Whose votes count, whose don't? The legal landscape before Election Day
Here's how judges have ruled in four major election-law flash points: voter ID laws, early voting, provisional ballots, and the purging of voter registration rolls.
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Thus, in four different voter ID cases decided by different judges with different political orientations, two of the laws were struck down and two were upheld. But, perhaps most significant, all four were effectively blocked from use during the 2012 election.Skip to next paragraph
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Another hotly contested area of preelection litigation involved early voting.
The Obama Justice Department, the Obama reelection campaign, and Obama supporters argued that minority voters were more likely than other voters to cast their ballots on the weekend before Election Day.
They cited a successful “souls to the polls” campaign in which religious groups provided buses to take parishioners to vote after the Sunday service. They accused Republican lawmakers of trying to suppress voters likely to support Mr. Obama.
In Ohio, the new law ended early voting for most voters on the Friday before Nov. 6. But the legislature allowed military and overseas voters to continue casting early ballots Saturday, Sunday, and Monday before Election Day.
The Obama campaign filed suit, arguing that if some voters were allowed to continue to vote over the weekend, then all voters should be allowed to do so.
A federal judge and a federal appeals court panel agreed. The court ordered Ohio election officials to extend early voting for three more days – Saturday, Sunday, and Monday – prior to Election Day.
Similar to the effort in Ohio, the Legislature in Florida passed a measure in 2011 that ended early voting on the weekend before the election.
Under the new law, early voting would start Saturday, Oct. 27 – 10 days before the election – and end on Saturday, Nov. 3 – two days before the election.
As in Ohio, minority groups complained that it might undermine turnout among black and Latino voters.
Once again, Section 5 of the VRA provided the Obama Justice Department with a strict legal standard to challenge a new law passed by a Republican-majority legislature.
Because five of Florida’s 67 counties are covered jurisdictions under Section 5 of the VRA, the state was required to prove that the election-law changes – as implemented in those five counties – would not result in discriminatory retrogression of minority voting.
None of the five counties had offered early voting on Sunday in prior elections. So that change could not be ruled retrogressive in Florida.
The three-judge court (made up of judges appointed by Clinton) ruled that the new law did not comply with VRA requirements because it allowed counties to sharply reduce the total number of hours of early voting from 96 to 48.
The judges suggested that if the five counties agreed to maximize the number of early voting hours to 12 hours per day over an eight-day period (including Sunday voting on Oct. 28), it would probably satisfy the requirements of the VRA.
The Justice Department agreed and dropped its opposition to the early voting change.
Despite the agreement, several groups continue to object to the loss of early voting during the two days prior to the election. The chairman of the Florida Democratic Party filed suit over the weekend asking a judge to order an extension of early voting.
With polls showing the presidential race in a virtual tie in Ohio, election lawyers are searching to identify a source of votes capable of breaking an Election Day deadlock.