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Late Ruling Allows GOP to Challenge Ohio Voters

November 02, 2004|Henry Weinstein | Times Staff Writer

CINCINNATI — Ruling early this morning, a divided federal court of appeals handed Republicans a potentially significant election day legal victory in this fiercely contested state, clearing the way for the party to challenge thousands of newly registered voters.

The decision by the U.S. 6th Circuit Court of Appeals could affect at least 23,000 newly registered Ohio residents whose qualifications Republicans have sought to challenge.

The ruling upheld Ohio's law on voter challenges. It came less than six hours before the 6:30 a.m. scheduled opening of polls here and capped nearly 24 hours of frenzied litigation that had left election officials uncertain of how they would proceed.

"The ball keeps bouncing up and down. We'll do the best we can," said John M. Williams, director of the board of elections in Hamilton County, Ohio's third-most populous county.

Republican Party officials have recruited about 3,500 challengers, many of them lawyers, to go to polling places around the state and question the validity of new voter registrations, particularly in heavily Democratic regions.

The Republicans allege that many of the new registrations are fraudulent, saying that names such as Mary Poppins and Dick Tracy appear on the registration lists.

Democratic leaders deny that any systematic fraud has taken place.

On Monday, two federal district judges, one a Democratic appointee and one a Republican, had barred Republicans from challenging voters, saying that the planned challenges could cause chaos at the polls that would deny people the right to vote.

The 2-1 appeals court majority disagreed.

"Longer lines may, of course, result from delays and confusion when one side in a political controversy employs" challenges "more vigorously than in previous elections," Judge John M. Rogers wrote for the court. But "such a possibility does not amount to the severe burden upon the right to vote" that would justify a court order, he said.

Rogers, who was appointed by President Bush in 2002, was joined by Senior Judge James L. Ryan, who was appointed by President Reagan in 1985.

Appeals Court Judge R. Guy Cole Jr., a 1995 appointee of President Clinton, dissented. Under the Republican plan, he wrote, "partisan challengers for the first time since the civil rights era seek to target precincts that have a majority African American population and without any legal standards or restrictions, challenge the voter qualifications of people as they stand waiting to exercise their fundamental right to vote."

Cole added: "In this case, we anticipate the arrival of hundreds of Republican lawyers to challenge voter registration at the polls. Behind them will be hundreds of Democrat lawyers to challenge these challengers' challenges. This is a recipe for confusion and chaos."

The ruling allowing the challenges vindicated Ohio officials, who had argued to the court that "having federal trial courts rewrite the election laws on election eve is no way to run an election, and is no way to maintain the respect of a citizenry already concerned that lawyers and judges, not voters, decide elections."

Alphonse A. Gerhardstein, the lawyer for Democratic voters who had sued to block the Republican challenges, said he planned to immediately ask the U.S. Supreme Court to intervene.

Earlier on Monday, with tensions rising on both sides, Republican National Committee spokesman Jim Dyke issued a statement accusing Democrats of planning to "systematically file litigation to change the rules in battleground states across the nation and create a sense of chaos."

Dan Sullivan, the attorney who heads what the Democrats call their "voter protection" effort in Ohio, accused the GOP of mounting "consistent efforts to suppress the vote" in the state.

Stanford University law professor Pamela Karlan, an expert on voting rights, marveled at the intensity of the legal contest. "Even with all the notice in the world, this is coming down to an amazing demolition derby of litigation," she said.

In their rulings on Monday, U.S. District Judges Susan J. Dlott in Cincinnati and John R. Adams in Akron had said the Republican plan to use inexperienced volunteer challengers at polling places could lead to voting-day chaos and significantly impede the balloting.

Dlott, who ruled at 1:24 a.m., was appointed by Clinton in 1994. Adams, whose ruling came several hours later, was appointed by Bush in 2002.

Both judges noted that the state already has a mechanism, using election judges at polling places, to avoid voter fraud. Under Ohio law, each polling place is staffed by four election judges, no more than two of whom can be from a single party. One of the four is appointed by each county election board to be the presiding judge, who can rule on challenges to a voter's qualifications.

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