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Legal Battles Loom in Seven Key States
By Jackie Calmes and Jeanne Cummings
The Wall Street Journal
Thursday 28 October 2004
Election Day is less than a week away, but Americans may not know the winner for days, if not weeks, after the polls close.
Never before have states faced so many ballots that won't be counted until after Election Day. This year will see the first nationwide use of provisional ballots, for voters whose eligibility is questioned at the polls. How those ballots are counted has already been a matter of dispute. And with participation expected to be high, states are bracing for an unprecedented number of absentee, early-voting, military and overseas ballots that in some states could total more than one-third of votes.
Both campaigns' legal teams are focusing on real and potential problems plaguing a number of states including Ohio, Florida, and five other crucial states. Republicans are poised to challenge voters' legal status, suspecting Democratic fraud. Republicans generally have an interest in damping participation: Larger turnouts typically suggest greater participation from infrequent and downscale voters who tend to vote Democratic.
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Democrats are on alert to counter with charges of voter intimidation and civil-rights violations. The potential for confrontations has election officials scrambling to enlist extra police and marshals while at the same time trying to recruit enough workers to handle the expected hordes.
A quagmire like the Florida recount in 2000 would only happen in another close race, one that gives neither candidate a clear majority of Electoral College votes and leaves both fighting for states where results remain uncertain.
"I am really, really worried," says Doug Lewis of the nonpartisan Election Center, an advisory clearinghouse for election officials. "We're all on our knees - 'Dear Lord, let the winner win big, whoever it is.' "
While other states could emerge as trouble spots, here's a rundown of the seven battlegrounds most likely to pose problems:
Ohio
In recent days, the Cincinnati-based Sixth Circuit Court of Appeals has settled - at least for Election Day - a fight over whether to count provisional ballots cast in the wrong precinct on Nov. 2. The panel said they shouldn't be counted, overturning a federal district court ruling and upholding Republican Secretary of State J. Kenneth Blackwell. If a voter's eligibility is challenged or if his name isn't on the rolls, under a new federal law he can receive a provisional ballot that's only counted after officials verify his status.
Democrats argue the policy will hurt low-income renters and younger voters who tend to move often, but they declined to appeal, preferring for now a stable environment. Mr. Blackwell stands by his decision. "I don't think it's unreasonable to ask people to vote in the right precinct," he says. Both sides are mum about what they might do in the case of a squeaker, but local officials expect legal challenges.
At issue is a contradiction between state laws, which traditionally govern U.S. elections, and a new federal act designed to prevent another Florida. The federal law guarantees a provisional ballot to anyone whose eligibility is questioned. But laws in Ohio and 27 other states say voters have to be in the right precinct - even though confusion about precinct locations is a common problem.
Ohio has already used provisional ballots and some county officials expect as many as 400,000 such votes on Election Day out of as many as five million expected voters. The large number stems from a significant increase in first-time voters, a group that's often on the receiving end of bureaucratic glitches. Under state law, counties won't begin counting the provisional ballots for 10 days. The same is true for overseas civilian and military ballots, which are expected to be more than double the usual number in some counties.
In 2000, Mr. Bush beat Democrat Al Gore by 3.5 percentage points to take the state's 20 electoral votes.
Days before the election, some Ohio counties face poll-worker shortages, especially in Cleveland, because of the expected sharp increase in voting. About 70% of Ohio voters will vote on problem-prone punch-card machines. Republicans are asking the county election board to disqualify more than 20,000 newly registered voters, many signed up by pro-Democratic groups, after campaign literature Republicans sent to some new registrants was returned as undeliverable. The 6th Circuit Court yesterday issued a temporary restraining order barring officials from starting those hearings.
Taking advantage of a little-used state law, Republican activists and party workers are planning to challenge voters' bona fides at the polling places. If precinct judges, local officials who adjudicate disputes, aren't satisfied by a voter's response, voters can be given a provisional ballot instead. Democrats say they will have 2,256 lawyers monitoring Ohio precincts on Election Day.
Wisconsin
This state is one of the few that permits voter registration on Election Day. While that should cut down on provisional ballots, it raises other complications in a closely fought state with 10 electoral votes. Mr. Bush lost by 0.2 percentage point in 2000. In the February presidential primary, at least 4,500 Milwaukee residents registered that day but weren't asked for proper identification. Under state law, they have to produce ID this time or won't be allowed to vote.
Other skirmishes are already breaking out. About 100 pro-Democratic students and union members last month barged into a private election-related meeting held by Milwaukee County Executive Scott Walker, a Republican. City of Milwaukee election officials had requested he distribute 938,000 ballots, but Mr. Walker was resisting on the grounds that the city's registration rolls stood at only 382,000 as of September.
Critics worried that the city could run out of ballots if turnout spiked in unexpected areas. Mr. Walker relented after the city agreed to pay for part of the cost of printing the ballots and return any that weren't used.
Wisconsin has one of the nation's most liberal laws for absentee voting and that could invite complaints of fraud. In 2002, a group working with a Republican candidate seeking local office was charged with 92 felony counts for filling out absentee ballots on voters' behalf.
Meanwhile, Republicans have been probing the authenticity of 100,000 newly registered voters and are expected to lodge protests against any who they feel have questionable eligibility. Democrats say they've recruited 500 attorneys to man the precincts and defend those voters.
Pennsylvania
Another divided state, with 21 electoral votes at stake, Pennsylvania faces several challenges. Five different kinds of voting systems, including punch-card machines, are used around the state. That could complicate a recount by raising questions of how a vote is defined. Pennsylvania has a statewide voter-registration database, yet counties have had problems getting it to divulge voters' correct information. Also, Pennsylvania will be enforcing a new antifraud law requiring first-time voters to show identification, which could cause long lines.
Many expect Philadelphia to be roiled as in times past by Republican complaints of Democratic fraud and Democratic charges of Republican voter intimidation. Gov. Edward Rendell, a Democrat, is dispatching extra state lawyers to Philadelphia and all 67 county-election offices in anticipation of legal challenges.
The tension was evident in a tussle earlier this month. Republicans unsuccessfully pushed to relocate more than 60 precincts, many in minority neighborhoods, arguing they weren't accessible to the disabled. Democrats said the effort was aimed at confusing voters and depressing turnout. Mr. Bush lost the state in 2000.
New Mexico
The state gave Democrat Al Gore his tiniest margin of victory in 2000 and Mr. Bush's legal team might have challenged the result but decided to concentrate on Florida. Polls suggest another close finish ahead for its five electoral votes.
As in other battleground states, New Mexico's flood of new registrations suggests there could be many first-time voters. Bernalillo County, home to Albuquerque and roughly a third of the state's electorate, has already warned of potential problems processing the expected 75,000 absentee ballots in a timely way. Democratic Gov. Bill Richardson ordered extra machines to help with the count.
Problems are expected at polling places with voters who registered by mail but didn't include verification of their identity. They'll be required to show ID to poll workers. That's the minimum standard required under the new federal election law. Democrats complain that it's usually the poor and minorities - likely Democratic voters - who often don't turn up with identification.
Republicans lost a state court fight to expand the voter-ID requirement to all first-time voters registered by a third party, such as a political group. Nonetheless, in Las Cruces, Hispanic voting-rights groups are encouraging all voters to carry identification to the polls.
Democratic Secretary of State Rebecca Vigil-Giron has a fairly expansive approach to counting out-of-precinct provisional ballots, as allowed under state guidelines. Voters in the wrong precinct but the right county will have their ballots for president and other federal offices counted.
Missouri and Illinois
While the polls in both states aren't as close as elsewhere, officials are braced for problems. Both states have histories of election disputes. Mr. Bush is favored in Missouri, with 11 electoral votes, and Mr. Kerry in Illinois, which carries 21.
In Missouri, the tension is heightened this year because the chief election officer is also the Republican candidate for governor, Secretary of State Matt Blunt. He issued a series of orders that Democrats complained benefited his side, such as banning early voting and out-of-precinct provisional ballots, allowing overseas military to vote by e-mail and restricting absentees.
Some parts of Missouri rely on punch-card machines. All voters will have to present identification. "It's a highly charged atmosphere" says Paul DeGregorio, a former St. Louis County elections director who now sits on the Election Assistance Commission, a new federal body for states seeking advice and information. He'll be there on Tuesday to monitor events.
Florida
The site of the 2000 recount has done more to reform its voting system than any other state, including dumping its problematic punch-card machines. But the host of new factors - including provisional ballots and new touch-screen voting machines - still make it vulnerable to snafus. That explains why the chairman of the Election Assistance Commission, DeForest Soaries Jr., plans to be there Tuesday, along with about 120 news organizations from the U.S. and abroad.
Polls show a tight race for the state's 27 critical electoral votes. Both sides have scrambled to register new voters, helping to enlarge Florida's rolls by roughly 10%.
Up to 35% of Florida's votes will be in the form of early voting or absentee ballots, according to election officials. Many of these votes aren't counted until after the main event. With reports that 60,000 absentee ballots in Broward County have gone missing - with election officials and the postal service blaming each other - the Orlando Sentinel ran a headline: "Not Again - Ballots Missing in Broward."
As for Election Day, the recent hurricanes forced officials in hard-hit counties to find new polling places. Some are resorting to tents or trailers. Although some voters will likely head to the wrong precinct, Glenda Hood, the Republican Secretary of State, has held that Florida will only count provisional ballots cast in the right precinct. Unlike many states, Florida doesn't have a deadline for counting provisional ballots.
Punch cards and chads are gone, but worries about voting machinery remain. With touch-screen machines in place in 10 of Florida's most populous counties, including Palm Beach, Miami-Dade and Broward, officials say they've taken steps to avert confusion. A state judge this week rejected a request that election officials produce a paper trail in case of a recount. Industry officials say votes are recorded both on removable memory cards and in the voting machines, and individual ballots can be printed out if necessary.
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