Millions of Americans will stay up late tonight to learn who won the battle for the White House.
There’s a chance they won’t find out — tonight or tomorrow or even next week.
That could happen, political experts say, if the race came down to Ohio’s 18 electoral votes but the contest was so close that a winner couldn’t be determined until the provision ballots were counted.
Under Ohio law, those paper ballots couldn’t be counted for at least 10 days.
That’s the worst-case scenario that has lawyers on both sides of the political aisle gearing up for what could be a long and bitter legal battle.
If that happened, Ohio would be in uncharted waters because there hasn’t been a statewide election close enough that it came down to provisional ballots, according to Carol Lawler, Medina County’s elections board director.
“There have never been so many provisional ballots that would have affected a result in any election so far,” Lawler said. “It would be something totally new.”
Provisional ballots weren’t a factor in the last presidential election in 2008 because President Barack Obama defeated Sen. John McCain by 262,224 votes in Ohio.
That year there were 206,859 provisional ballots handed out, but only 166,870 — about 81 percent — were counted after being determined valid.
Medina County reported 2,275 provision ballots that election.
Overall in the 2008 election, provisional ballots were 2.9 percent of the total
8.3 million ballots cast in Ohio.
The situation could have been different if the race for the White House had come down to Ohio, as it did in 2004, when George W. Bush beat Democrat U.S. Sen. John Kerry by 118,601 votes —
2.1 percent of the 5.6 million ballots cast.
In 2000, which was decided by Florida, the margin of victory was even narrower: Bush beat Vice President Al Gore by 537 votes, and weeks of litigation going all the way to the U.S. Supreme Court ensued.
This year, if the margin between Obama and GOP presidential candidate Mitt Romney is as close as some pollsters predict, it might take even longer to determine a winner because Ohio law says elections officials may not count provisional ballots until 10 days after the election.
Election strategists are watching Ohio closely, and lawyers from both sides already have been in court arguing over how provisional ballots will be counted.
On Saturday, Ohio Secretary of State Jon Husted, a Republican, directed that voters must fill out what type of identification they provide on their provisional ballot. If the section is not filled out, poll workers are not required to fix it or point it out, and the provisional ballot later could be rejected.
Critics argue Husted’s order wrongfully puts the burden of recording the form of ID on voters not poll workers.
“This increases the statistical likelihood of some inaccuracy on the form,” leading to the chance of those votes being rejected, Cleveland attorney Subodh Chandra said Saturday, according to an Associated Press story.
Earlier this year, Husted sent absentee ballot request forms out to all registered voters. Voters who requested an absentee ballot but decided not to use it won’t be able to vote a regular ballot on Election Day. Instead, they will be given a provisional ballot when they show up at the polls.
This weekend, Husted reported about 200,000 of the 1.3 million absentee ballots mailed out have not been returned yet.
According to The Associated Press, both campaigns are marshalling lawyers ready to go into states like Ohio and Florida in the event the vote count ends up in court.
In Medina County, Lawler is hoping for the best.
If the race in Ohio comes down to provisional ballots, she said those ballots will be counted as they always have been.
“We have to let the voters determine how it’s going to turn out,” she said.
Contact Loren Genson at (330) 721-4063 or firstname.lastname@example.org.