Legal News

And Now, the Winner of the 2008 Election . . . . Ohio Lawyers?

By Dan Slater

Election law lawyers are warming their engines for some serious litigation. Here’s what the WSJ says about early voting: It’s happening in high numbers, despite long delays, meaning that overall voter turnout could be quite high and there could be quite a bit of confusion at the polls.

What does it all add up to? A field day for lawyers, especially in Ohio, reports the New York Times, where a close race could see Ohio being the locus for lawsuits over voting irregularities. The battles, notes the Times, could be over the rules for a recount, or how to deal with voters who were not added to the rolls even though they registered properly and on time. But the most likely source of litigation is the state’s heavy use of provisional ballots, which are issued when a voter’s identity or registration cannot immediately be verified or when polls stay open late.

“Provisional ballots are really the Achilles’ heel of our electoral process, because in a close race that is the pressure point lawyers use to try to undo the results,” said Edward B. Foley, a law prof at Ohio State U. “The larger the number of provisional ballots cast in a state, the more vulnerable the Achilles’ heel, and Ohio has for a couple of elections used more of these ballots than most any other state.” Provisional ballots could also see a big jump if large voter turnout causes long lines in Ohio, causing polls to stay open later.

Even more of these ballots will be cast in Ohio on Nov. 4, voting experts predict, because many newly registered voters may bring the wrong form of identification to the polls, failing to comply with the state’s new voter law that requires all voters to show government-issued ID or an approved document with a voter’s name and address. Others may go to the wrong polling place, or show up at the polls only to find that they are not listed on the state’s new computerized voter registration list, which has already been the subject of intense partisan wrangling.

Professor Foley told the NYT that post-election litigation was more likely in Ohio because that state provided a long window of opportunity to contest provisional ballots. Ohio officials cannot count such ballots for 10 days after the election, while in Florida, officials must count them two or three days after polls close, he said.

Full post as published by Law Blog - WSJ.com on October 31, 2008 (boomark / email).