The U.S. presidential contest, marked by two dozen lawsuits in the past six months over voter rules including photo ID requirements and limited poll hours, may see a new wave of litigation starting tomorrow over who gets to vote and which ballots will be counted.
Voter rights advocates and lawyers for the candidates may initially head to court to keep polls open longer because of machine breakdowns, to make up for Hurricane Sandy's aftermath, or to bar partisan poll-watchers challenging the rights of some to vote, said Edward Foley, a law professor at Ohio State University. Democrats in Florida yesterday sought to extend early voting hours there, and in Ohio they are challenging last-minute provisional ballot restrictions.
The biggest battles, however, may come after Election Day, and could lead to a replay of 2000 where courts determine the next U.S. president. Disputes over the counting of such provisional ballots in swing states including Virginia, Ohio and Florida would dominate such a scenario, said Jocelyn Benson, a law professor at Wayne State University in Detroit and director of the Michigan Center for Law and Administration.
“Provisional ballots could very likely be the hanging chads of 2012,” Benson said. “The battle over provisional ballots will take center stage where any election is close and a significant number of such ballots have been cast.”
Litigation over such ballots, usually cast when a voter’s credentials are challenged or inadequate, and counted after the polls close, may at the very least push resolution of the race between President Barack Obama and ex-Massachusetts Governor Mitt Romney past Nov. 6. Challenges have already begun, with voter advocates in Ohio Nov. 2 suing over what they said is an attempt by Republican officials there to undermine court rulings on provisional ballots with new identification rules that may confuse voters.
Gore v. Bush
The dispute over which votes to count in Florida in 2000 was resolved by the U.S. Supreme Court, which in a 5-4 vote rejected a recount sought by then-Vice President Al Gore, the Democrat, handing the presidency to Republican George W. Bush. Bush won Florida by 537 votes. If provisional ballots come in to play this year, a delay in determining a winner is likely.
“You can’t have a recount until you do a canvass and you can’t do a canvass until you verify the provisional ballots,” Foley said in an interview. “An election might be too close to call until they go through the process.”
A canvass is the official state tally of the votes cast in each precinct. Provisional ballots are counted if the voter is verified as eligible. In states where ID is required, rules allow voters to provide this identification after Election Day, validating the provisional ballot. Voters not on election rolls because of clerical or other errors will also cast provisional ballots; the votes will be counted if election officials verify a voter is eligible.
The fallout from Hurricane Sandy may spur multiple lawsuits, said Steven Huefner, also a law professor at Ohio State. Voters and their advocates could sue to extend voting hours in states where loss of power or other issues limit access to the polls, he said.
Under federal law, votes cast after the normal hours are considered provisional ballots, he said. If the election is close, litigation may follow challenging the extension, he said.
If a court decides the extension wasn’t appropriate, “these provisional votes won’t be counted,” said Huefner, who along with Foley is part of their law school’s election law research program, which tracks election administration and litigation.
Litigation over provisional ballots may “bump up” against deadlines for resolution of the presidential election, Foley said. Electors meet on Dec. 17, by law, and the disputes have to be resolved before then, he said.
The U.S. Constitution doesn’t provide for direct election of the president. Each state race is considered a separate election, with voters casting ballots for a slate of electors pledged to a certain candidate. In every state except for Nebraska and Maine all electoral votes go to the winner of the popular vote.
The winner of the national popular vote doesn’t win the presidency; the winner of the electoral vote does. The group of electors is part of a Constitutionally enshrined process called the Electoral College. When they meet in December, the electors choose the president.
The 2000 dispute turned on the counting of ballots that had been inadequately punched by voters using machines. When they weren’t punched through, pieces of paper were still attached, called chads. The counting of votes with hanging or dangling chads differed from county to county in Florida, leading to post-election litigation because the margin between Bush and Gore was so small.
“Provisional ballots were created by the Help America Vote Act to solve problems that came up in 2000,” Foley said. “Legislative changes in some states have also increased the use of provisional ballots.”
This includes Ohio, where “significant statutory changes were made that caused an increased reliance on provisional ballots,” he said. In the 2004 elections, about 150,000 such ballots were cast in Ohio; in 2008, the number reached 200,000, Foley said.
The number of such ballots should rise in other states this year, particularly Florida and Colorado, he said.
“I wouldn’t be surprised to see litigation if it’s close enough,” Foley said. “There’s a significant likelihood of that given the track record.”
Recent polls indicate that the presidential race may be too close to call in several swing states, including Florida, Ohio, Iowa and Virginia. The percentage difference between the candidates in polls in those states was close to or within the margin of error.
CBS/New York Times/Quinnipiac University surveys conducted Oct. 23-28 and released Oct. 31 showed Obama, a Democrat, leading Romney, a Republican, by five points, 50 percent to 45 percent, in Ohio; by two points, 49 percent to 47 percent, in Virginia; and by one point, 48 percent to 47 percent, in Florida.
A Wall Street Journal/NBC News/Marist poll published Nov. 1 shows Obama holds a 49 percent to 46 percent advantage in Wisconsin among likely voters, and a 49 percent to 47 percent lead in New Hampshire. In Iowa, the president leads Romney 50 percent to 44 percent.
In Virginia, a legal battle may be looming if the margin is close between the two presidential candidates, said Michael Dimino, a law professor at Widener University in Harrisburg, Pennsylvania. Virginia passed a new voter ID law and may rely more heavily on provisional ballots than in the past, he said.
“Because Virginia is populated enough that its electoral votes matter, if there is a problem, Virginia could be litigated tremendously,” said Dimino, who is co-author of “Voting Rights and Election Law,” published in 2010.
Pre-election litigation that has already taken place may have forestalled battles over provisional ballots, said Rick Hasen, a law professor at the University of California Irvine's School of Law.
Pennsylvania’s new voter photo-ID law was challenged and a court barred enforcement of the provision for this election.
“There could have been a problem in Pennsylvania, but it’s been put on hold,” said Hasen, who writes a blog on election law and is the author of “The Voting Wars: From Florida 2000 to the Next Election Meltdown,” which was published this year.
Confusion in that state may yet lead to post-election litigation. On Nov. 1, the state judge who barred Pennsylvania officials from enforcing the Republican-backed voter ID requirement declined a request that he clear up confusion about the status of the law.
Commonwealth Court Judge Robert Simpson in Harrisburg, a Republican, ruled Oct. 2 that while election officials can request an ID tomorrow, voters without one can cast ballots that will be counted. Last week he rejected a request that he review or supervise the state’s compliance after advocacy groups complained that the state Department of Aging is falsely informing voters that they must have an ID to vote.
Advocacy groups including the American Civil Liberties Union and the National Association for the Advancement of Colored People said in court filings that state officials haven’t properly tailored voter-education efforts to conform with Simpson’s Oct. 2 ruling.
Indiana has also passed a voter ID law that is in effect for the 2012 election, Hasen said. Litigation there is possible “if it’s surprisingly close, Hasen said.
“The Virginia ID law is a little less strict, but there could be some issues there,” he said.
The Pennsylvania case was one of multiple lawsuits in federal and state courts in the U.S. over voter regulations passed by Republican-dominated legislatures since the 2008 election.
The laws included new requirements for voter identification or registration and changes to early voting hours. The laws were aimed in part at fighting voter fraud, proponents contend. Opponents argued they are an effort to limit votes for Democratic candidates.
Over the past several months, the majority of court challenges have been resolved against the laws, or judges postponed decisions until after the election. Judges rejected voter ID laws in Wisconsin, Texas and South Carolina, while upholding the new provision in Tennessee.
Ohio’s law granting more early voting hours to military and overseas absentee voters was found to violate equal protection rules. A federal appeals court also found that Ohio should allow the counting of provisional ballots cast in the wrong precinct if the voter was in the right polling place. The same court rejected provisional ballots cast in both the wrong polling place and wrong precinct.
An Iowa judge blocked the secretary of state there from continuing a purge of possible noncitizens from the voter rolls, while officials in Texas and Florida scaled down similar efforts following the filing of lawsuits challenging the practice.
Long lines or broken machines could lead to lawsuits seeking to extend polling hours beyond the normally scheduled time, said Foley, the Ohio State law professor.
“That’s occurred in the past and sometimes that’s absolutely necessary,” he said.
Campaigns or voting rights organizations may file such lawsuits. These lawsuits can, in turn, lead to more litigation, he said.
“If there’s a court order to extend or an administrative decision, under the Help America Vote Act, any ballot cast must be provisional,” Foley said.
If an extension isn’t statewide, an opponent could consider it an equal protection violation, Foley said, claiming that the court may be showing illegal favoritism by allowing some citizens to keep voting while shutting out others.
“It’s not quite stuffing the ballot box, but that would be a primary litigation concern,” he said.
The 2000 election increased the number of poll watchers and election protection efforts, said Benson, the Wayne State University professor.
“In Michigan and elsewhere there’s a heightened concern about people who might show up on Election Day challenging people’s right to vote,” she said. “There will be a lot of attorneys on hand for both parties, prepared to react to any potential problems.”
This may lead to litigation on Election Day challenging poll watchers who are seen as illegally interfering with voter access, she said.
“Attorneys for one side or the other may go to court to stop voters from being harassed,” Benson said.
The presidential election isn’t the only one where there may be litigation filed on or after Election Day, said Benson, who was the Democratic Party candidate in 2010 for Michigan secretary of state. There are close races on ballot initiatives or congressional seats in multiple states, including the Senate election in Missouri, she said.
In 2008, the dispute over the outcome of the senatorial contest in Minnesota wasn’t resolved for months.
Voter rights advocates have recruited thousands of volunteers, including lawyers, law students and paralegals, to protect access to the polls, said Myrna Perez at the Brennan Center for Justice in New York.
“The Brennan Center is part of the national nonpartisan Election Protection coalition, which has set up a national hot line, 866-OURVOTE, for voters or poll-watchers to call in concerns,” she said in an interview.
Lawyers will be dispatched to file complaints when necessary, said Judith Browne Dianis, co-director of the Advancement Project, which is also part of the coalition. Her organization is focused on Ohio and Florida.
“Those are the ones that give us the most concern,” Dianis said in an interview.
Judicial Watch, a self-described government watchdog group, doesn’t plan any Election Day litigation, said Tom Fitton, its director. The organization has filed lawsuits in Ohio and Indiana seeking purges of ineligible voters in those states, he said.
“We plan to send investigators where any issues are,” Fitton said. “First in line at the courts will be the candidates’ lawyers and the parties’ lawyers.”
True the Vote, a Houston-based group that seeks to recruit poll watchers, also doesn’t plan Election Day lawsuits, said spokesman Christian Adams.
“Our poll watchers gather information on the election, that doesn’t translate into litigation,” he said.
Provisional ballots may not lead to a drawn out legal dispute over election results, as occurred in 2000, Foley said.
“One dynamic may develop, where provisional ballots work as intended and don’t become the problem that the hanging chads were,” he said. “Even if it takes 10 days or two weeks, if they work as designed, we built into the system provisional ballots as a safety valve. They’re a vote like any other vote.”
The margins of victory in the swing states will determine whether lawsuits occur after the polls close, Hasen said.
“The states most vulnerable to litigation are the battleground states,” he said. “If it’s close there certainly will be wrangling -- if the election depends on it.”