A reader tipped me off to an issue that's come up with crossover voters in Ohio. It seems that some Republican voters have bragged online that they voted Democratic ballots in the Ohio March 4th primary in order to influence the outcome of the presidential election. Essentially, they wanted to help Hillary Clinton win the Democratic nomination over Barack Obama because they think she's the weaker candidate and would lose against Republican John McCain in November.

The so-called Republican "plot" was instigated by conservative radio talker Rush Limbaugh (at right) who urged Republican voters in Ohio and Texas before the election to cross over for the primary to rig the nomination for the November election. Voters in those states could do this at the last minute because their local election laws allow voters to change party affiliation at the polls.

Here's a post made by one voter who bragged about switching:

Lastly, they had me sign the affirmation about switching parties and supporting the principles of the Democrat party. I said that would be easy, because they don't have any. Everybody got a good chuckle as there isn't a Democrat within 5 miles any direction from where I vote. I then proceeded to cast my vote for Hillary Clinton. Dirty as it felt at the time, I have a feeling I'll be rewarded in the long run.

It turns out that this voter, and others in Ohio, may have broken the law.

Ohio's revised election code includes an election falsification clause (Revised Code 3513.20), which says that if a voter who changes parties is challenged by poll workers as to the sincerity of his change of heart and also signs an affidavit stating that he supports the principles of the party to which he's changing – when in fact he doesn't support them – then he would be committing election falsification. Election falsification is a felony that is punishable by six to twelve months in jail and a $2,500 fine.

It's clear that cross-over voting occurred in large numbers in Ohio this year. The Ohio secretary of state's office doesn't have statistics yet on how many voters crossed parties in the primary (it's still compiling them), but the Cleveland Plain Dealer is reporting that in Cuyahoga County alone, the state's largest county, at least 16,000 Republicans switched parties for the primary.

The statewide numbers of cross-over voters could be large, since the secretary of state's office reports that the number of Democratic ballots cast in this primary as opposed to the number cast in the 2004 presidential primary increased by nearly a million, or 76 percent. (In comparison, the number of Republican ballots cast this year increased by only about 100,000, or 11 percent. These numbers do not include absentee, provisional and overseas ballots, which are still being counted.)

It's unclear at this point how many of those million extra Democratic ballots can be attributed to cross-over Republicans, as opposed to new voters casting ballots for the first time. It's also unclear how many voters crossed over because they sincerely preferred the Democratic options to the Republican ones. But what about those who didn't and broke the law? Would they be prosecuted and would their vote be counted?

Dan Tokaji, a law professor at Ohio State University's Moritz College of Law who specializes in election law, says it's debatable whether Ohio's law is enforceable and says that even if it is enforceable the likelihood that anyone would be prosecuted under it is "infinitesimally small."

First of all, the law pertains only to a voter who was challenged by poll workers as to his sincerity and signed an affidavit swearing to that sincerity. The secretary of state's office told me that poll workers are supposed to have anyone who switches parties at the polls sign such a statement. The Cleveland Plain Dealer also reported that any voter who switches parties must sign an affidavit.

But Tokaji says it's not clear from the law that the poll worker has an obligation to challenge the voter and have them sign such a statement, and many poll workers did not do this.

Tokaji says that under Ohio law poll workers have the ability to challenge a voter if they believe the voter isn't affiliated with or a member of the political party he's claiming to support in the primary. A poll worker can challenge a voter's membership to the party based on which party the voter voted in the two previous election cycles. Once challenged, a voter has to sign an affidavit expressing support for the principles of his new party, which states clearly that committing election falsification is a felony of the fifth degree. But a voter can refuse to sign the affidavit and still cast a ballot, though he must cast a provisional ballot in this case. Either way, it's clear from statements that some cross-over voters made online that some poll workers did not challenge voters who crossed over and did not have them sign affidavits.

But even those who did sign a statement and did so disingenuously would likely not face prosecution, Tokaji says, unless they were blatant about what they did, such as bragging online about it, and could be identified.

"If after doing this the person gets online and says 'Ha, ha ha. I tricked them and signed this statement,' maybe then we could imagine someone being prosecuted," he says.

But even then, he thinks the likelihood that they would be prosecuted is close to nil.

By the way, cross over voting for purposes of affecting an election isn't limited to Republicans. A spokesman for the Ohio secretary of state's office said it always happens in presidential elections and also occurred during the 2006 gubernatorial primary election when Democratic voters crossed over to cast ballots in the Republican primary for Kenneth Blackwell because they thought he would more likely lose in a race against the Democratic candidate for governor.

(Hat tip: Jon Pincus)