The worst thing that can happen Tuesday has nothing to do with either candidate winning. It is the possibility of having no idea who won for several weeks until the Federal courts step in and tell us who will be president. Most of the electorate is old enough to recall experiencing this in 2000, and it's not unduly alarmist to ask if having two out of four elections resolved outside of the democratic process in a twelve-year span – thanks largely to state-level manipulation of the pawns pool of eligible voters by Secretaries of State – would have serious consequences for a country in which political trust and efficacy are already at historically low levels.
So, my concern is not who wins as much as, "How can we avoid having to wonder about who wins?" For reasons that will soon become apparent, the short, vague answer to that question is that one candidate (most likely Obama, based on the current aggregate polling) must cross 270 electoral votes without Ohio. Because there's a very good chance that Ohio won't figure out who won for a couple of weeks at best. Why? Well, first we need some backstory.
After the 2004 elections in which long lines at polling places were a serious problem in Ohio, the SoS at the time decided to offer no-questions-asked absentee balloting. Every registered voter got an application to request one. More than 1,300,000 absentee ballots were requested and mailed out for 2012. Over 1,100,000 have already been returned. But that means that around 200,000 haven't. Stay with me here. Anyone who requested an absentee ballot but does not use it can vote if they show up at their polling place on Tuesday, but they receive a provisional ballot. These ballots are sealed in an envelope and left uncounted until it can be proven that the person did not already vote – for example, by mailing their absentee ballot on Monday, then trying to vote in person on Tuesday. To give ample time for all absentee ballots to arrive by mail, Ohio law states that provisional ballots cannot be counted until 10 days after the election.
To summarize: there could be 100,000-200,000 provisional ballots cast and the state cannot even begin to count them until Nov. 16 at the absolute earliest. If either candidate holds a narrow lead, those provisional ballots could well determine the winner. So we will have to wait. And wait. And wait.
And then eventually the courts will end up resolving the issue. Why? Because Ohio's current SoS is a partisan hack who has decided to defy a Federal court order and issue provisional balloting rules stating that the voter, not the poll worker, is responsible for recording information about the form of ID the voter used when voting in person. As one of the attorneys involved in the copious lawsuits already being filed states:
"The bottom line is that (Secretary of State Jon Husted) designed a form that violates Ohio law by improperly shifting to voters the poll workers' information-recording responsibilities regarding ID to voters, and then he wants to trash votes where there is a problem with the form on the section he misassigned to voters," said Cleveland attorney Subodh Chandra, who filed the motion
In short, Husted is trying to create a reason to discard provisional ballots. To throw them out on a technicality, assuming that some people won't fill out the forms properly. It's the 2012 version of the hanging chad, only the courts have already ruled what he is trying to do illegal.
So. How do we avoid having to care about Ohio on Tuesday night? Because if we need Ohio to determine the winner, we are in for a three-ring circus of unpleasantly long duration. The good news is that there are plausible scenarios that could make Ohio irrelevant. Here's what to watch for on Election Night.
The three key states are New Hampshire, Colorado, and Nevada. Before I launch into the explanation, let me clarify some of the assumptions. I have been as generous to Romney as possible in this scenario, giving him Florida, Virginia, and North Carolina. If Obama wins any one of those three, Romney is basically toast. But I'm going to assume for the moment that Romney wins them and we are faced with an extremely tight race to 270. Even coloring those three large states red, if Obama wins NH, CO, and NV then he cannot lose even if he loses Ohio. Consider a map with those states and Ohio omitted:
In this scenario, Obama is at 253 and Romney at 248. Nevada will almost certainly be Obama's (+6) but the polling is remarkably close in NH (+4) and CO (+9). Winning both would put Obama at 272. Game, set, match.
By winning those three, the only way Obama could lose is if Romney pulls off a surprise/miracle win someplace like Michigan or Pennsylvania. Obama can win without all three – this would require winning Ohio – but Romney cannot win without taking at least one (New Hampshire seems the most likely).
The last NH polls close at 8:00 EST. Colorado wraps things up at 9:00 EST, and Nevada at 10:00 EST. So prepare to be up late, although Obama's poll lead in Nevada is outside of the margin of error and it might be the least competitive of the three.
All other Romney victory scenarios involve the aggregate pre-election polling being wrong by a mile. In the last few elections that has not been the case. To conjure up Romney wins in Michigan, Wisconsin, Iowa, or Pennsylvania requires the assumption that legions of his supporters have been hiding in those states for months, untouched by the polling process. In fact the exact opposite is more likely to be true since older, whiter people tend to be oversampled (and right-leaning). Regardless, I think one of the best outcomes we can have on Tuesday is to have an outcome; not to have another election decided by corrupt, incompetent local election officials and unelected judges.