CINCINATTI -- Seeming to brush aside John Kerry's concession speech, the Ohio Democratic Party has launched a federal court fight over nearly 155,000 provisional ballots by contending a proper accounting of those votes might decide who really won.
In Ohio, Bush now holds a lead of about 136,000 votes over Kerry.
County officials across the state began tabulating provisional ballots Friday.
"Given the closeness of the presidential and other elections," Ohio's provisional ballots "may prove determinative of the outcome," Democrats argue in a legal filing made public Wednesday by the U.S. District Court.
The lawsuit asked U.S. District Judge Michael H. Watson to order Ohio Secretary of State Ken Blackwell to impose uniform standards for counting provisional votes on all 88 counties. Democrats want the judge to take action quickly - before the results of the election are certified.
Watson, who was appointed by Bush, has not set a hearing.
Don McTigue, a Columbus lawyer who filed the lawsuit for the Ohio Democratic Party, said the Democrats have concerns that different standards are being applied from county to county.
"Our action is not tied to some hope of changing the outcome of the election. We're being consistent with the Kerry campaign, and the Democratic Party's interest in seeing all eligible ballots are counted," McTigue said.
Carlo LoParo, a spokesman for Blackwell, defended Ohio's rules for handling provisional ballots as explicit. He said Blackwell, a Republican, is adamant that every valid vote will be counted.
In court papers, the Democrats cite Bush v. Gore - the Supreme Court ruling after Florida's contested election that awarded Bush the White House in 2000 - as a legal precedent for the Ohio lawsuit. That case was decided by a majority of five justices.
"In Bush v. Gore, the United States Supreme Court held that the failure to provide specific standards for counting of ballots that are sufficient to assure a uniform count statewide violates the Equal Protection Clause of the United States Constitution," their court filing said.
In Ohio, Democrats argue, the state lacks clear statewide rules that guarantee provisional ballots are processed consistently from county to county.
Democrats intervened in an existing lawsuit filed by Republicans on election night. That case has been inactive," said Dan Hoffheimer, the Kerry campaign's chief lawyer in Ohio.
"I think the Republicans went to court first to protect their interests. Now, it looks like the Ohio Democratic Party is doing the same. Certainly, as far as I know today, the Kerry-Edwards campaign is not planning to file such a case," Hoffheimer said.
Provisional ballots are special ballots used by voters who believe they are registered but who don't appear on the rolls, those who could not provide proof of identity and others who had moved, but did not update their registration information. Once local officials verify that the voters were indeed registered and that they voted in the correct precinct, their provisional ballot can be counted.
Most of Ohio's provisional ballots were cast in urban areas where Kerry typically fared well. Cuyahoga County had the most - nearly 25,000. About 13,000 of those had been verified as of Wednesday, with about 8,600 of that group deemed valid.
Meanwhile, the presidential candidates from the Green and Libertarian parties have said they will demand a recount of all the ballots in Ohio - which could include a review of another group of votes; 92,672 "spoiled" ballots that recorded no vote for president.
Still, many political experts - including top Kerry campaign operatives - believe Bush's margin cannot be overcome.
"I think the Democrats are more worried about avoiding a controversy in 2006 or 2008," said Dan Takaji, an Ohio State University law professor who is an expert on election law. He views the Democrats' court action as a move to make sure that there are solid, court-approved guidelines for future elections.
"But there's no way the math is going to change," Takaji said. "The margin might shrink as the provisionals are counted, but if you look seriously at the numbers, the outcome won't change."
Gene Beaupre, a political scientist at Xavier University in Cincinnati, saw the suit as an effort by Democratic officials to assuage party loyalists who feel Kerry quit without a fight in Ohio.
There's certainly a feeling out there that people were let down by the leadership," Beaupre said. "All you have to do is look on the Internet, and that sense of disappointment is a political reality among a lot of people who are Internet users."
© 2004 the Plain Dealer