Here’s some more info about the provisional ballots that could decide this election. CNN’s legal beagle Jeffrey Toobin says this about the provos:
“Congress did not say how the states were to decide whether the votes cast by provisional ballot are valid. Some states already had provisional ballot laws, and thousands of those votes have been cast in the past. But states have varied widely in what percentage of provisional ballots ultimately are included in the final totals — from 10 to 90 percent. If one candidate is behind by fewer votes than the number of outstanding provisional ballots — and that could happen in at least a few states — the result of the state’s vote probably will not be known for a few days at the earliest.”

Early on this election day, reports from everywhere show incredibly long lines at polling places. And in many, many places, voters will be battling not only impatience and fatigue–and in some cases, bad weather–but disorganized and organized chaos in voting procedures.
The legal situation surrounding voting procedures remains chaotic going into election day. Last night a federal court of appeals panel, on a 2-1 vote (with the deciding vote being cast on procedural grounds) struck down two earlier federal district court rulings that would have banned partisan challenges of voter eligibility in Ohio. In New Jersey, a federal judge ruled that Republican efforts to use old voter registration lists as the basis of polling place challenges violated a 1981 agreement by the national Republican Party to no longer pull this sort of crap. (The impact of this decision is questionable, since GOPers will be in the clear if they don’ obviously use such lists).
But here’s the Big Bertha of brewing controversies, and a big part of the reason the GOP is investing in polling place chaos: the status of “provisional ballots.” Under the grossly misnamed Help America Vote Act of 2002, voters whose names aren’t on polling place registration lists, or whose eligibility is otherwise in question (e.g., because partisan goons have challenged them), will be handed a provisional ballot that legally cannot be counted until after election day, when the voter’s eligibility is adjudicated according to whatever system the jurisdiction has worked out.
Try to wrap your mind around the following number: an estimated 5 percent of votes cast nationally today will be “provos.” That’s more than 5 million votes, and an estimated 250,000 in Ohio alone.

I’ve seen no evidence to suggest that exit polls have been designed to systematically include or exclude provos, but since the networks and other news organizations will be using AP-complied raw vote totals to “adjust” exit poll projections, it probably doesn’t matter. Here’s the bottom line: tonight’s vote totals in many states will in all probability significantly undercount the Democratic vote, not only for president, but for Senate, House, and state and local offices as well. And that means (1) we can count on Republicans to issue victory claims in such cases, as in Florida in 2000; and (2) the adjudication and counting of provos could very well be the ball game, and will certainly be the subject of post-election day legal maneuvering and local election board shenanigans.
Decisive Democratic margins of victory, even without the provisional ballots, are about the only way this scenario can be avoided.

Sometimes you just have to hate it when you’re right. I went a little over the top a few days ago, and predicted that Republicans would respond to Democratic and civil rights attorneys’ efforts to stop their voter suppression campaign by “pretending their goons are being intimidated and harassed.”
Sure enough, Josh Marshall reports that robo-calls in the Philly suburbs are telling voters that Democratic “trial lawyers” are trying to intimidate Republican campaign workers through lawsuits and such.
The “campaign workers” we are talking about are, of course, trying to intimidate and harass Democratic, and especially minority, voters.
Part of Karl Rove’s M.O. is to pull deliberately outrageous stunts and then use the opposition’s outrage to suggest moral equivalency between the two parties.
But this is even worse: arguing that those poor, bedraggled GOP vote suppressors are actually victims whose plight should command sympathy.
Unbelievable, but it’s happening.

If I might stand back for a moment from all the last-minute hysteria and offer a big picture observation, it seems clear that both the photo finish in this presidential election, and the incredibly savage tone of so much of the campaign, go back to a momentous decision that George W. Bush and his handlers made not once, but twice, since he took office.
Upon becoming president in the most controversial decision since 1876, and having lost the popular vote, Bush could have governed in a way that reflected a genuine commitment to bipartisanship, and a genuine humility about the lack of any real mandate for the conservative ideology that, after all, he mostly hid during the 2000 campaign. But he chose otherwise, and on September 10, 2001, looked well on his way to being a one-term president.
After 9/11, Bush had a second opportunity to unite the country, move beyond his conservative base, and maybe even get a few important things done outside a right-wing agenda of perennial tax cuts for the wealthy. But instead, he saw in the understandable preoccupation of the electorate with national security a path to re-election based on even greater partisanship, suppemented by an audacious effort to reward powerful constituencies and use the prerogatives of office to entrench himself and his party through any means possible.
From beginning to end, Bush has sought to do something which no major party presidential candidate in living memory has succesfully done: win by abandoning the political center altogether.
Now, many people on the Right, and even some on the Left, will tell you this supreme gamble is admirable because it shows Bush, Cheney and Rove would rather stick to their principles than compromise. But Bush’s re-election tactics show otherwise: they have heavily depended on things that have nothing to do with conservative principle, including relentless efforts to smear his opponent and distort his record and platform; appropriation of religious and patriotic symbols; deliberate promotion of divisive and phony cultural controversies; scare tactics that warn voters that a change of administration could lead to their fiery deaths; and construction of a cult of personality aimed not simply at mobilizing conservative voters, but at whipping them and their opponents into a frenzy of passion and hate. They’ve done this because it’s the only way they have a chance of winning without compromise or quarter–of elevating “our team” over “their team” as though this was the Thirty Years War rather than a democratic election. And the Republican leadership of Congress, and increasingly, Republicans around the country, have adopted the same savage approach.
These thoughts occur to me because part of my day job is to think beyond the election to what Democrats and the country as a whole can do to deal with two immediate crises–in Iraq and in the federal budget–and innumerable long-range challenges ranging from the global economy to climate change to the baby boom retirement, in an atmosphere of anger and mistrust that exceeds anything I’ve ever seen.
If there is a purgatory, lots of us will be doing some hard time to cleanse our souls of the nastiness of this campaign. Lord knows I haven’t felt this partisan in my life, and I’ve been an obsessive political junkie since 1960. But if anyone should be fearing actual hellfire for political sins, it’s the president and his people, who have deliberately, with malice aforethought, engineered this situation, in the pursuit of raw power.
Should Bush win his big gamble, there’s absolutely no reason to believe it will lead to anything other than more of the same.

I just did a large conference call with DLC elected officals from around the country, and picked up a couple of interesting tidbits:
(1) One influential Iowa Dem said Democrats”absolutely cleaned their clocks” in early voting in that state.
(2) Another influential Dem from South Florida reported that minorities weren’t the only ones to heavily participate in early voting there; the “condo vote”–strongly pro-Democratic elderly voters in places like Broward County–also heavily voted early, with Dem operatives on hand with chairs and bottled water to help participants deal with long waiting lines.

Now there are two federal court rulings in Ohio declaring the state’s law allowing party reps to challenge voter eligibility at the polls unconstitutional, as a judge in Akron echoed a Cincinnati judge’s ruling late last night. GOPers are still trying to get a federal appeals court to intervene and overturn the rulings, but now they won’t have the excuse of divergent decisions at the district court level.
For once, maybe the good guys will be able to run out the clock.

If you’ve gotten as obsessed as I am about the legal and political maneuverings over voter suppression in the Buckeye State, you should be aware there’s now a blog up totally devoted to the topic.

Political scientist Bill Binning of Youngstown State University told USA Today that Kerry has a good chance to win Ohio, but then said: “I don’t know if it’s going to be within the margin of litigation.”
Pretty funny, eh? Funny like Moe hitting Larry in the head with a mallet.

The legal situation with respect to GOP plans to challenge Democratic and/or minority voters in Ohio and elsewhere has gotten as frenzied as the election itself.
In the wee hours of this morning, Ohio federal district judge Susan Dlott ruled that the state’s law allowing party representatives to challenge voter eligibility at the polls is unconstitutional. Even though the suit only involved voter challenges in Hamilton County (Cincinatti), the constitutional ruling would, if it stands, ban such challenges statewide. A separate ruling by a different federal judge is expect today, involving Summit County (Akron). The state GOP, natch, is asking the federal court of appeals to reverse Dlott’s ruling, and could be aided in the appeal if there’s a different outcome in the Summit case.
Meanwhile, in a separate case with potential national impact, a federal judge in New Jersey will hold a hearing today on a Democratic suit alleging that the GOP’s voter challenges in Ohio and other states violate a 1981 consent order by the national Republican Party agreeing to abandon such efforts in the future, after evidence the GOP had engaged in minority voter intimidation in the Garden State.
Litigation this close to election day is obviously unusual, but better now than on November 3.

It’s no secret that many people in both campaigns think that Wisconsin could turn out to be the ballgame, and that’s probably why the GOP is becoming most brazen in the Cheese State in voter supression strategies.
Having been slam-dunked by Milwaukee officials who ruled against their effort to challenge thousands of mainly-minority voters in that city, Republicans have ramped up their claims to argue that 37,000 Milwaukee voters are registered with erroneous or non-existent addresses.
Their case, like the one they lost last week, is based on the very questionable tactic–the one that led to a judicial consent agreement ruling this out back in the 1980s–of sending mail to targeted minority voters and representing undeliverable mail as indicating voter fraud.
In other words, having lost the legal case, the Wisconsin GOP is resorting in a big way to a political case that it’s justified in challenging minority voters in Wisconsin, and in tainting any adverse result in the state.