Behind the looming ballot clash
Courts have issued conflicting rulings over what will constitute valid 'provisional' votes.
A federal law designed to make it easier for Americans to vote is also making it easier for partisan lawyers to challenge key aspects of next week's election.
The Help America Vote Act (HAVA) was intended to prevent a repeat of the failings of the 2000 presidential election. Instead, it has set the stage for a potential explosion of litigation that could, once again, throw the outcome of the election to the courts.
At the center of the controversy is part of the law mandating that states permit voters to cast provisional ballots if their eligibility is challenged by election officials. A provisional ballot will be counted as valid if an investigation reveals the voter is qualified.
An estimated 1.5 million to 3 million would-be voters were turned away from the polls in similar challenges during the 2000 election. Congress created provisional voting as a mechanism to capture those lost votes.
But definitions in the federal law are vague, and voter eligibility ultimately turns on an interpretation of state law that may differ from judge to judge. Analysts say that is a recipe for bare-knuckled legal tactics that could swing the election one way or the other in a close race.
"The whole idea of provisional ballots is one that is going to potentially cause protracted litigation after the election," says Nathaniel Persily, an election-law expert at the University of Pennsylvania Law School in Philadelphia. He estimates up to 1 million provisional ballots will be cast.
"Before HAVA and 2004, if you were not on the voter rolls they would not let you vote for the most part in most states," Mr. Persily says. Now, if you show up and your name is not on the rolls, "different states are going to deal with this differently, but for the most part you are going to be given a provisional ballot," he says.
The real question arises next, Persily says: "What are the criteria under which that provisional ballot will be counted?"
Many of the thorny issues that have dominated news reports in recent weeks - ex-felon voting, alleged voter-registration fraud, voter identification requirements, and whether relatively minor mistakes on voter-registration forms should disqualify a registrant - are all issues likely to take center stage in litigation over provisional votes. How a state or federal judge rules in such cases could render thousands of potential votes valid or invalid.
In the days and weeks after the 2000 election, lawyers for Al Gore pursued a strategy of conducting recounts in a few heavily Democratic counties in Florida. They identified potential pools of Democratic votes and then urged state judges - and ultimately the Florida Supreme Court - to render expansive rulings that would permit the maximum number of previously disputed ballots to be counted.
HAVA could facilitate the same kind of dynamic in 2004. The law requires election officials to preserve all provisional ballots. It also requires them to disclose to each individual voter whether the provisional ballot was counted and, if not, why it wasn't. With thousands of Democrat and Republican lawyers across the country poised for litigation, such notification of valid and rejected ballots could form a ready basis for class-action lawsuits.
"There are going to be all sorts of questions having to do with provisional voting if the election is close," says Daniel Tokaji, an election-law expert at Ohio State's Moritz College of Law in Columbus.
In some cases lawyers may seek to have courts validate provisional ballots that have been declared invalid, while in others lawyers may attempt to have valid provisional ballots disqualified.
Democratic lawyers have generally taken the position that HAVA's federal requirements should be interpreted broadly to enfranchise as many potential voters as possible. Republicans have generally stressed the need to enforce state registration and other restrictions as a protection against voter fraud.
The litigation has already begun. In recent weeks, seven courts have ruled on the relatively narrow issue of whether HAVA mandates the counting of provisional ballots that are cast outside a voter's assigned precinct.
State lawmakers had addressed the issue with 17 states adopting a broader jurisdiction-wide approach, and 28 adopting the more restrictive precinct-based approach. The lawsuits were filed in five of the precinct-based states. All are considered key battleground states, and all have Republican secretaries of state running the elections.
Federal judges in Florida and Missouri, and the Florida Supreme Court, have upheld in both states the secretary of state's position that provisional ballots cast outside the voter's assigned precinct will be disqualified. Federal judges in Ohio and Michigan, as well as a state judge in Colorado, have sided with those opposed to the secretary of state in each of those states, ruling that provisional ballots must be counted as valid even if they are cast outside the voters' assigned precinct.
Last weekend, a federal appeals-court panel in Cincinnati reversed the Ohio judge. That same panel is now considering whether to uphold or overrule the judge in the Michigan case.
Legal experts say the court battles are helping to resolve a key issue prior to the election. But many other issues remain open, fostering widespread speculation about postelection litigation strategies.
"Let's say [John] Kerry is trailing on election night, and the only way he is going to win is through litigating three states. I think public opinion will be so strong against that strategy that it is unlikely he will pursue it," says Persily. But if it comes down to one state with a razor-thin margin, he says, the legal battles will be fierce.
Proliferation is also a concern. "The real nightmare scenario is if both candidates go to court at the same time to try to flip results in different states," he says.