Skip to comments.Supreme Court may decide election disputes
Posted on 10/22/2004 5:21:25 PM PDT by knak
WASHINGTON - As lawyers from the presidential campaigns fan out to fight election 2004 in the nation's courthouses, they're bolstered by archaic election laws, poor preparation by state election officials and an expected flood of new voters with questionable registration.
What gives these problems urgency, experts say, is their potential to raise serious federal constitutional issues that could require resolution by the U.S. Supreme Court. In the end, Bush v. Kerry could unfold as a multi-state, multi-faceted legal dispute that makes Bush v. Gore seem like a traffic case.
"It's almost a `perfect storm' kind of situation," said Richard Hasen, an election-law specialist at Loyola Law School in Los Angeles. "You have an incredibly polarized electorate, unprepared states and a litigation-oriented system. People didn't learn the lesson of Florida, which was to make sure that election laws are carefully crafted. You can't prevent all of these problems, but you can be ready for them, and we aren't."
Hasen warns that potential challenges to the election depend on a terribly close vote. Current polls suggest the 2004 vote could be as close as the 2000 contest nationally, and that as many as six closely fought "battleground" states could well end up as close as Florida last time.
"If it's that close, litigation is almost certain," Hasen said.
Of all the possible Election Day problems, three - involving provisional ballots to voters with questionable registrations, a proposed change in Colorado's method of choosing electors and problems with voting machines and absentee ballots - present the most obvious federal questions, experts say.
The first has already begun to hit courtrooms.
Democrats are suing in several states to force a broad interpretation of the 2002 Help America Vote Act. The law, passed to improve voting procedures after the 2000 debacle, requires states to provide provisional ballots to voters whose registrations are disputed at the polls. Those ballots are then segregated from regular ones and scrutinized; if the voter's registration is found to be legitimate, the vote counts; if not, it doesn't.
But the law doesn't say how states should define legitimate registrations, and that's the source of the dispute. Democrats say votes should be counted even if a registered voter shows up to vote at a precinct he doesn't live in. Republican lawmakers in several states, backed by the Bush Justice Department, have said eligibility for provisional ballots should be determined by state law.
In Florida this week, the state Supreme Court backed Gov. Jeb Bush and Secretary of State Glenda Hood, who want to disqualify any votes cast in any precinct that the voter doesn't live in.
But a federal judge in Michigan ruled Tuesday that officials in that state couldn't exclude votes cast in such wrong precincts because that would violate federal law. A federal judge in Ohio reached a similar conclusion, while judges in other key swing states are still considering the issue.
There are no directly conflicting rulings yet. It's fine if different states - with different election laws - use their local laws to interpret voter rules differently.
"But there's the potential for conflicting opinion about the federal law, which has to be applied consistently nationwide," said Nathaniel Persily, a law and political science professor at the University of Pennsylvania. "The question is what Congress wanted to require of states, and that's a federal question."
The dispute over provisional ballots has the rapt attention of the Bush-Cheney campaign, which accuses Democrats of filing lawsuits to "change rules mid-stream" and "erode public confidence in the system."
In a conference call with reporters this week, Montana Gov. Mark Racicot, the Bush-Cheney campaign chairman, called on Democrats to call off the sparring in the courts to preserve voters' faith in the system.
"Our call to action is to embrace the assistance of the Democratic National Committee and the Kerry campaign to stop dividing Americans ... and institute a zero-tolerance policy for fraud," Racicot said.
Republicans acknowledge, though, that they stand ready to fight Democratic challenges in court and to lodge their own complaints against any voter fraud that may result from the flood of new registrants.
Persily said if there is a dispute over provisional ballots among federal courts, it should be sorted out before the election, rather than after.
"Better to work it out now than after the votes have been cast," he said.
Colorado's Electoral College initiative presents another potential election crisis. Under the ballot proposal, the state's constitution would be amended to allow a split of the state's electoral votes among presidential candidates proportional to their share of the popular vote. In a close election, one candidate would receive five electoral votes, the other four. The change would take effect immediately and affect the electoral count in the current election.
If the Colorado initiative passes, it raises two issues that could be subjects of court challenges. The first is the apparent retroactivity of the initiative; a candidate could argue that the change shouldn't take effect until 2008.
The second has to do with whom the Constitution empowers to change the method of selecting electors. The plain language of Article 2, Section 1 says it must be done "in such manner as the legislature ... may direct."
Does a voter initiative violate that clause?
"It might, but that's a question for federal courts," said Hasen, the Loyola Law School professor.
There are also potential problems with many new voting machines and challenges being filed to absentee ballots. Electronic machines may not produce the paper records necessary for recounts. And Persily said the sheer number of absentee ballots this year is an opportunity for fraud.
"A lot of these issues will not be on people's radar screens until Election Day," Persily said. "But they present serious questions."
Not again please.
I know what you're saying, I enjoyed watching the Demonrats scream like impaled rats so much last election, that it was almost worth the agony of waiting. I can't help thinking, "Bring it on, Rats..."
Not only that, but in my darker moments I almost hope they lose in the courts again, or in the House, so they'll be so mad they'll resort to violence and we can make an end of them in the streets.
Yes, again. And if the liberals, and the fringe right wing have their way, John Kerry will be shaping the Supreme Court for the next 20 years.
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