The Supreme Court has so far refused to intervene in the voting rights mess unfolding in Ohio, instead leaving in place a 6th Circuit Court of Appeals ruling that protects early voting rights in the state, but will they be able to much longer?

Just a day before the presidential election and the state’s conservative Secretary of State appears willing to flout the law. On Thursday, voting rights activists filed an emergency motion with the court requesting an order to guarantee that election officials, in a word, do what they promised and not throw out provisional ballots based on being incomplete or improperly completed.

The issue of how the state will count provisional ballots is part of the ongoing legal challenges to changes in the state’s election laws. A trial court and the Sixth Circuit Court of Appeals has already ruled provisional ballots should be considered broadly. But this motion was necessary because, despite agreeing to a broad standard for counting provisional ballots via consent decree and two court orders to enforce those terms, the Secretary of State’s office has instead taken the position that throwing out ballots election officials deem faulty IS complying with the scope of those orders.

From the Columbus Dispatch:

“The bottom line is that (Secretary of State Jon Husted) designed a form that violates Ohio law by improperly shifting to voters the poll workers’ information-recording responsibilities regarding ID to voters, and then he wants to trash votes where there is a problem with the form on the section he misassigned to voters,” said Cleveland attorney Subodh Chandra, who filed the motion.

Husted spokesman Matt McClellan said the Friday directive actually was designed to concur with the Oct. 26 order of U.S. District Court Judge Algenon Marbley in a legal dispute over provisional ballots. “We wanted to make sure we complied with those directions,” McClellan said. Voters will complete the same form they did in the March primary and August special elections. We’re not doing anything new,” he said. “Voters have to provide ID when they vote provisionally.”

What does this all mean? To begin with, the legal challenges to the 2012 presidential election are already on and we could see appellate court rulings on how Ohio counts its ballots well into election day and beyond. And that means it is all but certain that Ohio will be counting ballots well past Tuesday night.

Let’s hope I’m wrong.