Lawyers for both parties ready to challenge results
COLUMBUS, Ohio — Presidential elections are decided at the ballot box. This one could get a little assistance from the courtroom.
Lawyers for both parties are descending on key swing states, anticipating legal challenges after what could become a razor-thin decision that rests on how, where, and which ballots are counted. Such disputes could provide a coda to an election cycle that has been marked by state moves to limit early-voting days and require voters to provide photo IDs.
In one scenario already generating angst, small county election boards could determine the next White House occupant, with lawyers from both sides hovering over every decision in a replay of the 2000 election.
“We’re getting all kinds of lawyers,” said William A. Anthony Jr., director of the board of elections here in Franklin County. “You got voting rights groups, groups on the right, groups on the left. Some have been here awhile; some come out of the woodwork. They’ll all file lawsuits.”
The legal maneuvering is already starting.
On Sunday in Florida, a judge extended early-voting hours in several counties after the state Democratic Party filed a lawsuit because lines were too long on Saturday for some voters to cast ballots — or, in the case of a precinct in Orlando, voting was shut down for several hours because of a suspicious package.
At one point on Sunday, election officials in Miami-Dade County locked their doors and shut down voting an hour into what was supposed to be a four-hour voting period, according to the Miami Herald. The decision was later reversed, and voting proceeded.
Florida relied heavily on early voting in 2008, but the Legislature limited the number of days this year, leading to massive waits and long lines over the weekend.
Late on Friday in Ohio, Secretary of State Jon Husted, a Republican, issued a new directive telling election boards not to count provisional ballots if a section that is supposed to be filled out by poll workers is left empty. Federal law allows voters to cast provisional ballots when their identity or polling place is uncertain on Election Day.
Attorneys for the Northeast Ohio Coalition for the Homeless are challenging the directive in federal court, saying that it is the poll workers’ responsibility — not the voters’ — to ensure that provisional ballots contain all needed information.
And on Sunday night, the Republican National Committee sent a letter to the Iowa secretary of state asking him to investigate news reports that Democratic operatives encouraged elderly voters to fill out and sign absentee ballots for other family members.
If the election is close, it could mean that the campaigns that have fought on the airwaves, on the debate stage, and door-to-door would turn to more technical arguments in courtrooms and before county election boards.
Steering Romney’s legal strategy would be Benjamin Ginsberg, a Washington-based attorney who has been close to him for years, and guiding Obama’s would be Robert Bauer, who has advised Obama since he came to Washington in 2005. Both would probably employ strategies that have grown more advanced in the aftermath of recounts like the 2000 presidential race in Florida.
“The analogy to warfare makes sense; the Pentagon is always improving its weaponry,” said Edward B. Foley, an Ohio State University law professor and an expert on election law. “Something of the same thing is going on in the legal battles. You just accumulate experience and sophistication in how to think about what to do.”
The popularity of early voting, and the limits that states have put on it, have led to long lines, including in Ohio, where on Sunday night there was a festive atmosphere at the one location where voters could cast early ballots in Franklin County.
A gospel choir sang. One man dressed up as Abraham Lincoln, several others as Sesame Street characters. Voters waited for an hour and a half in a massive line that snaked out the door of a now-vacant Kohl’s that is serving as a voting site.
There were at least four nonpartisan poll watchers standing outside to help anyone who had problems. Inside, the campaigns had designated observers.
“I’m here because this is the center of where everything is happening,” said Mary Jane Rosenfeld, who flew from Beaufort, S.C., to stand outside Ohio polling locations. “I wanted to make sure everything goes as they are supposed to be.”
One of the biggest postelection disputes is likely to occur over provisional ballots. Voters who use them have to return later with the proper documentation in order to make their votes count.
In Ohio, voters have 10 days to prove their ballots should be counted, which means the country could have to wait that long to know who won the election. If either Obama or Romney needs the state’s 18 electoral votes to win, the election may hinge on those ballots.
Several election observers said that, even if Electoral College tallies produce a winner Tuesday night, it is unlikely that the full scope of the popular vote will be known then. As a result of the hurricane, New York and New Jersey will have large numbers of provisional ballots, which will delay counting from large population centers.
Republicans for most of the past year have expressed concern about voter fraud, pushing for new laws in some states that would require a photo identification in order to vote. Democrats have characterized these laws and limits on early voting as voter suppression, saying that many of the laws being pushed by Republicans make it harder to vote, particularly for minorities. In some cases, courts have blocked the voter ID laws, at least temporarily.
“It’s not good. Both sides see unfairness in however things are decided,” said Lawrence Norden, a professor at New York University School of Law and a respected authority on elections law. “When you get down to these incredibly close margins, it’s unavoidable that you see cracks in the system a little bit. And you see partisans on both sides making unsupported allegations.”
Election Protection, a nonpartisan voter advocacy group, has more than 200 lawyers spread around Ohio who will be monitoring polls on Election Day. They will be standing outside polling locations, giving voters information on their rights as they head in to vote, and helping report any complaints.
They are watching for a variety of things, with heightened concern over the use of challenges to voter eligibility and any attempts to keep voters from casting a ballot.
“We are getting ready to go to court if we have to, if we have concern that there’s discrimination or intimidation, especially of challenging voters on Election Day,” said Jennifer Scullion, a New York-based lawyer who will be fielding reports for Election Protection on voting issues in Ohio.
Even before the dispute over early voting, election controversies began boiling in Florida.
Provisional ballots had a high rate of disqualification in Florida’s August primary election, with almost 25 percent getting thrown out. The rate of disqualifications was found to be higher for Hispanics and black voters than for whites in the state, according to statistics reported by the University of Florida and Dartmouth College.
“I don’t think that anybody that works in elections, except maybe reporters, are hoping for a close election right now,” Norden said. “The worst-case scenario is it comes down to just one or two states and they are extremely close.”