A Tight Election May Be Tangled in Legal Battles
Two court rulings barring the Wisconsin voter ID law that
Gov. Scott Walker signed last year are being appealed by the
By ETHAN BRONNER
Wisconsin State Journal, via Associated Press
September 10, 2012
The November presidential election, widely expected to
rest on a final blitz of advertising and furious campaigning,
may also hinge nearly as much on last-minute legal battles
over when and how ballots should be cast and counted,
particularly if the race remains tight in battleground
In the last few weeks, nearly a dozen decisions in federal
and state courts on early voting, provisional ballots and
voter identification requirements have driven the rules in
conflicting directions, some favoring Republicans demanding
that voters show more identification to guard against fraud
and others backing Democrats who want to make voting as easy
The most closely watched cases - in the swing states of Ohio
and Pennsylvania - will see court arguments again this week,
with the Ohio dispute possibly headed for a request for
emergency review by the Supreme Court.
In Wisconsin, the home state of the Republican vice-
presidential candidate, Representative Paul D. Ryan, the
attorney general has just appealed to the State Supreme Court
on an emergency basis to review two rulings barring its voter
ID law. But even if all such cases are settled before Nov. 6
- there are others in Florida, Iowa and South Carolina - any
truly tight race will most likely generate post-election
litigation that could delay the final result.
"In any of these states there is the potential for disaster,"
said Lawrence Norden of the Brennan Center for Justice at New
York University School of Law. "You have close elections and
the real possibility that people will say their votes were
not counted when they should have been. That's the nightmare
scenario for the day after the election."
In the 2000 presidential election, a deadlock over ballot
design and tallying in parts of Florida led the Supreme
Court, in a 5-4 vote, to stop a recount of ballots, which led
to George W. Bush defeating Al Gore. Since then, both parties
have focused on voting procedures.
The Obama campaign, for example, brought suit in Ohio over
its reduction of early voting weekends used more by blacks
than other groups.
Republicans have expressed concern over what they call voter
integrity. They say they fear that registration drives by
liberal and community groups have bloated voter rolls with
the dead and the undocumented and have created loose
monitoring of who votes and low public confidence in the
system. They have instituted voter identification rules, cut
back on early voting and sought to purge voter lists by
comparing them with others, including those of the Department
of Homeland Security.
Judicial Watch, a conservative organization aimed at reducing
voter fraud, says it has found that voter rolls last year in
12 states seemed to contain an ineligible number of voting-
age residents when compared with 2010 census data. It is
suing both Indiana and Ohio for failing to clean up their
rolls in keeping with their obligations under the National
Voter Registration Act.
Democrats worry about what they call voter suppression. They
say that voter fraud is largely a myth and that the goal of
the Republican-led laws and lawsuits is to reduce voting by
minorities, the poor and the young, who tend to vote more for
At the Democratic National Convention in North Carolina on
Thursday, Representative John Lewis of Georgia expressed his
party's view on voter-related Republican-led laws when he
compared them to poll taxes and literacy tests used to
prevent blacks from voting in an earlier era.
"Today, it is unbelievable that there are Republican
officials still trying to stop some people from voting," he
said. "They are changing the rules, cutting polling hours and
imposing requirements intended to suppress the vote."
Courts have taken a mixed view of the two sides' claims.
Voter ID laws have been both upheld as fair and struck down
as discriminatory. In Pennsylvania, a state judge upheld the
voter ID law, and the State Supreme Court will hear appeal
arguments on Thursday.
Elsewhere recently, Democrats have won more than they have
lost, but appeals are forthcoming. A federal court agreed
with the Justice Department that Texas' voter ID law was
discriminatory and also struck down the state's curtailment
of voter registration; in Ohio, early voting has been
restored and rules restricting voter registration drives have
been struck down. The Ohio case is under appeal to the
Federal Court of Appeals for the Sixth Circuit under
expedited review. Texas will also appeal but not in time to
affect this election. A Justice Department challenge to South
Carolina's voter ID law is in federal court.
In Florida, a federal court ruled last month that a year-old
state law that reduced the number of early voting days to 8
from 12 could not be enforced in 5 of the 67 counties that
are covered under the federal Voting Rights Act of 1965. But
the court suggested that extending the hours of voting over
the eight-day period in those five counties would satisfy the
federal requirements. Gov. Rick Scott, a Republican, was able
to persuade election officials in four of the counties to
extend their daily hours, but the supervisor of elections in
Monroe County, which includes the Florida Keys, refused,
saying that the county would maintain an early voting period
of 12 days.
One issue that is likely to lead to lawsuits after Election
Day is that of provisional ballots. Under federal law, anyone
whose identity or voting precinct is in doubt can ask for a
provisional ballot at any polling station and then has a
number of days to return with the required documentation to
make that vote count.
Because there are thousands of voting rolls and precincts in
the country, and because Americans move and often fail to
register their new addresses, such problems are common. Poll
workers may also fail to direct a voter to the right precinct
- there can be multiple voting precincts in the same voting
hall - or fail to fully check that a provisional ballot has
been filled out properly.
In the 2008 election in Ohio, 14,000 provisional ballots were
discounted through a combination of voter and poll worker
error. The recent federal suit in Ohio was aimed at giving
the voter the benefit of the doubt by officially blaming poll
workers. The court ruled that unless a poll worker
demonstrates that a voter specifically defied instructions,
provisional ballots with purely technical faults will count.
That decision is under appeal.
"Ohio is a real mess," Tom Fitton, the president of Judicial
Watch, said in explaining why his group was suing the state
to clean up its voting rolls. "It has terrible maintenance
procedures. If the results are close there, both sides are
going to be screaming about it."
The same may be true in Florida, the site of the 2000
debacle. There are still numerous overlapping problems there,
and 5 of the 67 counties fall under federal oversight because
of a history of racial discrimination, leading to the
creation of two sets of practices and more confusion.
A federal judge recently halted Florida's Republican-voted
restrictions on voter registration groups there, calling them
"harsh and impractical." The number of early voting days has
been reduced in a vast majority of counties, but the number
of overall hours has remained the same, as each voting day
has been lengthened. Many predict confusion, and others see
the issue lingering long after Election Day.
"If the vote in Florida is anywhere near as close as it was
in 2000, then I think that the gates may be open to a flood
of litigation," said Bob Graham, a former Democratic senator
and governor of Florida.
There are also likely to be disputes over poll station
monitoring. True the Vote, a conservative group, says it is
training one million citizens as election observers to make
up for what it says is a lack of poll workers.
Catherine Engelbrecht, the president of True the Vote, said
the job of those trained would be to "observe, document and
report on activities inside the polls that are not in keeping
with state law."
Two groups on the other side of the political spectrum, Demos
and Common Cause, are issuing a report on Monday, "Bullies at
the Ballot Box," that warns of "a real danger that voters
will face overzealous volunteers who take the law into their
own hands to target voters they deem suspect."
The voters that the groups say they are most worried about
are members of minority groups.
Lizette Alvarez contributed reporting.
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