The campaigns have already begun fighting over ballots and rules for voter registration.

Who's winning, who's losing, and why.
Sept. 8 2008 4:16 PM

The Ground Game

The campaigns have already begun fighting over ballots and rules for voter registration.

An Ohio woman drops her ballot in a voting box. Click image to expand.
An Ohio woman drops her ballot in a voting box

This presidential election—like the ones in 2000 and 2004—will be won on the ground in a few swing states. So forget the movements in the Gallup daily tracking poll or the Intrade political market. You don't even need to focus on the electoral-college maps at Pollster.com or Electoral-Vote.com. The 2008 election may well be determined by some of the legal and election administration skirmishes going on now in several key states. Here's a quick rundown.

Pennsylvania: In 2004, Democrats successfully kept Ralph Nader off the presidential ballot, fearing he would draw votes away from John Kerry. Kerry beat Bush in Pennsylvania by only two percentage points; Nader's presence on the ballot could well have cost Kerry the state. Nader will be on the ballot again this time in Pennsylvania, but Republicans are now fighting to keep former Republican and current Libertarian presidential candidate Bob Barr off the ballot. There hasn't been any polling of Pennsylvania since late August, and the polling then showed an Obama lead among registered voters and little support for Barr. But the race could have tightened up since then, and the presence of Barr (and Nader) on the ballot could make a difference.

Virginia: Virginia is neck and neck this year, to the surprise of Democrats and Republicans alike. At this point, Democrats appear to have an advantage, thanks to an aggressive voter registration effort by the Obama campaign, which has been especially successful in registering young voters. Republicans have responded to the surge in voter registration by raising the tried-and-true boogeyman of voter fraud. In addition, some local registrars in Virginia have been incorrectly—though perhaps innocently—telling college students who legally register to vote in their college towns that by doing so they "could no longer be claimed as dependents on their parents' tax return … and could lose scholarships or coverage under their parents' car and health insurance." Which candidate wins Virginia could well depend on which campaign is able to turn out its voters.

Ohio: Ohio, too, is very close. Democrats hope to take advantage of a new Ohio law that provides a five-day window in late September and early October for residents to register to vote and to vote absentee at the same time. Republicans say the practice encourages voter fraud. Democrats, meanwhile, are complaining about a new "vote caging" effort and worrying about whether residents who are forced to move because of foreclosure won't be able to cast valid ballots. Remember that a small shift in Ohio votes in 2004 would have handed the presidency to John Kerry.

Colorado: The 2006 midterms in Denver were a true election meltdown. Officials promise that things will be better this time around, but there's been a major battle over the secretary of state's decision to decertify, then recertify, some touch-screen and optical-scan voting machines. The Internet publication Election Law @ Moritz, which tracks election litigation the way a weatherman tracks an approaching hurricane, concludes that because of issues related to voting machines and other factors, if "election integrity groups or political parties see their fortunes resting with Colorado's 9 electoral votes, litigation there will be likely."

New Mexico: New Mexico makes me nervous. A battleground state, New Mexico was the site of allegations of voter fraud and election administration incompetence in 2004. God help us all if the presidential election comes down to the counting of provisional ballots here. An astonishing 12 percent of all votes cast in the primary between Obama and Clinton were provisional ballots, and it took a long time to get them counted. And election-law experts Ned Foley and Tova Wang have warned that "state laws are incredibly vague and incomplete with regard to casting and counting provisional ballots." No doubt armies of lawyers are standing by for deployment in New Mexico if the election is as close this year as it was in 2004, when Bush won by 5,988 votes.

Florida:Any list of battleground states and potential problems would be incomplete without a discussion of Florida. After the 2000 election, political battles in the state have turned to voter registration. Left-leaning voting rights groups have threatened to sue Florida for failing to make enough efforts to register low-income voters. Meanwhile, the state has issued new rules that may be deterring independent groups like the League of Women Voters from registering voters. Once the registration period is over, we can go back to worrying about whether Florida (with many counties having moved to their second or third voting system since 2000) can actually count the votes fairly and accurately—especially with 13 candidates to appear on the Florida presidential ballot and thousands of new voters. I don't take much solace in a headline from the Sun-Sentinel last Friday: "Hunt for Missing Ballots Widens in Palm Beach County."

It all adds up to … a lot of uncertainty. The Obama campaign viewed the primary season as a "game of inches." (Press reports that Clinton beat Obama in Texas and Nevada were incorrect: Obama ended up with more delegates from those states.) Obama won his party's nomination by focusing on the ground war. That and the tremendous voter registration advantage bode well for Democrats.

But McCain's candidacy, remember, was all but dead in the summer of 2007, yet he is now the nominee. And he has responded to Obama's game of inches with his "Hail Mary" pass, Sarah Palin. Whether that's enough to win the game for McCain depends on how well the players perform on the field.

Richard L. Hasen is a professor of law and political science at the UC–Irvine School of Law and is writing a book on campaign finance and political equality. Follow him on Twitter.