President Barack Obama appeared to win a second term in the White House late November 6, sharply reducing the likelihood of any major post-election legal battles in key states like Florida, where the vote totals are so close it appeared a recount might be necessary.
The major television networks had projected Obama as the winner by 11:30 p.m., after a day of voting problems that legal experts say could still become the subject of litigation since they could affect “down-ballot” races.
A closer margin in Ohio would mean an extra focus on provisional ballots, which would not be counted for at least 10 days and have already been the subject of pre-election litigation. Both campaigns had geared up for the possibility of an extended legal battle over those ballots that some thought could have lasted until December.
“Up to 250,000 provisional ballots in Ohio — thank goodness they won’t be dispositive,” tweeted election law expert Richard Hasen, a professor of law and political science at the University of California, Irvine.
The election did not always look so clear cut as results rolled in Tuesday night. In Florida, with a weighty 29 electoral votes, the difference between the candidates at times was just a few hundred votes with around 80 percent of the votes tallied.
The slim margin in Florida reminded some political and legal analysts of the slim margin in the Bush v. Gore recount battle in 2000. In that state, an automatic recount would be triggered if the margin between the candidates is within 0.5 percent of the vote.
When the networks and the Associated Press projected Obama to win Ohio, an extended post-election legal fight like the one in 2000 looked far less likely. A concession speech by Republican challenger Mitt Romney, or further gains by Obama in electoral votes, would make the outcome of any Florida recount a moot point. As of midnight, Romney had not yet conceded.
Other voting problems appeared throughout the night. In Virginia, which was supposed to be an early sign of how close the presidential race would be, long lines at polling places delayed release of the voting results.
As election day progressed, the lines at the polls posed problems for voters across the country. Tens of thousands called phone banks in Washington D.C. and New York City for help.
Reed Smith hosted 40 of these phone lines at its D.C. office on behalf of the Lawyers’ Committee for Civil Rights Under Law, with lawyers, paralegals and law students answering questions from voters in Virginia, Maryland, D.C. and New Jersey.
Kevin Madagan, a D.C.-based Reed Smith associate, said the nonpartisan volunteers started answering thousands of questions starting at 6 a.m., or dispatching a “legal mobile volunteer team” out in the states to address issues.
For the most part, callers reported long lines, and allegations of serious machine problems, such as one Virginia precinct that had no machines and only 50 paper ballots Tuesday morning, Madagan said.
The Election Protection hotline reported on Twitter that it had received 71,809 calls as of 5:00 p.m., and would likely surpass the 100,000 calls in 2008.
Any number of races further down on the ballot that are close could be pushed into the courts, said Hasen, who wrote about how election litigation has more than doubled since the Bush v. Gore election in his new book, The Voting Wars: From Florida 2000 to the Next Election Meltdown.
In Ohio, ongoing litigation about the way provisional ballots are counted will continue so that election law is settled, even if the media spotlight has moved on, Hasen said. And in New Jersey, voters have been complaining about problems with the email voting system, something that would not likely affect the presidential race but could cause challenges and post-election litigation for all of the down-ticket races that are close, he said.
Contact Todd Ruger at email@example.com.