CINCINNATI — Ruling early this morning, a divided federal court of appeals handed Republicans a potentially significant election day legal victory in this fiercely contested state, clearing the way for the party to challenge thousands of newly registered voters.
Plaintiffs' appeals to the U.S. Supreme Court were unsuccessful. Early today, Justice John Paul Stevens, who handles appeals from Ohio, refused a request to stay the 6th Circuit decision.
The decision by the U.S. 6th Circuit Court of Appeals could affect at least 23,000 newly registered Ohio residents whose qualifications Republicans have sought to challenge.
The ruling upheld Ohio's law on voter challenges. It came less than six hours before the 6:30 a.m. scheduled opening of polls here and capped nearly 24 hours of frenzied litigation that had left election officials uncertain of how they would proceed.
"The ball keeps bouncing up and down. We'll do the best we can," said John M. Williams, director of the board of elections in Hamilton County, Ohio's third-most populous county.
Republican Party officials have recruited about 3,500 challengers, many of them lawyers, to go to polling places around the state and question the validity of new voter registrations, particularly in heavily Democratic regions.
The Republicans allege that many of the new registrations are fraudulent, saying that names such as Mary Poppins and Dick Tracy appear on the registration lists.
Democratic leaders deny that any systematic fraud has taken place.
On Monday, two federal district judges, one a Democratic appointee and one a Republican, had barred Republicans from challenging voters, saying that the planned challenges could cause chaos at the polls that would deny people the right to vote.
The 2-1 appeals court majority disagreed.
"Longer lines may, of course, result from delays and confusion when one side in a political controversy employs" challenges "more vigorously than in previous elections," Judge John M. Rogers wrote for the court. But "such a possibility does not amount to the severe burden upon the right to vote" that would justify a court order, he said.
Rogers, who was appointed by President Bush in 2002, was joined by Senior Judge James L. Ryan, who was appointed by President Reagan in 1985.
Appeals Court Judge R. Guy Cole Jr., a 1995 appointee of President Clinton, dissented. Under the Republican plan, he wrote, "partisan challengers for the first time since the civil rights era seek to target precincts that have a majority African American population and without any legal standards or restrictions, challenge the voter qualifications of people as they stand waiting to exercise their fundamental right to vote."
Cole added: "In this case, we anticipate the arrival of hundreds of Republican lawyers to challenge voter registration at the polls. Behind them will be hundreds of Democrat lawyers to challenge these challengers' challenges. This is a recipe for confusion and chaos."
The ruling allowing the challenges vindicated Ohio officials, who had argued to the court that "having federal trial courts rewrite the election laws on election eve is no way to run an election, and is no way to maintain the respect of a citizenry already concerned that lawyers and judges, not voters, decide elections."
Alphonse A. Gerhardstein, the lawyer for Democratic voters who had sued to block the Republican challenges, said he planned to immediately ask the U.S. Supreme Court to intervene.
Earlier on Monday, with tensions rising on both sides, Republican National Committee spokesman Jim Dyke issued a statement accusing Democrats of planning to "systematically file litigation to change the rules in battleground states across the nation and create a sense of chaos."
Dan Sullivan, the attorney who heads what the Democrats call their "voter protection" effort in Ohio, accused the GOP of mounting "consistent efforts to suppress the vote" in the state.
Stanford University law professor Pamela Karlan, an expert on voting rights, marveled at the intensity of the legal contest. "Even with all the notice in the world, this is coming down to an amazing demolition derby of litigation," she said.
In their rulings on Monday, U.S. District Judges Susan J. Dlott in Cincinnati and John R. Adams in Akron had said the Republican plan to use inexperienced volunteer challengers at polling places could lead to voting-day chaos and significantly impede the balloting.
Dlott, who ruled at 1:24 a.m., was appointed by Clinton in 1994. Adams, whose ruling came several hours later, was appointed by Bush in 2002.
Both judges noted that the state already has a mechanism, using election judges at polling places, to avoid voter fraud. Under Ohio law, each polling place is staffed by four election judges, no more than two of whom can be from a single party. One of the four is appointed by each county election board to be the presiding judge, who can rule on challenges to a voter's qualifications.
Under state law, a person may challenge a voter by alleging that he or she is not a U.S. citizen, is not old enough to vote or has not lived in the county for 30 days. Voters who are successfully challenged would still have the right under federal law to cast a provisional ballot, but those would not be counted on election day.
In his ruling, Adams raised the possibility of "random challenges or challenges without cause advanced by members of any political party [that] could result in retaliatory 'tit for tat' challenges at the polling places."
"If challenges are made with any frequency, the resultant distraction and delay could give rise to chaos and a level of voter frustration that would turn qualified electors away from the polls," he ruled.
Dlott, in her ruling, referred to "an enormous risk of chaos, delay, intimidation and pandemonium inside the polls and in the lines outside the door" if the Republican plan went forward.
On Friday, Secretary of State J. Kenneth Blackwell, had issued a news release recommending that all challengers be excluded from polling places because of the controversy that has developed over their role.
But Ohio's top law enforcement official, Atty. Gen. Jim Petro — like Blackwell a potential Republican candidate for governor in 2006 — immediately issued a statement saying Blackwell's proposal was "unlawful."
Dlott noted the conflicting statements in her ruling, asking, "How can the average election official or inexperienced challenger be expected to understand the challenge process if the two top election officials cannot?"
In both cases, individual voters, backed by the Democrats, contested Ohio's law on polling-place challenges. In the case heard by Dlott, Donald and Marian Spencer, elderly African American civil rights activists, challenged the law on the grounds that the Republicans planned to send challengers mostly to heavily black precincts in the Cincinnati area. The plan aimed to suppress minority voting, they alleged.
Dlott said evidence in the case indicated "that 14% of new voters in a majority white location will face a challenger but 97% of new voters in a majority African American voting location will see such a challenger."
In the Akron case, Democrats said the state's vote-challenge law allowed people to be denied the right to vote without an opportunity to be represented by an attorney, rebut evidence or participate in the process other than being interrogated at the polling place.
Both judges referred to previous court rulings that have declared voting to be a fundamental right protected by the Constitution. The Ohio vote-challenge law, which went into effect in 1886, did not protect that constitutional right sufficiently, the judges said.
Two election law experts, professor Edward Foley of Ohio State University Law School in Columbus and Richard L. Hasen of Loyola Law School in Los Angeles, both said it was noteworthy that the two judges advanced similar rationales for their rulings.
"It is quite striking that the reasoning of both judges is the same and they echo one another," Foley said.