1. The Election Day legal battlefield:
Assuming the election stays close, there could be multiple swing states in play, with voter identification and provisional balloting rules so much in flux that the multi-court, multi-issue legal war we suffered through in Florida in 2000 will look simple by comparison.
For example, voting in Ohio in 2008 was marred by all kinds of confusion and fights over thousands of ballots, but the battle ended on election night because President Obama pulled ahead of Senator McCain in the state by such a wide margin that the contested ballots would not have been decisive. This time, Ohio is likely to be much closer, and even with a federal judge having thus far enjoined implementation of new, Republican-sponsored early voting restrictions, confusion persists and the state’s election machinery seems no less subject to breakdowns and disputes than it was in 2008.
Similarly, we know that new voting restrictions in Florida, which were only partially set aside by the courts, are likely to add to the confusion and disputed ballots there.
Other swing states could also cause lots of trouble, leaving us to wonder who won. For example, according to this excellent Associated Press report, in Wisconsin and Virginia, voters who don’t present proper identification at the polls can vote provisionally and still have their ballots counted if they show up by the following Friday with their ID’s. Imagine if we had to wait for that process to play out.