New round of challenges expected as Ohio certifies vote

ANDREW WELSH-HUGGINS

Associated Press  06 December 2004

COLUMBUS, Ohio - While the rest of the country's interest has shifted to Christmas shopping and NBA slugfests, Ohio is focused on tallying the presidential election vote totals.

Two major challenges were expected to unfold Monday even as the secretary of state was ready to certify the final results.

First, lawyers representing voters upset about problems at the ballot on Election Day plan to contest the results with the Ohio Supreme Court. They will cite documented cases of long lines, a shortage of machines and a pattern of problems in predominantly black neighborhoods.

In addition, third party candidates, bolstered by a favorable federal court ruling, plan to file requests for a recount in each of Ohio's 88 counties.

Observers don't give either effort much hope.

"It's an incredible long shot," said Steven Huefner, an Ohio State University law professor. "Courts are just incredibly reluctant to overturn the results of an election absent a really strong showing that something happened that affected the outcome."

The election hung on Ohio, a battleground state prized for its 20 electoral votes. Not until the morning after the election did Democrat John Kerry, presented with the state's results, finally concede.

President Bush's 2 percentage point win over Kerry in Ohio was closer than unofficial election night totals showed, but the change in the final vote count was not enough to trigger an automatic recount, according to county-by-county results provided to The Associated Press on Friday.

About 400 people rallied at the Ohio Statehouse in Columbus on Saturday to demand that a recount begin immediately and to point out election night irregularities they claim could have cost Kerry the election. On Sunday, Democrats trained coordinators to participate in recounts expected to begin later in the month.

"We should verify the accuracy of the vote and the process by which the vote was achieved," said Cliff Arnebeck, a Columbus lawyer working for the Massachusetts-based Alliance for Democracy. "Even if it's several million dollars, it's a minuscule investment to ensure the integrity of the process."

Arnebeck wants Chief Justice Thomas Moyer of the state Supreme Court to review evidence of election irregularities, an option allowed under state law. A ruling in favor of the challenge could lead to a recount or even having the results set aside.

Moyer, a suburban Columbus Republican, oversaw the last time the law was used statewide, a 1990 challenge by Paul Pfeifer of Lee Fisher's 1,234-vote victory in the attorney general's race.

Pfeifer, a Republican now on the Supreme Court, argued that irregularities such as discrepancies between the number of ballots and the number of signatures in poll books could have cost him the election.

The six members of the court who ruled on the case disagreed and Fisher won.

"The process was very smooth," Moyer recalled. "We set up a schedule, we had good lawyers, everyone did the work."

A ruling by U.S. District Court Judge Edmund Sargus on Friday rejected Delaware County's attempt to stop a recount, avoiding a legal precedent that could have stopped other recounts. Green and Libertarian party candidates have already raised the required $113,600.

Republicans say the challenges won't work.

While voters may prove there were problems on Election Day, they'll be hard pressed to show they resulted in a different outcome, said Mark Weaver, an attorney representing the Ohio Republican Party.

"There's simply nothing in the election process that could possibly meet that standard, so the contest will fail like all the other legal maneuverings that failed," he said.

When the Ohio Supreme Court ruled against Pfeifer 14 years ago, it was divided evenly between Democrats and Republicans. Republicans control the court 6-1 today, but that shouldn't make a difference, said Jonathan Entin, a Case Western Reserve University law professor.

"If judges on the Ohio Supreme Court cannot decide political or election-related cases because they're ed through the political process, then how are we going to solve these problems?" he said.