Legal action, voting changes loom over election

By DAVID WESTPHAL
McClatchy Newspapers
October 20, 2004

WASHINGTON - The presidency isn't all that's at stake on Nov. 2.

Haunted by memories of a 2000 election decided by a few hundred disputed votes in Florida, both campaigns are preparing unprecedented challenges of voting procedures that could once again test the integrity of the American ballot box.

Legal skirmishes, in fact, are well under way, in part because record numbers of voters are already casting ballots under state laws that encourage pre-Election Day voting. On a daily basis now, judges are handing down rulings on everything from the standing of voters whose registrations are in dispute to the voting eligibility of ex-felons.

With the intensity rising, President Bush's campaign chairman, Mark Racicot, charged Wednesday that virtually all of the legal action is being taken by Democrats, and he warned that it could "paralyze the effective ability of Americans to be able to vote in the next election. . . . Stop it. Stop what you're doing," he said.

Democrats had no immediate response to the charges. But last week Democratic Party spokeswoman Jano Cabrera said the party makes no apologies for aggressive litigation on ballot access.

"For decades, Republicans have engaged in systematic voter suppression and intimidation, from throwing minorities off the voter rolls to ripping up Democratic voter registrations," he said.

The legal crossfire is only part of what's keeping thousands of elections officials awake at night as the presidential campaign heads into the homestretch. They're also preparing for a huge increase in voters - perhaps 15 million more than voted in 2000 - and dealing with multiple new provisions designed to boost turnout and ensure that ballots are cast and counted properly.

"There will be challenges all throughout the nation," said Charles Zelden, associate professor of history at Nova Southeastern University in Fort Lauderdale, Fla. "The only question is whether it's going to matter. But problems? I guarantee it."

In the end, if Election Day produces a clear winner, the ballot box battles may end up being mere footnotes to the 2004 campaign. But if the race turns out to be as close as some polls now suggest, post-election challenges could emerge in one or more states.

A new report by the Election Reform Information Project suggests that three potentially down-to-the-wire states are ripe for such a challenge - Missouri, Florida and Ohio. Ominously, the report notes that the punch-card voting system that was at the heart of the Florida fight four years ago will be used by 70 percent of voters in Ohio.

"The likelihood that somebody will be unhappy about something on November 2nd is pretty good," said project director Doug Chapin.

One impetus for the increasingly aggressive ballot fight is the closeness of the 2000 vote, which some suggest could repeated this year. Bush's 537-vote victory in Florida wasn't the only tight state race. Democrat Al Gore won New Mexico by 366 votes and claimed Wisconsin, Iowa and Oregon by 6,700 votes or fewer.

Also feeding the frenzy was the action of the U.S. Supreme Court, whose decision cementing Bush's narrow Electoral College victory was based on the Equal Protection Clause of the 14th Amendment of the Constitution, a ruling some scholars say opens the door to other allegations of voting-rule disparities.

The upshot: Thousands of lawyers are being deputized and trained by both campaigns, the two political parties and outside groups to monitor, challenge and defend voting rules before, during and after Election Day.

Partly because of the early voting, the legal action is already hot.

In the last few days, for example, federal judges in both Michigan and Ohio have ruled that provisional ballots - those cast by people whose registration is in doubt - must be considered even if they're cast in the wrong precinct. But the Florida Supreme Court, ruling on largely the same issue Monday, declared that such votes should not be counted.

Courts also have weighed in on new identification requirements being imposed on first-time voters. Acting on a lawsuit filed by a GOP legislator, the New Mexico Supreme Court late last month rejected a plea to have all first-time voters show identification, saying that IDs will be required only of new voters who registered by mail.

But Bush-Cheney spokesman Steve Schmidt said Wednesday that the legal activity is nearly all on the Democratic side. Democrats are making a "systematic effort," he said, "to create a circus atmosphere on Election Day designed to take the election through litigation rather than through legal votes."

The marshaling of lawyers on both sides isn't the only action involving ballot access issues. The two campaigns, along with their independent allies, are also training monitors to watch precinct voting places.

Kim Gandy, president of the National Organization for Women, said poll watchers in Florida would ask emerging voters if they had any problems at the polling place. Where problems do occur, she said Wednesday, watchers will accompany voters back inside to see if the problem can be resolved.

Some of this organizing is having immediate consequence, because an estimated 5 percent of registered voters have already cast their ballots and another 17 percent plan to before Nov. 2, according to a new survey by the National Annenberg Election Survey.

That's somewhat higher than the early-voting intentions expressed in a similar poll four years ago. But other surveys indicate pre-Nov. 2 voting could go as high as 25 percent to 30 percent.

"The fact that such states as Florida, North Carolina, South Dakota and Utah have adopted no-excuse absentee procedures to make voting easier make it likely that more votes will be cast early this year than ever before," said Kate Kenski, an analyst at the Annenberg Public Policy Center.

Having lawyers and watchers looking over their shoulders isn't the only problem facing state and local elections officials.

For starters, many have already struggled to keep up with unprecedented registration drives that have added millions of Americans to the voting rolls. According to elections expert Curtis Gans, turnout this year could be as high as 121 million; by contrast, only 105.5 million voted in 2000.

Many have also been instituting new voting equipment and ballot procedures.

The number of states in which voters can cast absentee ballots without providing a reason has grown to 25. Thirty-five states now allow some form of early voting, in which voters can fill out their absentee ballot at makeshift polling places.

Meanwhile, states continue to work through several new requirements of the Help America Vote Act of 2002, in particular a provision that allows citizens to cast provisional ballots even when their names do not appear on voter rolls. The provisional ballots are kept separated from other votes and are counted only if eligibility can be verified.