Little noticed by voters, a nationwide melee has broken out pitting liberal and conservative groups in a duel over new laws that could determine who wins close elections in November and beyond.
The dispute, which is being fought in disparate and often half-empty courtrooms in as many as nine states, concerns new state laws and rules backed primarily by Republicans that require people to show photo identification in order to vote and, in some cases, proof of citizenship and identification when registering to vote.
One measure prompted the League of Women Voters to halt its voter registration drives in Florida out of fear of facing criminal penalties. That law, and a similar provision in Ohio that threatened voter registration drives by other groups, was blocked in recent weeks by federal courts.
The legal battle reflects a deep partisan divide, with Republicans arguing that the new requirements are needed to prevent voting fraud and boost confidence in election results, and Democrats charging that they disenfranchise seniors, minorities, students and others who tend to vote Democratic.
Hundreds of thousands of votes are potentially at stake in some of the most contested congressional races this year and the 2008 race for the White House, making the court cases the latest battle in a broader war over election policies that has been raging since the 2000 Florida recount.
One example of the skirmishing came late last month in a federal courtroom in Phoenix, where a Navajo leader, occasionally speaking in his tribal language, testified that thousands of his people would lose their right to cast ballots under a new Arizona law that requires voters to present a photo ID or other proof of identity at the polls.
The leader, Leonard Gorman, testified that many Navajo who spend their lives herding sheep in remote areas cannot fulfill the new requirements because they do not drive, nor do they have mailboxes or even the utility bills that are accepted as alternative forms of identification under the new law.
“This is very burdensome to the elders,” Gorman told U.S. District Judge Roslyn Silver.
The provision had been approved by Republican lawmakers and vetoed by Arizona’s Democratic governor before conservative activists included it as part of a broad anti-immigration initiative passed by voters in 2004.
Gorman was describing a highly localized, narrow slice of the electorate -- about 60,000 voting-age adults living on the reservation. But Native Americans tend to vote for Democrats.
And in a closely fought state, the votes of a handful of Navajo could be decisive.
In 2004, President Bush won a neighboring state, New Mexico, by just 6,000 ballots, and his 537-vote margin in Florida four years earlier prompted both parties to develop finely tuned get-out-the-vote procedures designed to enlist every voter they could.
Republicans had great success enacting new laws after 2004, winning voter identification requirements in Georgia, Ohio, Indiana, Missouri and the city of Albuquerque as well as the Arizona law, while adding the voter registration restrictions in Ohio and Florida.
In some states, the legal wrangling has prompted creative efforts to guard against constitutional challenges.
Missouri has deployed mobile units in vans to issue identification to the elderly, responding to complaints that photo ID is costly or hard to obtain for some voters.
Wisconsin’s Democratic governor has vetoed voter identification legislation approved by the Republican-led Legislature, and the Michigan Supreme Court is expected to rule soon on the constitutionality of a 1996 state law that has never been enforced but would require photo ID at the polls.
Pennsylvania’s Republican-led Legislature approved a voter identification requirement, but it was vetoed by Democratic Gov. Ed Rendell.
Across the country, the strategy on each side is being engineered by national groups that say they are nonpartisan but that are ideologically aligned with either the Republican or Democratic parties.
The leading conservative group is the American Center for Voting Rights, an organization created last year that lobbied for many of the new laws and now coordinates the legal strategy to defend them from challenges. The group’s primary lawyer is Mark “Thor” Hearne, a St. Louis-based veteran of the Florida recount in the 2000 presidential race who served as national election law counsel for President Bush’s 2004 reelection campaign.
The opposing side is somewhat less centralized, with cases being brought by several groups, among them People for the American Way, the Lawyers’ Committee for Civil Rights Under Law, the American Civil Liberties Union and the Assn. of Community Organizations for Reform Now (ACORN). These groups share strategy and have formed a coalition called the National Network on State Election Reform.
The Democratic National Committee has supported lawsuits in some states, and officials say the party is intensifying its efforts to combat the new laws. The party’s national chairman, Howard Dean, last month announced a drive to recruit 7,500 pro bono lawyers and law students to assist in an “election protection program.”
In court so far, challenges to the voter identification laws have met with mixed results. Judges have halted two versions of the Georgia law, but a law has been upheld in Indiana.
Challenges are pending elsewhere.
“With voter ID and registration, this is where the current battles over election practices are now being fought,” said Dan Tokaji, an Ohio State University law professor who publishes the election-law blog Equal Vote.
Late last month, Hearne, the lawyer for the conservative American Center for Voting Rights, scrambled to prepare after a Missouri judge scheduled hearings on that state’s voter identification law.
He lined up a disabled voter who backs the ID law, a supportive state legislator, and a study by two University of Missouri professors with which he intends to counter his opponents’ claims that the law would disenfranchise more than 170,000 voters.
The study, for which Hearne said he paid the professors a “minimal amount,” concludes that fewer than 20,000 registered voters lack a photo ID, and of those, about 6,000 would probably turn out to vote.
Hearne said he was inspired to delve into the details of election law after 2000, when on election day he found himself in court arguing against a move by Democrats to delay the closing of some St. Louis polling sites.
“They were arguing for a plaintiff who wound up to be dead. It was a fiction,” he said. “I thought I had walked into a John Grisham novel.”
Weeks later, Hearne joined GOP lawyers in Broward County, Fla., examining dimpled chads and other disputed ballots in the presidential contest.
Hearne said he did not coordinate with the Republican Party, and he vigorously denied that his goal was to suppress Democratic votes.
A spokesman for the Republican National Committee, Danny Diaz, said the party was closely monitoring the cases across the country but was not directly involved in coordinating strategy.
Still, the party has advised at least one state on election law. In a March e-mail obtained by The Times, the Republican National Committee’s deputy counsel advised an Arizona official that the state was free to require proof of U.S. citizenship for newly registered voters, as the new state law mandates.
The lawyer wrote that the state did not have to follow an opinion to the contrary written by the U.S. Election Assistance Commission, the panel created by the 2002 Help America Vote Act to guide the administration of federal elections.
The Republican National Committee lawyer, Sean Cairncross, wrote to Kevin Tyne, the top deputy to Arizona’s Republican secretary of state, advising that the commission ruling was “simply wrong on the facts and the law.”
“Good to talk to you,” Cairncross wrote atop a list of bulleted arguments against the commission finding. “Here are a few thoughts -- please let me know however else I [can] help.”
Tyne forwarded the e-mail to state Election Director Joe Kanefield, writing simply, “fyi.”
Kanefield said in an interview that the e-mail came because the Republican National Committee had called offering advice, and that Arizona officials had not solicited it.
A party official said the advice was offered to “provide clarity” in an “unprecedented” situation.
In the Phoenix courtroom, opponents of the state law argued that thousands could be disenfranchised by the new identification rules. The state’s lawyers said those estimates were inflated.
A lawyer for the state argued that the voting system was vulnerable to fraud by impersonators and noncitizens; lawyers fighting the new law said there was little to no evidence of past fraud.
One of the lawyers for groups challenging the law, David Rosenbaum, pointed out that the law required no identification from people casting absentee ballots by mail, and that whites were over three times more likely to vote that way than were minorities -- a clear case of discrimination, he said.
Silver on Monday refused to halt the law before today’s Arizona primary, but she asked for more evidence regarding claims that the new registration requirements might violate voters’ civil rights.
Lawyers on both sides expect that whatever she rules will be reviewed by the U.S. 9th Circuit Court of Appeals. Ultimately, the Supreme Court is likely to have the final say on that case and others.
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Republican state lawmakers across the country have sought election-law changes they argue would reduce fraud. Democrats and their allies say the measures are designed to suppress the votes of traditional Democratic constituencies such as blacks, the poor and seniors. Here is a sampling:
Action: Proposition 200, approved by voters in 2004, requires proof of U.S. citizenship when registering and identification when casting ballots.
Result: Voting provisions are being challenged in federal court.
Action: A new law requires voters to present photo ID. Voters without an ID can use a provisional ballot until 2008, when only seniors, the disabled or those with religious objections to obtaining a photo ID will be allowed to cast provisional ballots.
Result: The law is being challenged in state and federal courts.
Action: Republicans have tried to require photo IDs at the polls. A 2005 law was ruled unconstitutional becaue of the difficulty and cost of obtaining an ID. A new law passed this year makes free IDs available, with some restrictions.
Result: A judge temporarily halted the law before elections in July. Litigation is pending.
Action: A new rule set criminal penalties for violating voter registration policies. Critics said this placed a punitive burden on organizations that register voters.
Result: Struck down by a federal judge.
Action: GOP-dominated Legislature passed a law imposing steep fines on voter registration organizations that violate guidelines.
Result: A federal judge blocked enforcement.
Action: A law passed last year requires most voters to present a state-issued photo ID at the polls. The law was challenged by the Democratic Party and other interest groups.
Result: A federal judge ruled in April that opponents failed to prove it was too burdensome.
State: New Mexico
Action: Last year Albuquerque voters approved an amendment to the city’s election law requiring a photo ID when voting in person.
Result: Challenged by the ACLU in federal court.
Action: The GOP-led Legislature has repeatedly approved laws requiring a photo ID to vote, but the bills have been vetoed by Democratic Gov. James Doyle.
Result: Republicans are seeking a state constitutional amendment.
Source: Times reporting