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Election Suits Are Filed Early and Often

Each party seeks a legal edge in close states as provisional ballots, new voters become issues.

October 28, 2004|Henry Weinstein | Times Staff Writer

In the presidential election of 2000, lawyers did not become central players until after the polls were closed. This time, they are not waiting.

With polls showing the election still up for grabs, and the memory of the battles in Florida four years ago still fresh, Democrats and Republicans have each mobilized battalions of lawyers, more than 10,000 for each party, to seek any advantage allowable under the nation's patchwork of election laws.

Already, about two dozen lawsuits have been filed in the most closely contested states. Virtually every day in the last two weeks has brought a ruling that could tilt the balance in a close contest.

The most recent came Wednesday afternoon, when a federal district judge in Cincinnati temporarily blocked Ohio's secretary of state, a Republican, from proceeding with mass hearings to challenge the validity of about 20,000 new voter registrations, mostly in the heavily Democratic Cleveland area.

Republican Party officials said the registrations were fraudulent after they mailed letters to newly registered voters and received many back, unopened. The party filed challenges against the voters whose mail was returned.

Democrats then went to court, saying returned mail was not proof that people were ineligible to vote and that the Republicans were trying to "discourage and intimidate eligible voters."

Under Ohio law, challenged voters have a right to counsel and may introduce evidence and cross-examine witnesses. But election deadlines do not seem to provide time for that. With 17,717 challenges in Cuyahoga County, "with no breaks, the board of elections can complete the hearings by holding one every 15 seconds," the Democrats said in their suit.

In her ruling, U.S. District Judge Susan Dlott barred the challenges from going forward before she could hold a full hearing Friday. Ohio Secretary of State J. Kenneth Blackwell could try to have the ruling overturned by a higher court.

In Florida, meanwhile, litigation over ballot issues has reached the state Supreme Court.

There also have been major cases in Colorado, Iowa, Michigan, New Mexico and Pennsylvania -- all states where the outcome of the race between President Bush and Democratic Sen. John F. Kerry could be close. The litigation comes about in part because "we are much more aware of the problems, the defects of the system" since the contested election of 2000, said New York University law professor Richard Pildes.

At the same time, "we have done only a marginal amount to improve" the system, he said. Indeed, some of the attempted reforms since 2000 have generated lawsuits.

Legal issues have become so thick on the ground that Ohio State University's Moritz College of Law in Columbus has begun publishing a daily status report on election-related court cases.

Ohio and Florida are "the two states most likely" to have litigation that could tip the balance of the election, said professor Edward B. Foley, who directs the election-law program at the school. Iowa has emerged as "the third most likely litigation-significant state," he said.

"There is a 100% chance of problems," said Richard L. Hasen, a professor at Loyola Law School in Los Angeles who is also coauthor of a textbook on election law and the administrator of an election-law blog. The odds of a problem significant enough to delay the outcome are 1 in 10, he estimates -- a figure "high enough to worry about, given what is at stake and our past history."

So far, the biggest issues being taken to court appear to be voter registration challenges, as in Ohio, and the procedures to allow provisional ballots -- votes cast by people whose names do not show up on the registration list when they arrive at their polling place.

Provisional balloting was one of the key reforms to come out of the chaos of the 2000 vote count. A federal law passed after the Florida recount, the Help America Vote Act, requires all states to allow such ballots. The idea was to address claims that thousands of people had been improperly denied the right to vote that year because of clerical errors.

But although provisional ballots ensure that more people can vote, they also guarantee a slow count in a close election.

In many states, election officials will not even know next Tuesday how many provisional ballots they have. And the legal issues over which provisional ballots to count -- and how -- could make hanging chads look simple.

One leading issue that has been fought out in several states is whether voters who show up at the wrong precinct can cast a provisional ballot.

At least 17 states allow voters to do so.

In other states, including Ohio and Florida, election officials have said that provisional ballots can be used only by voters who are at the right precinct but not on the registration list.

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