Legal Battles Over Ballots Put Election Rules in Flux

By Jo Becker and Thomas B. Edsall
Washington Post Staff Writers
Wednesday, October 27, 2004

Iowa Republicans charged yesterday that Democrats are trying to rig the presidential election there by allowing voters to cast ballots even if they vote in the wrong precincts, while in Ohio Democrats sued to try to stop the GOP there from challenging the eligibility of tens of thousands of voters.

The two moves were part of an ongoing legal fight for the presidency that has put election rules in flux less than a week before Election Day.

Court battles have been underway in virtually all of the battleground states, leading to last-minute hearings and rulings that have election officials scrambling as they prepare for voters to come to the polls on Tuesday and contend with hundreds of thousands of voters who are already casting ballots in states that allow early voting.

Many of the lawsuits have focused on how provisional ballots should be counted, a new voting procedure that was intended to be an improvement in balloting. After the disputed 2000 election, Congress declared that no voter could be turned away at the polls and passed legislation requiring that provisional ballots be given to those who come to the polls but whose names are not on the rolls. But the measure left unclear the standards for determining whether the ballots are valid and should be counted and how quickly after Election Day.

Yesterday, the U.S. Court of Appeals for the 6th Circuit ruled that provisional ballots cast outside the voters' correct precinct cannot be counted in Michigan. The court had previously made a similar ruling for Ohio.

The dispute over provisional ballots has a distinct partisan tint: Democrats want the ballots counted even if they are cast in the wrong place, arguing that many voters who move frequently would otherwise be disenfranchised. Republicans counter that allowing ballots cast in the wrong precinct to be counted would open the election to fraud.

Democrats have unsuccessfully sued Republican election officials who have adopted the stricter counting rules in the critical states of Florida and Missouri, as well as Ohio and Michigan.

This week, it was the GOP's turn. Five Iowa Republicans filed a lawsuit in state court Monday to overturn a recent opinion by that state's Democratic attorney general that ballots cast in the wrong precinct must be counted. The suit contends that the ruling could produce "voting irregularities, confusion, uncertainty" and "Election Day chaos."

Secretary of State Chester J. Culver (D) said his only goal "is to ensure that every eligible vote counts." A hearing is scheduled for today.

But even in states where litigation has settled the rules, problems could still arise. Many states, Florida among them, have not spelled out uniform rules on the steps election officials should take to determine whether a voter is eligible.

Some say they will simply check their voter rolls. Others might try to find the voters at their homes or to cross-reference the signatures they have on file. That could lead to the same county-by-county counting discrepancies that led the U.S. Supreme Court to stop the Florida recount four years ago.

"If it's close, I foresee a swarm of lawyers, with some saying this guy didn't cross the 't' the same way as he did on his registration card, so it shouldn't be counted, while others insist the 't' is fine," said Elliott Mincberg, legal director for People for the American Way Foundation, a liberal group that is sending lawyers to monitor the polls.

The amount of time election officials will have to make such determinations varies widely. In Florida, for example, that period is less than two days, which officials there say is not enough time.

Analysts say it is difficult to predict how many provisional ballots will be cast this year. But in locales that have allowed them for years, the ballots have reached huge numbers. In 2000, for instance, about 100,000 were cast in Los Angeles County.

In Ohio, a move by the Republican Party last week to challenge the eligibility of tens of thousands of mostly Democratic voters could drive up the number of people forced to cast provisional ballots in that crucial state, a goal that GOP strategists said would benefit the president because it is likely many of those ballots would not be counted under Ohio's strict rules.

Another potential benefit: Because provisional ballots are not counted until after Election Day, the more Democrats use them, the more likely it would be that Bush will appear to be ahead on election night. Tony Fabrizio, a GOP consultant and pollster, said that is a "significant psychological advantage," because the country is "not going to tolerate waiting a month for the outcome."

Democrats argue that the Ohio challenges violate federal law; Republicans say they are trying to prevent fraud.

In a legal battle on a different election issue, a federal judge in Florida ruled yesterday that state election officials will not have to process the thousands of incomplete registration applications. A coalition of civil rights groups and labor unions had argued that the required information was irrelevant and that the rejected applications were disproportionately those of minority applicants