Republicans are losing most of the court fights with Democrats over whether GOP-backed state voter regulations will illegally suppress turnout among the poor and minorities in the Nov. 6 presidential contest.
As the general election begins in earnest following the conclusion of the Democratic National Convention, legal battles continue in a half dozen swing-states where court challenges await decisions by state and federal judges.
Last month, U.S. courts rejected election-related laws passed by Republican-controlled legislatures in Ohio, Florida and Texas, finding they violated the right to vote. At least 14 cases challenging voter-list purges, provisional-ballot rules, early voting curbs or photo identification mandates are pending in Wisconsin, Pennsylvania, Colorado, Iowa, Florida and Ohio.
Court rulings in those states, which both parties claim they can win in November, could tip the presidential election if the race is as close as it was in 2000 between Al Gore and George W. Bush, said Rick Hasen, a law professor at the University of California, Irvine.
“If the outcome depends on Pennsylvania, and Pennsylvania is extremely close, then these kinds of cases can be determinative,” Hasen, the author of The Voting Wars: From Florida 2000 to the Next Election Meltdown, said in a telephone interview.
Much of the litigation stems from revisions of election procedures Republican lawmakers passed after President Barack Obama’s election in 2008. Proponents argue the laws are necessary to prevent fraud and help elections run smoothly. Democrats and voter advocacy groups say the measures are aimed at disenfranchising likely Democratic voters in a veiled effort to limit turnout for Obama.
“We will continue to commit all the resources and energy necessary to protect voters’ rights,” Bob Bauer, the top lawyer in the Obama campaign, said in an email. “This election should be decided by all eligible voters fully participating, and not by an electorate that is cynically limited to satisfy partisan interests.”
Amanda Henneberg, a spokeswoman for Republican nominee Mitt Romney’s campaign, said “Governor Romney believes that every legal vote should count.”
Besides the cases in so-called battleground states, at least eight more challenges to election law procedures are pending in state and federal courts. Of those in swing states, at least five are in Florida. Another four are under way in Ohio.
Last month, in seven court rulings voiding Republican-sponsored measures, federal judges rejected new limits on early voting in Ohio, turned down a requirement for photographic identification in Texas, and blocked “burdensome” rules regulating voter-registration drives in Florida and Texas. The Texas ruling on registration was put on hold Thursday by a federal appeals court in New Orleans.
Additionally, a panel of three federal judges ruled electoral districts drawn by Texas’s Republican-controlled legislature discriminated against minorities in violation of the Voting Rights Act. A judge-approved interim map is set to be used instead.
The August rulings were handed down by seven judges appointed by Democratic President Bill Clinton, three nominated by Obama and two chosen by Republican President George W. Bush.
A state judge in Des Moines, Iowa, heard arguments Thursday over challenges to Republican-backed rules there aimed at purging non-citizens from the rolls.
In Wisconsin, Attorney General J.B. Van Hollen, a Republican, is waiting to hear whether that state’s supreme court will consider his appeal to reinstate a photo-ID law that was blocked by two judges.
The Ohio battle over early voting and provisional ballots illustrates what’s at stake in the election litigation. No Republican has been elected president without carrying that state’s 18 electoral votes. U.S. Vice President Joe Biden, at a campaign rally in Lordstown on Aug. 31, said Obama will get a second term if he takes Ohio.
A federal judge there, ruling Aug. 31 in a lawsuit brought by the Obama campaign, ordered the restoration of three days of early voting that the Republican-controlled legislature cut back. In that case, Obama for America claimed that, in the three days leading up to the 2008 election, 93,000 Ohio voters cast their ballots.
Four days earlier, another judge in Ohio ruled provisional ballots can’t be thrown out if they’re filed in the wrong precinct because of poll-worker error. In 2008, Ohio rejected 14,355 so-called wrong-precinct ballots, according to the judge’s decision.
Obama won the state by 262,224 votes in 2008.
“Recent experience proves that our elections are decided, all too often, by improbably slim margins — not just in local races, but even for the highest national offices,” U.S. District Judge Algenon L. Marbley said in his Aug 27 ruling, citing the U.S. Supreme Court’s decision in Bush v. Gore.
All told, across the United States, there are at least eight challenges to state voter-identification laws, six to state redistricting plans, four to early voting restrictions, four to voter roll purges, two to registration rules and two to ballot disqualification measures.
The challengers so far have won favorable rulings in about 10 of the cases.
“The courts are making a mistake by saying early voting is a right and not a privilege,” Hans von Spakovsky, a senior legal fellow at the conservative Heritage Foundation, said in a telephone interview. “Until 10 years ago there was no early voting. It will be interesting to see what happens in those cases as they get appealed.”
Republicans scored what might have been their only battleground-state victory in the past month when elected Republican Judge Robert Simpson in Pennsylvania upheld a state law requiring a photo ID to vote. That decision has been appealed to the state’s supreme court, where arguments before three Democratic and three Republican justices are scheduled to begin Sept. 11.
Obama won Pennsylvania by 620,478 votes in the last presidential election, claiming 55 percent of the total and all of its 20 electoral votes.
The American Civil Liberties Union, which sued to block the photo ID law, argued the requirement may end up keeping more people away from the polls than the number that would have constituted Obama’s margin of victory.
A state analysis, presented in court, showed as much as 9 percent of Pennsylvania’s electorate might be unable to vote in November because of the law.
Meanwhile, the U.S. Justice Department is investigating whether the Pennsylvania law violates Section 2 of the Voting Rights Act, which prohibits states from enacting a voting standard that discriminates against minorities. In a July 23 letter to Secretary of State Carol Aichele, the Justice Department asked to review Pennsylvania’s voter registration lists in addition to driver’s license and personal identification card rosters.
Matthew Keeler, a spokesman for Aichele, didn’t respond to a call or email seeking information on the U.S. probe. Mitchell Rivard, a spokesman for the Justice Department, declined to comment.
Florida, with 29 electoral votes, combines with Ohio and Pennsylvania to make up almost 25 percent of the 270 needed to secure the presidency.
In Florida, a state law truncating early voting was rejected for five counties subject to supervision under the Voting Rights Act. A three-judge panel in Washington ruled Aug. 16 that the change could harm the ability of non-white voters to cast their ballots.
In the 2008 election, 54 percent of black voters in Florida voted early — twice the rate for whites, the judges said in their ruling. According to a report paid for by the Democratic National Committee, 1.1 million blacks voted in the state in 2008. Obama won Florida by 236,450 votes.
The early voting cutbacks were among several changes in election procedures passed by the Republican-controlled Florida legislature last year.
Florida is one of 16 jurisdictions with a history of voting rights violations that under Section 5 of the Voting Rights Act need pre-approval from either the Justice Department or a special panel composed of federal district and appeals court judges.
The state is still seeking approval of an updated version of its early voter plan, which it said in a court filing is needed by the middle of September.
In another lawsuit in Florida, U.S. District Judge Robert Hinkle in Tallahassee ruled May 31 that conditions the state imposed on groups signing up voters, such as requirements that voter-drive groups turn over registration materials to the state within 48 hours of completion or face fines of as much as $1,000, are unconstitutional.
The League of Women Voters of Florida and Rock the Vote sued to overturn the rules, which were permanently blocked on Aug. 31.
“These are very high stakes,” Roger Clegg, president of the Center for Equal Opportunity, a self-described conservative think tank that opposes racial preferences, said in a telephone interview. “The election is likely going to be close so there’s a greater fear that voter fraud could make a difference, and to be fair, there’s also greater concern that not allowing people who ought to be able to vote an opportunity to vote could make a difference.”
The Ohio early voting case is Obama for America v. Husted, 12-00636, U.S. District Court, Southern District of Ohio (Columbus). The Florida voter registration case is League of Women Voters v. Browning, 11-00628, U.S. District Court, Northern District of Florida (Tallahassee). The Pennsylvania case is Applewhite v. Commonwealth of Pennsylvania, 71 MAP 2012, Supreme Court of Pennsylvania. The Texas redistricting case is Texas v. U.S., 11-cv-01303, U.S. District Court, District of Columbia (Washington).