LEGAL CHALLENGES

Expect Bush v. Kerry, the Chadless Sequel

By ADAM LIPTAK

In trying to fix problems that arose in the 2000 presidential election, Congress may have created an impediment to a quick resolution in 2004 and set the stage for major election lawsuits.

The Help America Vote Act of 2002 allows voters whose names cannot be found on local rolls to cast provisional ballots, with election officials making a decision later about whether the vote should count. Election lawyers now say that those ballots could determine the outcome in a handful of states where the presidential race is expected to be extremely close.

But because those ballots will have to be considered one by one, there is a real possibility that the outcome of the presidential election will not be known on the morning of Nov. 3 and that it will again turn on court decisions, say election law specialists tracking more than a half-dozen thorny legal issues in the swing states.

"We could be within the margin of litigation in all 10 or 11," said Edward B. Foley, who teaches election law at Ohio State University.

Of course, several things need to happen for the courts to play a leading role again. The margin in the Electoral College must be slim. The popular vote tallies in one or more states must be very close. And the magnitude of voting problems in those states must be significant.

The provisional ballots are at the top of many election lawyers' lists of potential problems for Nov. 2. The lists also include recounts, flaws in voting technology, absentee ballots, fraud, intimidation and terrorism.

The court battles about provisional ballots have largely focused on whether voters have to appear at the right polling place. After federal appeals court rulings on Saturday and Tuesday, the courts are for the time being unanimous in saying that local officials may enforce such a requirement. But that is only one issue.

"I guarantee you there will be litigation if there is a state that is critical to winning the Electoral College and the margin of victory in that state is less than the number of provisional ballots cast in that state," Professor Foley said. "The legal theories are available."

No one knows how many provisional ballots will be cast, but the total is expected to be large.

In 2000, even before the new federal law, about 100,000 people cast provisional ballots in Ohio under the state's existing procedures, representing about 2 percent of all 4.7 million votes. Ninety-one percent of the ballots were held valid.

Election law specialists said there might be as many as 200,000 provisional votes under the federal law in Ohio alone.

In Florida, there was no provisional voting in 2000. In the 2004 primary, about 2,000 provisional ballots were cast there, and 60 percent were held valid.

Provisional ballots are suspect by nature. Examining them is an intensive, difficult and time-consuming process. Election officials will have to make a case-by-case reconciliation of voters' assertions that they are entitled to vote and the already available information that they are not, according to the lists of voters at polling places.

"You need to figure out what went wrong and how stringently to apply the law," said Pamela S. Karlan, a law professor at Stanford University.

After research, election officials will make one of several determinations. State officials may have purged voters from the rolls in error. Voters may be registered under a slightly different name. Voters may have failed to fill out their registration forms completely, by failing to check a box affirming they are citizens, for example. Election officials may not have signed the provisional ballot forms, as required in some states. Voters may have presented unacceptable identification when they registered or when they voted.

Some of these issues were created by the new federal law, which was meant to make voting more reliable.

New voters who registered by mail after Jan. 1, 2003, must present identification. They could have done so when they registered, by noting a driver's license number or partial Social Security number, which is checked against state records, or by submitting a copy of a paycheck, utility bill or similar document. If they failed to do that, they must show similar identification when they vote.

State officials may decide that the initial identification was inadequate, and then people may appear at the polls without identification.

The law also requires people voting provisionally to sign affirmations of eligibility "before an election official." Some states require those officials to sign as witnesses, but those signatures may be missing.

Getting to the bottom of all these questions requires work, and the answers will often be ambiguous. The counting could take time. Colorado, for instance, allows 12 days.

And if election officials in various counties in a state employ different standards in answering these questions, the problem quickly starts to look like the one confronted by the Supreme Court in 2000, when different Florida counties used different standards to discern voters' intentions.

"That's classic Bush v. Gore," Professor Foley said, referring to the problems inherent in counting many provisional ballots. "Human beings are going to be making judgments about handwriting and whether a utility bill can be good ID. I've been trying to figure out for six months what the standard is. We have not found a standard in any state on who even bears the burden of proof."

The federal law provides almost no guidance.

"Provisional balloting is an excellent idea," said Heather K. Gerken, who teaches election law at Harvard. "The problem is that Congress punted by writing an ambiguous law. It's in the courts now. People ought to be in a cold fury over Congress's inaction on this."

The law also called for states to create comprehensive voter registration databases by Jan. 1, 2004. But some 40 states were granted waivers.

"People's registration lists are just as messy as they were before," Professor Gerken said, "Florida being a prime example."

Absentee ballots present a related problem. The number may be larger - some 440,000 were cast in Ohio in 2000, for instance - but they are not inherently open to question, as provisional ballots are. On the other hand, Professor Karlan said, "most vote fraud cases tend to involve absentee ballots."

The combination of these two types of ballots could easily exceed the margin of victory from the conventional voting in several states.

"My top concern right now," said Richard L. Hasen, a professor at Loyola Law School, "is that Ohio or Missouri or Florida is separated by a few thousand votes and there's a stack of provisional or absentee ballots to be counted."

Among the other potential issues cited by election law specialists are problems with certain kinds of voting technologies, voting fraud and voter intimidation. Recounts, where allowed under state laws, are likely, too.

Colorado will be voting on an initiative to move from a winner-take-all system for the state's nine electoral votes to a system granting a proportional split of them. If the initiative passes, it takes effect immediately, meaning each candidate could receive some of those nine votes.

Chief Judge Lewis T. Babcock of the federal district court in Denver dismissed a lawsuit yesterday challenging the initiative. Judge Babcock said the suit, brought by Jason Napolitano, a local businessman, failed because Mr. Napolitano could not prove that the initiative would diminish the voting rights of people who might vote one way, only to see their votes counted in the Electoral College in a different fashion.

Judge Babcock also said that federal intervention was inappropriate, as the case presented issues of state law, to be decided by the voters of Colorado.

Mr. Napolitano said he would not appeal, but other challenges to the initiative remain possible.

Election law scholars note at least two other possible problems. One is a tie in the Electoral College. The other is terrorism.

"Eight of the 10 battleground states don't have contingency plans in place for a terrorist attack," Professor Hasen said.

The legacy of Bush v. Gore runs through all these issues.

"The courts inserted themselves as political players in Bush v. Gore," said Nathaniel Persily, a law professor at the University of Pennsylvania. "Now the courts are ensconced. You're going to have polling places with more lawyers than voters. And what lawyers are trained to do is look for problems."

Kirk Johnson contributed reporting from Denver for this article.

Copyright 2004 The New York Times
October 27, 2004