More than 27,000 provisional ballots, needed to call the closest congressional race in the country, will wait for either a court ruling today or a tiebreaker vote Tuesday from Secretary of State Jennifer Brunner.

The Franklin County Board of Elections split along party lines in a stalemate last night that will temporarily delay counting those provisional ballots. But the board still expects to reveal and certify the official election results on Nov. 25.

By then, it will have direction from either a court or Brunner. At issue is the outcome of the 15th Congressional District race, in which Republican Steve Stivers leads Democrat Mary Jo Kilroy by fewer than 400 votes. Races for two Ohio House seats, in the 19th and 20th districts, also are too close to call.

The two Republican members of the elections board are backed by an opinion from county Prosecutor Ron O'Brien, also a Republican, who told them that about 1,000 provisional ballots are blatantly flawed and shouldn't be counted.

Those ballots lack the voter's signature, printed name or proof of identification, such as a driver's license number.

"It is crystal clear the deficiency which under the law would disqualify this ballot," said Doug Preisse, chairman of the elections board and the Franklin County GOP.

But Brunner, a Democrat, argues that state law does not require voters to both print and sign their names on the provisional-ballot envelopes or complete an affirmation statement for a ballot to be counted, as long as the board can confirm the identity and eligibility of the voter.

On behalf of Stivers' campaign, two county voters filed a lawsuit Thursday in the all-Republican Ohio Supreme Court seeking an order that the provisional ballots in dispute not be counted.

Yesterday, Brunner had the case removed to federal court and consolidated with a pending 2006 case that deals with provisional ballots. It is being handled by U.S. District Judge Algenon L. Marbley, who was appointed by former President Bill Clinton.

Marbley has called a 9 a.m. hearing for today on a request to have the case sent back to the Ohio Supreme Court to decide, or for a temporary order to halt any processing of provisional ballots until the legal dispute is resolved.

The state's highest court issued a ruling yesterday saying it might suspend its rules and take action if Marbley sends the case back.

O'Brien advised the board to wait for today's court action, then told board members that signatures were absolutely necessary because voters are swearing they're not committing fraud.

The two Democratic members, backed by an opinion from Brunner, argued that such oversights are poll-worker error because they didn't make sure the ballot information envelopes were properly completed.

"I believe it is not a fatal flaw," said William A. Anthony Jr., vice chairman of the elections board and chairman of the county Democratic Party. "We should be processing and allowing as many people as possible to vote."

Brunner is expected to cast the tie-breaking vote on Tuesday if the court doesn't intervene. Under Ohio law, all provisional ballots must be counted as a batch, so the tally for all will await a decision on some.

The board also voted unanimously to refer 13 more cases of possible voter fraud to O'Brien for potential prosecution. A few of those voters cast ballots in two counties, didn't have permanent residency in Ohio, weren't citizens or listed a post-office box for multiple registrations thought to be fraudulent.

bcarmen@dispatch.com

mniquette@dispatch.com

---