Update: G.O.P. Can Challenge Voters at Ohio Polls


Richard Moore


 G.O.P. Can Challenge Voters at Ohio Polls, Court Rules 
By James Dao and Adam Liptak 
The New York Times 

Tuesday 02 November 2004 

COLUMBUS, Ohio - In a day of see-sawing court rulings, a
federal appeals court ruled early today that the Republican
Party could place thousands of people inside polling places to
challenge the eligibility of voters, a blow to Democrats who
had argued that those challengers would intimidate minority

The ruling, by the United States Court of Appeals for the
Sixth Circuit, in Cincinnati, reversed two lower courts that
had blocked the challenges just the day before. It also came
as squadrons of lawyers from both parties in Ohio and other
swing states, like Pennsylvania and Florida and New Mexico,
were preparing for Election Day skirmishes that will include
using arcane laws that allow challenges at the polls.

The lawyer for a pair of Cincinnati civil rights activists who
had contested the Republican plans to challenge voters
appealed this morning's appellate decision to the United State
Supreme Court. But Justice John Paul Stevens of the Supreme
Court rejected a request to delay enforcement of the decision
by the Cincinnati court.

With the Ohio polls open this morning, the Republicans were
able to put 3,500 challengers inside polling places around the
state. Democrats also planned to send more than 2,000 monitors
to the polls, though they said those people would not
challenge voters.

Judge John M. Rogers, writing for the majority in overturning
the district court decisions, said: "On balance, the public
interest weighs against the granting of the preliminary
injunction. There is a strong public interest in allowing
every registered voter to vote freely.

"There is also a strong public interest in permitting
legitimate statutory processes to operate to preclude voting
by those who are not entitled to vote. Finally, there is a
strong public interest in smooth and effective administration
of the voting laws that militates against changing the rules
in the hours immediately preceding the election."

He was joined by Judge James L Ryan, who wrote in a concurring
opinion that the plaintiffs had offered insufficient proof of
their claims. "The district courts have found a possible
chamber of horrors in voting places throughout the state of
Ohio based on no evidence whatsoever, save unsubstantiated
predictions and speculation," he said.

In dissent, Judge R. Guy Cole Jr. said the majority had struck
the wrong balance.

"When the fundamental right to vote without intimidation or
undue burden is pitted against the rights of those seeking to
prevent voter fraud," Judge Cole wrote, "we must err on the
side of those exercising the franchise.

Judge Rogers was appointed by President Bush. Judge Ryan was
appointed by President Ronald Reagan. Judge Cole was appointed
by President Bill Clinton.

The cases may foreshadow lawsuits that are likely to be filed
if the election is close in any state crucial to the Electoral
College calculus. Lawyers for both sides are already examining
disparities in election policies, nuances in court rulings and
potential irregularities at polling places for material that
may be used to challenge results in places where margins are
paper thin.

The battle over Election Day challenges has been most intense
in Ohio, not only because the race here is so close and so
vital to President Bush and Senator John Kerry, but also
because the Republican Party has announced larger and more
aggressive plans to challenge voters here than in other

The Republicans contend that challenging - a practice that has
been allowed under state law for decades but rarely used -
will weed out fraud often missed by election workers.
Democrats assert that the challenges would disproportionately
single out low-income and minority voters, which Republicans

In their separate rulings in the lower courts, Judge Susan J.
Dlott of Federal District Court in Cincinnati and Judge John
R. Adams in Akron agreed that procedures already existed to
prevent fraud at the voting place. And they said aggressive,
time-consuming challenges inside polling stations might create
chaos and delays that could intimidate voters or rob them of
the chance to vote.

In seeking the delicate balance between preventing fraud and
upholding voting rights, the judges said, the scales should
tip toward voting rights.

"Voter intimidation severely burdens the right to vote, and
prevention of such intimidation is a compelling state
interest," wrote Judge Dlott, who was appointed by President
Bill Clinton. Judge Adams was appointed by President Bush.Mark
Weaver, counsel to the state's Republican Party, said: "The
goal of the Ohio Republican Party is to guarantee a fair
election for everyone. Each time the Democrats remove an
additional safeguard, the potential for voter fraud

Mr. Weaver argued that even if voters had been successfully
challenged at the polls, they would have been allowed to cast
provisional ballots, which are reviewed after Election Day to
ensure that the voter is eligible. Democrats and many experts
in election law say the rules for counting provisional ballots
are varied and unclear, which could lead to valid ballots
being rejected.

The Ohio Republicans have repeatedly argued that the
Democratic Party and allied groups have engaged in widespread
fraud. On Monday, they filed a motion in state court asserting
that the Democrats and an independent group, America Coming
Together, which supports Senator Kerry, have been contacting
Republicans and giving them incorrect information about
polling locations and other Election Day issues.

Democrats and the group denied the assertion.

In a similar and perhaps redundant decision in New Jersey, a
federal judge, Dickinson R. Debevoise, ruled Monday that the
Republican National Committee and people under its control may
not challenge Ohio voters using a list of 35,000 people
prepared by local Republicans here. The list is based on mail
returned as undeliverable.

Judge Debevoise, ruling on a challenge filed by minority
voters in Federal District Court in Newark, based his order
Monday on a 1982 decision that prohibited the Republican
National Committee from using so-called ballot security
measures to frustrate efforts by members of minorities to
vote. Judge Debevoise ruled that the 1982 decision, a consent
order entered as part of a settlement in New Jersey, was
national in scope and continued to be in effect.

Lawyers for the Republicans filed an immediate appeal to the
federal appeals court in Philadelphia.

Even as the Ohio dispute was working its way through the
courts, lawyers in other states were gearing up for Election
Day challenges.

In Philadelphia, Republicans have said they plan to challenge
10,000 voters in the heavily black West Philadelphia section
because of what they say are concerns of registration fraud.
Democratic Party lawyers are expected to ask judges to remove
the challengers if they are overly aggressive.

In Florida, Republicans have said they will challenge 1,700
people with felons convictions if they show up to vote.
Democrats have mustered thousands of poll watchers whose job
will be to ensure that voters are not intimidated.

In New Mexico, officials in both parties said they were
placing hundreds of lawyers in polling places as monitors.
Democrats have said they will not challenge voters, but
Republicans have held out the possibility of doing so.

And in Wisconsin, a dispute over Election Day challenges was
resolved amicably over the weekend when the two parties agreed
to prepare a list of 5,512 people with questionable
registrations, like those with discrepancies in their
addresses. If those people attempt to vote, they will be asked
to produce documentation showing their address. If they have
no such proof, they will be allowed to vote, but their ballot
will be tagged as challenged, meaning they might be rejected
during a recount, officials said.

As the parties geared up for Election Day and beyond, it was
clear both had marshaled impressive forces, though the
Democrats claimed to have the edge in troop strength.

Robert F. Bauer, the Democratic National Committee's national
counsel for voter protection, said the party had assembled the
biggest collection of volunteer lawyers ever.

"It is the largest law firm in the United States," Mr. Bauer
said of his team. "If we paid everyone at the prevailing
market rate, it would rank among the more robust economies in
the world."

Mindy Tucker Fletcher, a senior adviser to the Republican
party in Florida, said she was unimpressed. "Why is that
something to be proud of?" she asked, adding that "we have
lawyers in every county, and at the state level."

Ohio Republicans have also made extensive preparations,
recruiting 360 lawyers. "Litigators in every county are
standing by to litigate," Mr. Weaver said.

Daniel J. Hoffheimer, the state legal counsel for the Kerry
campaign in Ohio, said he had recruited lead lawyers in
virtually every one of the state's 88 counties. He said three
issues could ripen into post election lawsuits if the vote was
close in Ohio: provisional ballots, challenges to voters and
absentee ballots.

Both sides agreed that no one knew where significant trouble
would break out or what specific legal issues would be
involved. But all concerned said they had tried to learn from
the litigation chaos in Florida in 2000.

"Last time everybody was entirely unprepared," said Barry
Richard, who represented the Bush campaign in Florida in 2000.
"We had to organize very quickly. Nobody expected it to begin
with and nobody expected the magnitude of it or the length of
it. We suddenly found ourselves facing three trials, any one
of which could have made the difference in the election."

© : t r u t h o u t 2004