Voting goes to court
Registration lawsuits could shape election
By Tim Jones
In a furious, multistate campaign raging far from television cameras and cable TV chatter, scores of lawyers are arguing over the voting rights of perhaps millions of Americans who plan to cast ballots in the presidential election.
This is the courtroom campaign beneath the presidential campaign, fought in politically strategic states including Ohio, Florida, Wisconsin and others. The outcome of battles over voter registration, absentee ballots and the integrity of state voting lists could prove to be decisive in states where the margin of victory is expected to be slim.
"Voter registration is likely to be the issue of the 2008 election season," said Daniel Tokaji, an election law specialist at Ohio State University Moritz College of Law.
The legal battles come as millions of previously disinterested Americans, most of them Democrats energized by the primary contest between Sens. Barack Obama and Hillary Clinton, have registered to vote in November's election. With Democrats emboldened by large gains in voter registration and Republicans relying on an effective get-out-the-vote machine, the election could turn on pre-election arguments over who is allowed to vote.
Some of the current clashes are partisan, but many of them involve politically unaffiliated groups that have long been active in voting rights debates—the American Civil Liberties Union, the League of Women Voters and the Brennan Center for Justice at New York University School of Law.
In Ohio, the battleground state that delivered a second term to President George W. Bush in 2004, the state Republican Party asked a federal appeals court to stop same-day registration and voting. Earlier in the week, state and federal courts upheld same-day registration and voting.
Disputes over a federal law intended to create a statewide voter registration database are being heard in courtrooms in several states, including Wisconsin, New York and Alabama. A Wisconsin judge is expected to rule Oct. 23 on a lawsuit filed in August by Republican Atty. Gen. J.B. Van Hollen seeking to force registration identity checks on 240,000 to as many as 1 million Wisconsin voters. The 2004 presidential election in Wisconsin was decided by only 11,400 votes, out of nearly 3 million votes cast.
Lawyers in Michigan are fighting over the constitutionality of purging the names of voters from lists and a plan to challenge the registrations of people whose names show up on mortgage foreclosure lists. Challenges to the registration credentials of college students have popped up in other states. And in Florida, registration applications for thousands of Floridians have been stalled by a dispute over the state's controversial law requiring stricter photo identification.
Richard Hasen, a professor specializing in election law at Loyola Law School in Los Angeles, said the 2000 Florida presidential election debacle resulted in a series of new election laws and technology changes, aimed at protecting the integrity of the voting system. The unintended consequence was more lawsuits.
"With new laws there is uncertainty, and that always provides a basis for litigation," Hasen said. "This time around, I do think we're seeing a lot of litigation stemming from voter registration and that, in part, is driven by increased Democratic registrations and also by a change in who is interpreting the rule."
Hasen's research has tracked a dramatic increase in election law litigation, with an average of 96 cases per year from 1996 through 1999, leaping to 254 per year between 2001 and 2004.
"Election law has become political strategy," Hasen said.
Part of that is not a new phenomenon. Historically, the Democratic and Republican parties have lobbied in states to make it difficult for third-party candidates to qualify for state ballots. In 2004, the Democrats, worried about the potential impact of Ralph Nader draining votes away from John Kerry, argued against Nader's inclusion on state ballots. And this year Republicans tried but so far failed to keep Libertarian Party candidate Bob Barr off the Pennsylvania ballot.
In 2006, amid disputes over picture ID requirements in some states, including Indiana, Republicans alleged widespread voter fraud and Democrats contended it was an attempt to suppress the vote of the poor and elderly. Now, with millions of new voters added to the list, the fight is over the legitimacy of those registrants.
"The activity we're seeing today is greater than in the past two election cycles," said Wendy Weiser, who directs the voting rights project at the Brennan Center.
Laughlin McDonald, director of the ACLU's voting rights project, said issues being fought over "are more numerous and substantial, and they could affect more voters."
McDonald said it is ironic that even though the Constitution protects the right to vote in five separate amendments and federal and state laws enforce voting rights in additional ways, the amount of litigation aimed at restricting voting rights multiplies.
"This is what human political behavior is all about," McDonald said. "People want to win, and they're willing to do almost anything to do that."