Tuesday, November 2, 2004
Even rules go down to wire
GOP appeals barring of challengers
By Dan Horn, Howard Wilkinson and Cindi Andrews
Enquirer staff writers
A federal appeals court cleared the way early today for Republicans and Democrats to challenge the legitimacy of voters before they cast ballots in today's election.
A panel of the U.S. 6th Circuit Court of Appeals voted 2-1 to allow the party-affiliated challengers in polling places today, overturning two lower court rulings in Cincinnati and Akron.
The decision was immediately appealed to the U.S. Supreme Court. But if the ruling stands, Ohio voters can expect to find challengers in thousands of precincts across the state.
The challengers are permitted to question a prospective voter's identity, age, residency or citizenship before the person receives a ballot.
Republicans favor the challengers, arguing that they would help prevent voter fraud, while Democrats claim the GOP is trying to intimidate minorities and other voters who tend to cast ballots for Democrats.
Although the lower courts declared the challengers were unconstitutional and could cause chaos at the polls, the two appeals court judges said the state law passes constitutional muster.
"There is a strong public interest in allowing every registered voter to vote freely," wrote Judge John Rogers, who joined with Judge James Ryan in the decision. "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."
Rogers was appointed to the court by President George W. Bush, while Ryan was appointed by President Reagan.
The dissenting judge, R. Guy Cole, was appointed by President Clinton. Cole said the GOP would place challengers in predominantly African-American precincts with the apparent goal of limiting voting rights.
"We have before us today a matter of historic proportions," Cole wrote in his dissent. "Partisan challengers, for the first time since the civil rights era, seek to target precincts that have a majority African-American population."
Al Gerhardstein, the lawyer representing the civil rights activists who opposed the challengers, said "We're hopeful the U.S. Supreme Court will set this right and give Ohio a peaceful election."
The appeals came at the end of a long, tense day of legal maneuvering between Republicans, who say the challengers are needed to prevent fraud, and Democrats, who say the GOP is trying to intimidate voters.
The strategies on both sides seemed geared not only to today's election, but also to the days and weeks to follow.
Legal arguments in several cases laid the groundwork for possible future complaints about voter fraud, intimidation at polling places and racial discrimination.
All of those could be issues if the election results are as close and controversial as in 2000.
Secretary of State Ken Blackwell, the state's top election official, expressed frustration with the legal drama Monday and urged voters to immediately report intimidation, fraud or other problems directly to him.
"We have thousands of out-of-state lawyers, law students and news media descending on our state," he said. "We have not asked for their help, nor do we need it."
Under Ohio law, challengers can question a voter's identity, age, residency or citizenship before the person receives a ballot.
The precinct's presiding judge then questions the voter and decides whether he or she can cast a regular ballot or a "provisional" ballot that would not be counted until election officials determine the voter's eligibility at a later date.
One of the judges who ruled Monday, U.S. District Judge Susan Dlott, found that the Ohio law allowing challengers is unconstitutional and noted that neither party has used them before this year. She said the challengers' questioning of voters could wreak havoc at the polls and disenfranchise voters.
"There exists an enormous risk of chaos, delay, intimidation and pandemonium inside the polls and in the lines out the door," Dlott wrote.
The Akron judge, U.S. District Judge John Adams, reached a similar conclusion, saying poll workers are trained to spot irregularities and are an adequate protection against fraud.
"In light of these extraordinary circumstances, and the contentious nature of the imminent election, the court cannot and must not turn a blind eye to the substantial likelihood that significant harm will result not only to voters, but also to the voting process itself, if appointed challengers are permitted at the polls," Adams wrote.
Adams was appointed to the court by President George W. Bush, while Dlott was appointed by President Clinton.
The decisions won praise from Democrats and from Marian Spencer, the civil rights activist who sued in Cincinnati to block the challengers.
"It tells us that we have recourse when we see things happening to our electoral system that aren't right," said Spencer, who became Cincinnati's first African-American City Council member in 1983.
She said Hamilton County's 84,000 newly registered voters "need to be welcomed into the process, not intimidated."
Republicans promptly appealed the rulings to the 6th Circuit, and Ohio Attorney General Jim Petro filed a legal brief with the court defending the law that allows challengers at the polls.
GOP officials said the challengers are a necessary precaution against what they suspect is widespread fraud involving newly registered voters.
They said the conduct of Democrats has been so egregious that the GOP filed a separate lawsuit Monday in Marion County alleging that Democrats have attempted in phone calls to mislead Republican voters about where they are permitted to vote.
"These are not just random mistakes," said Mark Weaver, a lawyer for the Ohio Republican Party. "This appears to be a calculated attempt to steal the election."
He said the challengers would not interfere with voting but would instead spend most of their time observing the process. One goal is to take detailed notes in case the results are called into question after the election, he said.
"If there is litigation later, that could be very useful," Weaver said.
What to do at polls
Whether you are a first-time or longtime voter, casting a ballot can be a confusing process. Here are some tips to make sure your vote is counted today: