AMY GOODMAN: An hour or so later, John Kerry’s running mate, John Edwards, took to the stage in Copley Square to address their supporters.

JOHN EDWARDS: It’s been a long night, but we’ve waited four years for this victory. We can wait one more night. [cheering] Tonight John and I are so proud of all of you who are here with us and all of you across the country who have stood with us in this campaign. John Kerry and I have made a promise to the American people that with this election every vote would count and every vote would be counted. Tonight we are keeping our word and we will fight for every vote. You deserve no less. Thank you!

AMY GOODMAN: John Edwards’ statement was short and contrasted greatly to the concession speech given by Al Gore four years ago. But John Kerry never addressed his supporters or the nation last night, nor did president Bush. The lights of White House remained lit throughout the night and early morning and rumors spread that Bush was preparing to drive in a motorcade to the Reagan Center to claim victory. As the rumors abounded networks began to report that Karl Rove and other Bush campaign officials were calling them, urging them to declare Bush the winner in another undecided state, New Mexico. That state’s governor, Democrat Bill Richardson refused to give the state to Bush, saying all of the votes were not counted. Bush never did appear at the Reagan Center. Instead at about 5:00 a.m., his chief of staff Andrew Card addressed the crowd.

ANDREW CARD: I wanted to thank all of you for staying up so late with us and good morning. I’m Andy Card, I’m president Bush’s chief of on with at least 286 electoral college votes. And he also had a margin of more than three-and-a-half million popular votes. President Bush’s decisive margin of victory makes this the first presidential election since 1988 in which the winner received the majority of the popular vote. And in this election president Bush received more votes than any presidential candidate in our country’s history. Republicans also scored other great victories in this election. We won important victories, adding to our majority in the House, and adding to our majority in the Senate. In Ohio, president Bush has the lead of at least 140,000 votes. The Secretary of State’s office has informed us that this margin is statistically insurmountable, even after the provisional ballots are considered. So president Bush has won the state of Ohio!

AMY GOODMAN: So, four years after the 2000 election scandal, the country is now faced with another apparent contested election. This time, Bush appears to hold the decisive lead in the popular vote and the democrats fight to win at the electoral college. Ohio now becomes ground zero. Americans will become very familiar with the term “provisional ballots.” We turn now to professor Donald Tobin who teaches law at the Moritz College of Law at Ohio State University. Welcome to Democracy Now!

DONALD TOBIN: Thanks for having me.

AMY GOODMAN: Well, professor Tobin, explain what provisional ballots are and how does Ohio have so many of them?

DONALD TOBIN: Well, Ohio actually has two types of provisional ballots. We’ve had provisional ballots for some time if a voter comes to the voting booth and is not on the registry because they’ve moved or something like that. But there was also the passage of the Help America Vote Act after the 2000 election and that provides that all over the country if a voter shows up to the polls and says that they are registered that they must be given a provisional ballot. So these are people who for some reason or other don’t appear on the election rolls or have some other problem and they’re allowed to cast what are called provisional ballots. We still have to determine whether those ballots will actually be counted.

AMY GOODMAN: So, who has these provisional ballots?

DONALD TOBIN: They’re cast at your election polling place, each precinct. So this moment, there are — they are I assume being bound and securely transferred to wherever — wherever they’ll be analyzed and counted, but you actually cast them at your polling place.

AMY GOODMAN: Right now, they say, the democrats say that the provisional ballots number something like 250,000. And in fact, Ken Blackwell, the conservative republican secretary of state, agreed.

DONALD TOBIN: I hadn’t heard that the secretary Blackwell agreed there were 250,000. We’ve been estimating that there would be somewhere between 150,000 and 250,000 so that doesn’t surprise me.

AMY GOODMAN: So what is the process that would then take place? Secretary of state Ken Blackwell as we heard at the top of the program said that we have to wait, was it 11 days?

DONALD TOBIN: That’s what he says. I’m not actually sure. I think over the next couple days we’ll hear a lot of different interpretations of Ohio law, but his position is that over the next 10 days we will examine the provisional ballots to determine whether they are valid or not and on the 11th day we will count all the ballots determined to be valid. I think it really doesn’t matter one way or the other. What is important is that the ballots are counted. I think America would prefer they be counted sooner rather than later, but in any event, nobody is talking about not counting a vote. It’s just when.

AMY GOODMAN: Well, let’s hear what Ken Blackwell, the secretary of state of Ohio, had to say last night on CNN.

KEN BLACKWELL: Well, none of the provisional ballots are counted, and they won’t be counted, until the 11th day after the election, Wolf. We have very clear laws on how to handle those ballots. And remember, there are overseas ballots from our military and others that only have to be postmarked today, and so we have a 10-day window for all of those ballots to get in. This is a very deliberate and conscious process, and so, you know, I tell everybody just take a deep breath and relax. We can’t predict what the results are going to be. We can only guarantee you that you’re going to get an honest and fair count through our bipartisan system.

AMY GOODMAN: Ohio Secretary of State, Ken Blackwell speaking earlier this morning on CNN. Your response to that, professor Tobin?

DONALD TOBIN: Well, you know, I think Blackwell has put out his view of the law, which is that the next 10 days is when we’ll look at the ballots. I think he’s right to say we need to have a careful and deliberate procedure that we move forward so we don’t have a decision that’s not trusted by the people. And, so, you know, I think it’s a positive thing. Let us take a look at these ballots, count the ones that need to be counted. I think if we move the process a little faster, it wouldn’t hurt anything. But at least secretary Blackwell believes Ohio law prohibits it. I think Ohio law gives him a little more discretion than that.

AMY GOODMAN: Can you talk about the absentee ballots? And exactly where they’re coming from?

DONALD TOBIN: Well, there are two types of absentee ballots, as you know. One are absentee ballots that come from overseas, and one are absentee ballots that are cast by people who simply can’t be in Ohio. The ones that are cast from people who can’t be in Ohio or who are ill had to be in by today. But any ballot cast from overseas has 10 days to get here. So then that would also be counted, presumably on this 11th day. In fact, all of our votes are not counted until the 11th day as I understand it. The vote I cast today in Ohio is not official until the 11th day either. So I don’t know. It seems like a lot of it is fluid at the moment, but I think secretary Blackwell’s point that all our votes should count and we should do it in a deliberate way is a strong one.

AMY GOODMAN: And military absentee ballots, how do there he work?

DONALD TOBIN: Well, the military absentee ballots are sent out and the military has — that ballot has to be postmarked by yesterday and they have 10 days to get those in and then they’re processed like all other ballots are. So nothing special except that they, because they are overseas, have this 10-day window to get the ballot back.

AMY GOODMAN: I remember in the 2000 election when questions were raised about military absentee ballots coming in, when they saw that some of the postmarks were well after election day, and then the republicans, when democrats cried foul, republicans saying, are you trying to prevent our soldiers from being counted?

DONALD TOBIN: Well, you know, Ohio law is pretty clear, and I think they had just like I had, a day where I had to vote and had to vote by, so I would be surprised if there was any attempt to let — to extend that. Now, Ohio, unlike Florida, would not have the same number of absentee ballots. There are not nearly as many military who reside in Ohio as they do in Florida. So I’m not sure that it’s going to be a huge number of military ballots in any event.

AMY GOODMAN: And just to clarify on the provisional ballots, because I think this is something that most people do not understand, although may well become very familiar with, and, also, that Ken Blackwell, the secretary of state, is the secretary of state who talked about the weight of the paper. Was he talking then about provisional ballots or absentee — was he talking then about provisional ballots?

DONALD TOBIN: No he wasn’t. He was actually talking about the weight of the registration form. He said that the registration forms actually had to be on paper of a certain weight. He withdrew that and I think it was smart of him to do so since it appears from other reports that even the official ones handed out by his office didn’t meet the weight requirements he was suggesting were necessary. But that all had to do with registration, they had nothing to do with the actual provisional ballots cast.

AMY GOODMAN: Professor Tobin, if you could stay with us we’re going to break for 60 seconds and then come back. We are talking to professor Donald Tobin, professor of law at the College of Law at Ohio State University.

AMY GOODMAN: As we finish up our conversation with professor Donald Tobin, professor of law at Moritz College of Law at Ohio state university, who now counts the provisional ballots? And will there be ones that are automatically disqualified, perhaps ones that are not filed in the right electoral polling places?

DONALD TOBIN: That’s a great question and a question that parties may or may not be fighting about over the next couple of days. When you sign a provisional ballot, you, on the outside of the ballot, there is a sleeve and you attest on that sleeve to certain things, like I’m a registered voter, I’m over 18, et cetera. Some of those ballots will be just checked against new voter registrations or other things and will be immediately put into a pile to accept. Then there will be other ones where, you know, you can’t find them on the voter rolls. They don’t look like they’re registered. And those will have to go into a pile that will be examined more carefully. They’re then examined by the board of elections in each area and the board has to vote on whether or not to approve or not approve the ballot. And those boards are split 2-2 between republicans and democrats.

AMY GOODMAN: What will it mean for Ohio that you will soon have an army of democratic and republican lawyers descending on Ohio to start investigations?

DONALD TOBIN: Well, we’re used to an army of people descending on Ohio. I think the presidential candidates and vice-presidential candidates were here almost 100 times, so we’re used to that here. And it may keep a law professor very busy but I think the every day citizens are not going to have much impact from this. I think this is a lot different than what happened in Florida, at least for the provisional ballots. There may be fights about whether to count or not count the provisional ballot, but I think that the structures are in place to deal with these issues. So I don’t anticipate at least the Florida-level chaos.

AMY GOODMAN: Professor Donald Tobin, I want to thank you for being with us, professor of law at the College of Law at Ohio State University.

DONALD TOBIN: Thanks for having me.

AMY GOODMAN: This is Democracy Now! as we turn now to Ohio State Senator Teresa Fedor who has called for the ouster of Ohio Secretary of State Ken Blackwell. Welcome to Democracy Now!, State Senator.

TERESA FEDOR: Thank you.

AMY GOODMAN: Can you talk about the results at this point, the question of the — some 250,000 provisional ballots, the role Ken Blackwell will play, and what you have found through the night and through yesterday around issues of voting?

TERESA FEDOR: Well, this outcome does not surprise me. We’ve been concerned about the provisional ballots in the State of Ohio. I know that I have. It’s under Blackwell’s watch that he needed to mesh the H.A.V.A. — America’s new voting reform law — with Ohio law. And we did not have clear directive as under his watch that we needed to do so. We did not have clear direction from him from the very beginning. He seemed to waiver one way and then another. Last-minute decisions and, basically, yesterday I had discovered that some of the precincts were not giving the provisional ballot out correctly and we needed to make sure that the voter, eligible voters, would be able to get to the correct precinct. That took a little while to straighten out, but you know, we needed to have clear direction from him. It will be very critical that we lay out exactly what should be happening with the count and then also those voters who cast the ballots that if there is any discrepancy that they would be able to get their ballot cast. And counted.

AMY GOODMAN: I’m looking at the Election Protection 2004 website under Ohio. And some of the problems listed, a voter in Cuyahoga county, Ohio, reported holes on the ballot were not properly lined up with names. A voter also reported that many of the pages were out of order, that half the names had no corresponding holes. When a caller tried to bring this to the attention of the presiding judge the caller was shushed and not allowed to discuss the problem with other voters. State inspectors in Ohio reportedly taking names of people at the door, then they go inside and have to be checked off another two times. Long lines and broken machines were frustrating voters due to electronic machines breaking down or an insufficient number of machines. Voters reported waiting for several hours to cast their vote in Youngstown, Ohio. A voter said he and his family waited three hours to vote. A voter in Erie County, Pennsylvania said he waited five hours to vote. Interestingly, we had calls last night from students at Kenyan College who said they waited up to 10 hours to vote, that there were two polling — there were two voting machines. One had broken down for much of the day. A Lucas County voter, and election protection attorneys, obtained a court order in the afternoon giving all Ohio voters who didn’t receive absentee ballots on the — on time the right to cast provisional ballots at their polling places. And it went on to list a number of problems, including several callers from Lucas County, Ohio, reported that one polling station almost was completely out of commission with the scanner broken and long lines forming. There’s an emergency slot on the machine to store ballots, but it was full. Poll workers were removing ballots from the machine and storing them in a brown cardboard box, telling voters that they will be scanned and counted later. A caller also reported there was no plug for a scanner so it was being housed in a separate room, unsupervised. No election protection or democratic poll observers were present. We are also on the line with Paula Ross, who is a member of the Lucas County Board Of Elections. Have you heard of any of these kinds of complaints?

PAULA ROSS: We have had many calls from voters who were concerned about their ballots being put in the privacy chute, because they — because the scanner was jammed. We did assure them that that was secure and that those votes would be scanned as the ballots were closed, and they were scanned as the ballots were closed. We certainly had a lot of long lines and we had a lot of very determined, passionate voters, willing to stand in them. We did have a lot of problems with the ballots jamming machines, but in most cases, when we got — we call them “rovers” — out there to help the booth official, we found that they were either trying to scan the stubs, one official was actually trying to scan the privacy sleeve. So in general, they were operator errors we were able to correct fairly early in the day. The lines were long. We certainly kept our rovers running all day.

TERESA FEDOR: I’d like to respond to that. The optical scan machine would spit out the ballot if there were any stray marks or, you know, someone accidentally put their pencil on one space and started, you know, marking it. It would reject it. So all those ballots that were — would be rejected from that box would not be able to be cast or an individual would not have the opportunity to go and get another ballot and get that one spoiled. And you get up to three tries. So, you know, that step, for the voter, would not be there if, you know, those ballots would be rejected, once they do put that ballot through the machine. The voter would not be able to recast that vote.

AMY GOODMAN: State Senator Teresa Fedor, we’re also joined on the line by Chellie Pingree, President and C.E.O. of Common Cause, a national, nonpartisan advocacy group that’s providing information, updated throughout election day on voting troubles in key states. Can you talk about what you found in Ohio? I was reading from the Election Protection 2004 website.

CHELLIE PINGREE: Well, just to give you an idea, Ohio had some of the highest volume of calls, and we heard a variety of things. I mean, obviously, one of the biggest challenges were the long lines, and no matter what, we had, you know, a lot of very motivated voters who were willing to stand in line, but it’s hard to account for the number of people who just had to go home and go back to work, couldn’t stand in line for that long. In, let’s see, I think it was Franklin County or Hamilton County, I’ve got my counties maybe confused and someone can correct me, but they strictly enforced the five-minute rule, which is sort of an obscure and rarely used law, that is — allows the poll workers to tell people they can only be in the voting booth for five minutes, which is difficult for a lot of people. It takes on average, sometimes nine minutes for people to complete their vote. And so that may have caused some people to not be able to finish their vote or not be able to work with the machines. We had all of the same problems that we heard from states all over the country, which were people who got to the polls and found their names weren’t on the registration list. People who asked for absentee ballots and then never received them. And then in specific places in Ohio, we heard from, we actually talked to people who lived in one housing project who were told if they had any traffic convictions, they would be arrested when they went in to vote. We actually, in that case, got someone to go on the radio and talk about it to people and in one community we know of people decided to eventually go and vote. But there were a lot of, you know, sort of voter suppression activities we heard about, and we will be cataloguing them as early as we can today.

AMY GOODMAN: Can you talk more about the overall picture Chellie Pingree of Common Cause? A lot of people said Florida was 'ground zero'. The focus had shifted to Ohio. But what about Florida and what about the other states?

CHELLIE PINGREE: Well, just to give you a sense, I mean, we got about 190 — close to 200,000 calls. And the voter protection line got another 200,000 calls. So that’s about 400,000 calls that we knew of coming into just two lines around the country. And a significant amount of problems in polling places where they were just unprepared for the number of voters, didn’t have enough provisional ballots in many places, clearly didn’t have enough polling booths. Had people standing in line for too long. And places like Broward County as we all know, there were 60,000 lost absentee ballots, but the story of not receiving your absentee ballot was everywhere, very common with students who said they didn’t receive them, and then we had reports of Broward County from people who said they were one of the people who didn’t receive their absentee ballot. They went in to vote, and were told they had already voted. So we’re continuing to follow up and see if that is a significant number of people. The number of people who said they had registered who had been traditionally registered who weren’t on the rolls was very high. And then the number of stories we got of things that I just explained in Ohio of being told that if you had any convictions, or anyone in your family had a misdemeanor conviction, ever had any traffic violations, you’d be arrested when you went in to vote was spread in a variety of ways. There was even a sign on one street corner in Florida that said exactly that. People who received calls that said, your registration has expired. People who received calls to say, their polling place had moved. There were just a variety of tactics that some of which were under the radar screen and not attributable to anybody, but enough so that it caused a lot of concern. I think that and the combination of just our complete inability to handle those numbers of voters and hard to estimate how many people really just had to go back to work ended up at the wrong polling place, were told they couldn’t vote with the provisional ballot, it will take us an long time to count that.

AMY GOODMAN: Chellie Pingree, president and C.E.O. of Common Cause. What about this discrepancy yesterday? You had all the networks pretty much often talking about the very close race with Bush slightly ahead and then through the day, the exit polling indicating that there was much heavier voting for John Kerry. And all of the networks started to talk about how, somehow, they had gotten it wrong. That the exit polls showed something significantly different than they thought, indicating that a lot of the first-time voters hadn’t been originally polled, et cetera. What about this discrepancy and then it turning out that the exit polls were vastly different from what the vote counts seemed to suggest in places like Florida and Ohio?

CHELLIE PINGREE: I think that’s going to be one of the big questions that everyone is going to be going over today and looking for places where we can determine what possibly could explain that. I know we did on-the-ground exit polling in Ohio and New Mexico and one of our first questions will be, were there discrepancies in what people believed to have voted and what the machine told them? And it’s hard to tally what goes on with electronic voting machines but we got a high number of people who responded and said, you know, this basically made me nervous. A fairly high number of people who said, I pushed one thing on the screen and it literally came up showing another vote. In many cases they said they brought over a poll worker and figured out some way to fix it. I talked to a man who said they got out the manual and tried to figure out what was wrong and — and tried to figure out what was wrong and kept pushing buttons until they got the right thing. We don’t know how many people actual did that and the vote was cast in a wrong way. It will be very hard to measure that except in the places where we or other people were specifically exit polling people and asking them “How did you vote?” and then seeing on the inside what the vote count was.

AMY GOODMAN: Finally, Ohio State Senator Teresa Fedor, where do you plan to go from here? What do you see your role as? Will you continue to call for Ken Blackwell, the Ohio Secretary of State’s resignation? It was interesting, when asked last night, I did not expect that he would say, yes, there are hundreds of thousands of provisional ballots and people just have to sit back and wait the 11 days.

TERESA FEDOR: Well, we will continue to call on Secretary of State Blackwell’s resignation. There have been clear signs all along the way, even a year ago, that he was not going to be, you know, clear. And he was not going to put things in writing. And that this will cause chaos and confusion on election day especially for new voters and even more importantly, poll workers who volunteered for the first time. I’m very concerned about the provisional ballot. I’m concerned about the provisional ballot that, you know, the ballot was in an optical scan situation and would not be scanned right away with that individual voter there, because they are given two more times to fill out a ballot if anything is to go wrong. So, you know, I want to be sure that we protect the right of every eligible voter to get their vote cast and to get their vote counted. And I totally hold Mr. Blackwell responsible for any of these situations that happened yesterday on election day. And I think we need to be very much aware of all the rights that an individual eligible voter has in Ohio and I will be standing right next to them and all along through this process looking at it, trying to figure out a way to get those individual voters’ votes to be counted.

AMY GOODMAN: I want to thank you all for being with us, State Senator Teresa Fedor, speaking to us from Ohio, Chellie Pingree, President and C.E.O. of Common Cause, as well as Paula Ross, member of the Lucas County Board Of Elections. This is Democracy Now!