Five Things to Keep an Eye on in Ohio

By Edward Foley, Election Law @ Moritz. Posted February 22, 2008.

It is widely believed that Ohio's primary on March 4 will play a pivotal role in determining the Democratic candidate for President. If Obama wins the statewide popular vote, the pundits proclaim, his victory likely would propel him to similar success in Pennsylvania (on April 22), and the party's "superdelegates" -- who by all accounts will control the outcome of the party's national convention in Denver -- will fall in line. Conversely, if Clinton prevails in the Ohio primary's popular vote, then she would be expected to do the same in Pennsylvania, and these two victories in states that will be major battlegrounds in the general election campaign will cause the superdelegates to favor her.

Consequently, the conduct of Ohio's election officials in administering the primary vote is now important, not only as a "test run" of technologies and procedures to be used again in November, but also in its own right. While it is the prerogative of the Democratic Party to make what use of the Ohio primary vote as it wishes -- including any significance the superdelegates may find in the results about the electability of these two candidates in the fall -- it remains the responsibility of the state's election officials to manage the casting and counting of primary ballots properly, so that its results are accurate.

Whether we care about the performance of Ohio's election system for one or both of these reasons, what should we look for on March 4 to evaluate whether or not it worked satisfactorily?

Here are five things to keep an eye on. While this short list is inevitably incomplete -- indeed, one important truth about election administration is the need to maintain flexibility given the good chance that something unexpected will occur -- this is a reasonable set of priorities as we come within two weeks of the primary date.

1. Cuyahoga County. Ohio's most populous county has been the source of its biggest electoral problems in recent years, including what was supposed to be an easily administered election just last November. But from officials who fudged a 2004 recount to save time and money, to precincts that were so poorly managed that over 10,000 ballots were cast by voters who never signed in, to misplaced vote tallies from 14% of precincts, to mutilated "paper trails" for a fifth of all votes -- the list of recent failings is so long and so serious that major improvement in Cuyahoga County has been "job one" for Ohio's new Secretary of State, Jennifer Brunner, who took office last year.

Brunner replaced the county's Board of Elections and installed a new director. She has also forced the Board to change its voting technology for the March 4 primary, jettisoning its touchscreen machines in favor of a "central count" form of optical-scan equipment. Unlike optical scan ballots that are counted at the precinct, at least initially, "central count" optical-scan ballots will not be counted until they are delivered to the Board's central offices. (Brunner has backed off her proposal that all Ohio counties move to this "central count" approach, but her insistence that Cuyahoga County do so remains in force, now that a federal court has refused to intervene on the issue.)

Some observers expect that the use of "central count" machines will delay the reporting of election results on the night of March 4. While that delay would be frustrating to the candidates and the media, as well as to citizens all around the country who would like to know the outcome of Ohio's primary, any such delay is not necessarily cause for doubting the accuracy of the results that are eventually reported. Historically, late election returns from certain localities (think Chicago, 1960) raised suspicions that the delays were used to swing the race to the favored candidate. But I would imagine that any delay in counting Cuyahoga's optical scan ballots once they have arrived at the Board's central office would be innocent, representing a bottleneck on the flow of ballots through the machines. Moreover, I would assume that representatives of the candidates -- and the media -- will keep an eagle eye on the counting process as it occurs at the central office, given the intense interest in Cuyahoga's vote.

I am more concerned, however, about the methods by which Cuyahoga's ballots are moved from precinct to central office. One need not expect anything nefarious in order to be a bit worried. In the May 2006 primary, the county lost in transit from precinct to central office 75 electronic cartridges containing the votes from 14 percent of precincts. Unfortunately, it is not at all inconceivable that on March 4, for reasons solely of ineptitude or inadvertent mistake, ballots could go missing before they have a chance to be counted. Also, the Ohio General Assembly is poised today to pass a bill that will permit transit to the central office twice on primary day, to speed up the central counting, but thereby potentially increasing the chances of errors in transit.

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Edward B. Foley, Robert M. Duncan/Jones Day Designated Professor of Law at Moritz, is the Director of Election Law @ Moritz. One of the nation's preeminent experts on election law, Professor Foley teaches and writes in all areas of this field, including campaign finance regulation.

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