eligibility to vote, they can cast provisional ballots and can demonstrate they are eligible—by presenting identification, for example—at a later date.
In an especially close race, these provisional ballots could be crucial in tipping the scales in a given state. But that could mean waiting for those provisional voters to return within the deadline to prove their eligibility.
Americans, therefore, could wake up Wednesday morning without knowing who their next president might be, just like in 2000.
“It could be really important for people to return with identification,” Huefner said of voters who cast provisional ballots. “The question is how many are going to follow through.”
There could be a legal tussle by the Romney and Obama campaigns to access the list of those provisional voters to make sure their votes are counted, Huefner added.
“Campaigns would likely be assisting those voters—helping drive them back to the polls—but they can’t do that very well if they don’t have the list,” he said. “There could be a legal fight over whether that list could be accessed.”
Ohio is widely seen as a possible Ground Zero state for a post-election skirmish between Obama and Romney. Many project the state’s 18 electoral votes will decide the election just as Florida’s 25 electoral votes gave the election to Bush in 2000.
The state is currently deemed a toss-up by RealClearPolitics, a website that tracks and averages national polling data. It is also widely reported to have more voters, percentage-wise, who cast provisional ballots than any other state in the nation.
Under Ohio law, voters who cast provisional ballots have 10 days after the polls close to prove their eligibility.
“The bad news is that we may have to wait,” said Aaron Ockerman, executive director of the Ohio Association of Election Officials. “The good news is that we have really good laws in place for provisional ballots. If there is a delay, it will be because we are making sure every vote that’s legally cast is counted. Our priority is on getting it right, not getting it quick.”
Matt McClellan, a spokesman for Ohio Secretary of State John Husted, said the list of provisional voters would not be available to the public until every eligible vote had been counted.
More than 200,000 voters cast provisional ballots in Ohio in the 2008 presidential election, and Obama defeated Republican candidate John McCain in the state by just over 260,000 votes. In 2004, Bush defeated Democratic challenger John Kerry by just 119,000 votes in Ohio.
Provisional ballots—along with hundreds of thousands of possible absentee ballots—are the two most likely sources of possible post-election litigation in the state, said Huefner.
McClellan declined to speculate on how many provisional votes might be cast in Ohio in this election.
He said, however, that he does not expect any post-election snags in the state, even if there are delays in declaring a winner.
“We have a process in place, and I think it will be a smooth process,” McClellan said. “Ohio is ready.”
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