Election Suits Are Filed Early and Often

In the presidential election of 2000, lawyers did not become central players until after the polls were closed. This time, they are not waiting.

With polls showing the election still up for grabs, and the memory of the battles in Florida four years ago still fresh, Democrats and Republicans have each mobilized battalions of lawyers, more than 10,000 for each party, to seek any advantage allowable under the nation’s patchwork of election laws.

Already, about two dozen lawsuits have been filed in the most closely contested states. Virtually every day in the last two weeks has brought a ruling that could tilt the balance in a close contest.

The most recent came Wednesday afternoon, when a federal district judge in Cincinnati temporarily blocked Ohio’s secretary of state, a Republican, from proceeding with mass hearings to challenge the validity of about 20,000 new voter registrations, mostly in the heavily Democratic Cleveland area.

Republican Party officials said the registrations were fraudulent after they mailed letters to newly registered voters and received many back, unopened. The party filed challenges against the voters whose mail was returned.

Democrats then went to court, saying returned mail was not proof that people were ineligible to vote and that the Republicans were trying to “discourage and intimidate eligible voters.”

Under Ohio law, challenged voters have a right to counsel and may introduce evidence and cross-examine witnesses. But election deadlines do not seem to provide time for that. With 17,717 challenges in Cuyahoga County, “with no breaks, the board of elections can complete the hearings by holding one every 15 seconds,” the Democrats said in their suit.

In her ruling, U.S. District Judge Susan Dlott barred the challenges from going forward before she could hold a full hearing Friday. Ohio Secretary of State J. Kenneth Blackwell could try to have the ruling overturned by a higher court.

In Florida, meanwhile, litigation over ballot issues has reached the state Supreme Court.

There also have been major cases in Colorado, Iowa, Michigan, New Mexico and Pennsylvania -- all states where the outcome of the race between President Bush and Democratic Sen. John F. Kerry could be close. The litigation comes about in part because “we are much more aware of the problems, the defects of the system” since the contested election of 2000, said New York University law professor Richard Pildes.

At the same time, “we have done only a marginal amount to improve” the system, he said. Indeed, some of the attempted reforms since 2000 have generated lawsuits.

Legal issues have become so thick on the ground that Ohio State University’s Moritz College of Law in Columbus has begun publishing a daily status report on election-related court cases.

Ohio and Florida are “the two states most likely” to have litigation that could tip the balance of the election, said professor Edward B. Foley, who directs the election-law program at the school. Iowa has emerged as “the third most likely litigation-significant state,” he said.

“There is a 100% chance of problems,” said Richard L. Hasen, a professor at Loyola Law School in Los Angeles who is also coauthor of a textbook on election law and the administrator of an election-law blog. The odds of a problem significant enough to delay the outcome are 1 in 10, he estimates -- a figure “high enough to worry about, given what is at stake and our past history.”

So far, the biggest issues being taken to court appear to be voter registration challenges, as in Ohio, and the procedures to allow provisional ballots -- votes cast by people whose names do not show up on the registration list when they arrive at their polling place.

Provisional balloting was one of the key reforms to come out of the chaos of the 2000 vote count. A federal law passed after the Florida recount, the Help America Vote Act, requires all states to allow such ballots. The idea was to address claims that thousands of people had been improperly denied the right to vote that year because of clerical errors.

But although provisional ballots ensure that more people can vote, they also guarantee a slow count in a close election.

In many states, election officials will not even know next Tuesday how many provisional ballots they have. And the legal issues over which provisional ballots to count -- and how -- could make hanging chads look simple.

One leading issue that has been fought out in several states is whether voters who show up at the wrong precinct can cast a provisional ballot.

At least 17 states allow voters to do so.

In other states, including Ohio and Florida, election officials have said that provisional ballots can be used only by voters who are at the right precinct but not on the registration list.

The League of Women Voters, the American Civil Liberties Union and the Democratic Party have gone to court to challenge those more restrictive rules. Several courts, including the federal appeals court with jurisdiction over Michigan and Ohio, have ruled against them, as has the Florida Supreme Court.

In Iowa, state Atty. Gen. Tom Miller, a Democrat, issued an opinion earlier this month that voters casting a provisional ballot were entitled to have their vote counted if the voter was eligible and voted in the proper county. Five Iowa voters sued, saying the ruling violated Iowa law. A state court in Des Moines took up the issue last week and is expected to rule soon.

Voter registration challenges and provisional ballots intersect, Foley said.

“If an individual is stricken from the rolls before election day, then the individual casts a provisional ballot, rather than a regular ballot,” he said.

Foley also noted that after election day, voting officials will have only a limited amount of time to resolve ballot disputes. The two key dates are Dec. 7, the deadline under federal law for states to resolve any controversies concerning appointment of electors to the electoral college, and Dec. 13, when electoral college members will meet and vote in each state.

If the number of provisional ballots in a state exceeds the victory margin, the issue of which provisional ballots should count could go to the U.S. Supreme Court, Hasen said.

Still, he said, the early court skirmishes may be useful for an already confused process. The nation would have benefited in 2000 if there had been a court decision on Florida’s now-infamous butterfly ballot before voting took place, Hasen said. “It is good we are having the litigation before the election.”

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Litigation over provisional voting

All states are now required to allow voters to cast ballots even if their names do not appear on a polling place’s roster. Once certified as valid, provisional ballots are counted after the election and may delay the final tally. Here’s a look at some legal disputes over the ballots:

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Federal law

The federal Help America Vote Act requires all states to allow provisional voting. It was passed in response to the 2000 presidential election irregularities in Florida.

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Two swing states

The U.S. 6th Circuit Court of Appeals has ruled that voters can cast provisional ballots only in their precincts. The ruling covers Ohio and Michigan.

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Iowa

A state court in Des Moines took up the issue of provisional ballots last Thursday. A ruling is expected soon. Democrats are arguing that voters should be able to cast provisional ballots at any precinct in their county -- the rule in California and many other states.

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Source: Times reports