A version of this story was originally published by The Blog of Legal Times, an American Lawyer affiliate.
Even if Tuesday’s presidential vote wasn’t close enough to spark a contested election and a major legal battle for the White House, election law experts have identified plenty of voting issues that could mean post-election litigation.
If the presidential election is not extremely close, “the press and the public won’t care for another three and a half years,” said Richard Hasen, a professor of law and political science at the University of California, Irvine.
But any number of races further down on the ballot that are close could be pushed into the courts, said Hasen, who wrote about how election litigation has more than doubled since the Bush v. Gore election in his new book, The Voting Wars: From Florida 2000 to the Next Election Meltdown.
In Ohio, ongoing litigation about the way provisional ballots are counted will continue so that election law is settled, even if the media spotlight moves on, Hasen said. And in New Jersey, voters have been complaining about problems with the email voting system, something that would not likely affect the presidential race but could cause challenges and post-election litigation for all of the down-ticket races that are close, he said.
Many of the problems were expected. Voting machines have malfunctioned in several states, including a video by one Pennsylvania voter that shows him selecting Barack Obama but the touchscreen recording his vote for Mitt Romney.
An election protection call center at Reed Smith in Washington D.C. reported heavy volumes of calls from voters, including a heavy volume of calls about voting machine problems in New Jersey, where Hurricane Sandy caused major election confusion, and Virginia, where there was also some confusion over the new voter ID law.
There were long voting lines all over the country, and a court order in Florida to keep polls open additional hours. Also in Florida, a robocall from Pinellas County’s election official misinformed hundreds and maybe thousands of voters that polls would be open until 7 p.m. Wednesday.
Volunteers with the Tea Party-affiliated True the Vote were rejected as poll watchers from Columbus, Ohio, amid fears that they would be challenging voters. Federal judge Gregory Frost in Ohio hoped to rule “soon” on a complaint Tuesday morning that alleged last-minute updates to the computer programs inside voting machines there could allow someone to alter ballots, according to the AP.
Also on Tuesday, a judge in Philadelphia ordered election officials to cover a mural of Obama at one polling place inside a school.