Just a few days ago, Judge Algenon Marbley of the United States District Court for the Southern District of Ohio ruled that he, and not the Ohio Supreme Court, had jurisdiction to hear a suit brought by supporters of Steve Stivers as to whether a particular batch of 1,000 provisional votes cast in OH-15 should be counted. (And he also said they should in fact be counted.) Today, the United States Court of Appeals for the Sixth Circuit reversed that ruling, saying that the case should get sent back to the Ohio Supreme Court, where it was originally filed.
Note that the appeals court did not rule on whether those 1,000 votes can be counted – rather, they simply decided a jurisdictional dispute. The Ohio Supremes will rule on the merits of the issue; they are a 100% Republican-appointed bunch, so this unfortunately does not bode well.
Meanwhile, rural Madison County completed its vote count, putting Stivers’s lead at 594 votes. The only remaining votes now are therefore in Franklin, which has 27,306 provisional ballots outstanding, a number that I believe includes the 1,000 disputed ballots. The thing is, no one is quite sure how many of these 27K are in the 15th CD, though this district occupies about 40% of Franklin. Nonetheless, I’m going to try to estimate.
There are three CDs which occupy portions of Franklin County: OH-07, OH-12 and OH-15. Using unofficial returns (PDF), we can see that, counting over-votes and under-votes, about 50% of House race ballots were cast in the 15th, while 42% were in the 12th and 8% were in the 7th. So let’s say that half of the provisionals (13,500 or so) belong to the 15th. Now what?
Fortunately, we have a pretty good guide as to what we should do with those ballots. As we all know, this race was equally tight in 2006. That year, there were some 21,000 outstanding votes, and about 2,600 got rejected, or a little over 12%.
Pryce led by about 3,500 votes before the outstanding votes were counted. Her final margin was just 1,054. So if there were about 18,400 votes counted after rejections, that means Kilroy won those by about a 13% margin.
If similar numbers were to hold true this year, Kilroy would gain more than enough votes to beat Stivers – about 3,300 by the back of my envelope (or 1,400 if you double the rejection rate). But there are a few things to be aware of:
Last cycle, the NYT said that the outstanding ballots were split about evenly between absentees and provisionals. The former tend to have a much lower rejection rate than the latter. This time, news accounts have been referring to the outstanding 27K ballots as comprising only provisionals, which means the rejection rate will likely be higher (which is why I suggested doubling it in the hypothetical above).
News articles also are unclear about whether all of those 21K outstanding votes in 2006 were in OH-15 only or in Franklin County as a whole. If, as I’m speculating this year, only half were in the 15th, then Kilroy won them by something more like a 27% margin, rather than “just” 13%.
Could there really be fewer outstanding ballots in a presidential year than in a mid-term? It’s possible, if absentees have already been counted (as I believe they have), but were not at this stage in 2006.
And one more note: Before the outstanding votes were tallied in 2006, Kilroy led in Franklin by three points (51-48), rather than the five she leads by now. So that’s good news.
In any event, take heart: If the 13,500 figure is correct, even if half of those ballots get thrown out, and even if Kilroy only takes the remainder by a 10% margin, she’d still win (albeit by fewer than 100 votes). I think those are pessimistic projections, so I think Kilroy has a good shot, assuming my math is right.
RandySF has more in the diaries.