The U.S. presidential election has already spurred a couple dozen lawsuits over the past six months. These particular lawsuits have revolved around photo ID requirements and limited poll hours. However, a new torrent of litigation, beginning on election day, is looming over who gets to vote and which ballots will be counted.
Voter rights advocates and attorneys may initially head to court to try to keep polls open longer because of the breakdown of machinery and/or to make up for Hurricane Sandy’s aftermath. They may also challenge partisan poll-watching. This is according to Edward Foley, a law professor at Ohio State University. And, Bloomberg reports Democrats in Florida, on Sunday, sought to extend early voting hours and in Ohio last-minute provisional ballot restrictions are being contested.
The most voluminous onslaught of litigation, would probably come after Election Day and could be reminiscent of 2000, when it fell to the courts to determine the next U.S. president. The states most likely to be involved in this sort of legal action are Virginia, Ohio and Florida, according to Jocelyn Benson, a professor of law at Wayne State University and director of the Michigan Center for Law and Administration. “Provisional ballots could very likely be the hanging chads of 2012,” Benson said. “The battle over provisional ballots will take center stage where any election is close and a significant number of such ballots have been cast.”
The fallout from Hurricane Sandy may end up being the catalyst for multiple lawsuits. Voters and their advocates might sue to extend voting hours in states where loss of power or other issues limited access to the polls. Federal law dictates that votes cast after regular hours are considered provisional ballots, and in a close election lawsuits challenging the extension may follow.
A court could determine that the extension was not appropriate. In that case, “these provisional votes won’t be counted,” says Steven Huefner, also a law professor at Ohio State University. And, Foley has said that litigation over provisional ballots may “bump up” against deadlines for resolution of the presidential election. He added that electors meet on December 17, by law, and these disputes have to be settled prior to that date.
Virginia could potentially erupt into a hotbed of election litigation if the margin between Romney and Obama is close. This could occur because Virginia passed a new voter ID law and may rely more heavily on provisional ballots than in the past. “Because Virginia is populated enough that its electoral votes matter, if there is a problem, Virginia could be litigated tremendously,” says Michael Dimino, a law professor at Widener University in Harrisburg, Pennsylvania.
Additionally, voter fraud could very well be an issue. Consider the fact that the 2000 presidential race was determined as based on only 537 votes. Therefore, it is not difficult to envision situations in which some might be tempted to engage in election fraud–particularly in such a close presidential race. The left has steadfastly denied that voter fraud presents a major problem in this election but The Heritage Foundation and others have documented its existence.
And then there are the poll watchers. “In Michigan and elsewhere there’s a heightened concern about people who might show up on Election Day challenging people’s right to vote,” Benson said. “There will be a lot of attorneys on hand for both parties, prepared to react to any potential problems.”
So, challenges to poll watchers, who are often seen as illegally interfering with voter access and intimidating voters, could ensue.
Incidentally, the presidential election isn’t the only one in which lawsuits may arise. They could also emerge from ballot initiatives and congressional seats in multiple states, including the Senate election in Missouri.
This is not an exhaustive list of the various in which legal battles that could arise from this election. Just know that the battle may not end on Election Day.