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The following is an edited excerpt of a posting by Professor Ned Foley of Moritz College of Law at Ohio State University. He is the director of the Web site, Election Law@Moritz.

Let's assume that Ohio's new voter ID is being enforced differently in different counties within the state. Let's assume also that each of these discrepancies would violate state law or the federal Equal Protection Clause.

Even assuming all this, it does not follow automatically that the federal judiciary should block enforcement of the new voter ID law before Nov. 7.

The consequence of being subjected to an excessive ID requirement is the obligation to cast a provisional ballot. Should it turn out that some provisional voters are unable to supply the extra ID after casting their provisional ballots, it is not inevitable that their provisional ballots will not be counted.

Post-election litigation over the differential enforcement of the ID requirement can result in the counting of the provisional ballots if it is adjudicated that their votes were subjected to improperly excessive ID requirements.

The claim is also made that the current differential enforcement of the ID law has a particularly severe disenfranchising effect on absentee voters, who do not have the opportunity to cast a provisional ballot or to supplement their ID submission if what they initially provide is deemed insufficient.

The argument here seems to be that these absentee voters have lost their one and only opportunity to cast a countable ballot if they are subjected to a wrongfully excessive ID requirement.

But this argument seems incorrect — or at least not obviously true.

Absentee ballots, like provisional ballots, record the vote preferences of those who cast them. As long as they are preserved, their eligibility for counting can be considered, and litigated, after Nov. 7. Any absentee ballots that were initially set aside as uncountable for failure to supply adequate ID can subsequently be moved to the countable pile if a court later determines that the way in which the ID law was applied to those absentee ballots was unlawful or unconstitutional.

I don't like the idea of losing candidates attempting to search the pile of disqualified absentee ballots in the hope of finding enough to change the outcome of the election. Nor do I like the idea of courts ruling on such efforts in the post-election environment, given the inevitable suspicion that judges cannot avoid their own partisan preferences.

I am not at all sure that judicial intervention over the next 13 days is preferable to judicial intervention afterwards — except to emphasize the need to let all voters, whether absentee or in-person, record their preferences on a ballot that can be evaluated for eligibility subsequently.