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With Nov. 2 looming, the local lawyers who will monitor the polls are finding themselves consumed not by a few overarching concerns, but by a laundry list of scenario-specific questions that offer a preview of the potentially frustrating magnitude of Election Day: “What happens if someone is not on a local polling station’s rolls because he or she has changed the address on his or her license in anticipation of a move, but has not yet moved?” “Will election officials throughout the individual polling places be on a synchronized-clock schedule for the purposes of closing the polls at 8 p.m. at the exact same time?” “The $10 fee for challenging an absentee ballot — can I pay that by check?” And so it goes, ad infinitum — or ad nauseam, whichever comes first. Election experts predict that most of the confusion come Nov. 2 will stem from two processes that will be new to many Pennsylvania voters this time around: an ID requirement for voters casting ballots at their local divisions for the first time, and a provisional ballot system for voters who believe they have properly registered but whose names are absent from their local stations’ rolls. But with the stakes as high as they are this year, the poll-monitoring lawyers are keeping an open mind and will undoubtedly be on the lookout for the slightest straying from election protocol. “We’re considered a battleground state, so we’re expecting a lot of issues,” said Divisional Deputy City Solicitor Andrew Ross, who will coordinate the city law department’s presence at the Central Election Court. Attorneys from the law department will appear on behalf of the City Commissioners Office on Tuesday. Those handling the legal sides of the two major campaigns agree that things could get complicated. “The provisional balloting could very well be a significantly time-consuming issue that could require a lot of focus from all parties,” said Lawrence Tabas of Obermayer Rebmann Maxwell & Hippel, who is special counsel to the Republican state committee for election law matters. “There’s no question that that process and those votes could be subject to a great deal of scrutiny. … You have so many potential administrative issues that I think all lawyers involved are hoping that their candidate wins by a lot.” Kimberley Warden of Saul Ewing’s Washington, D.C., office is the voter protection coordinator for Pennsylvania’s Kerry-Edwards Democratic-coordinated campaign. Warden said she and her colleagues have been leading an educational campaign to ensure that registered Democrats voting in their division for the first time are aware that there are many acceptable forms of non-photo IDs they can use to verify their identity, including pay stubs and welfare checks. “We are confident that that new change in our law will not serve to dissuade anyone from voting,” Warden said. ARMED WITH INFORMATION On Wednesday afternoon, Ross and Deputy City Commissioner Edward Schulgen conducted an hour-long information session that was attended by city attorneys and lawyers working with the Bush-Cheney and Kerry-Edwards campaigns. Tabas was there with a group of colleagues, as were Kerry-Edwards Philadelphia County counsel Abbe Fletman of Wolf Block Schorr & Solis-Cohen and Sharon Losier of Losier & Associates. Assistant District Attorneys Peter Berson and John Han were also present. Berson told The Legal that 40 to 50 ADAs will be assigned to Election Day duties, and that the district attorney’s office will also set up a telephone hotline to receive complaints from the field. Early in the meeting, Schulgen said he believed that most of the problems Tuesday would be the result of confusion, not of intentional malfeasance. Incidences of fraudulent voting, he posited, will be rare. “You want to prevent fraudulent voting,” Schulgen said, “get off your ass and vote.” Among the main points raised at Wednesday’s meeting by Schulgen, Ross and City Commissioners Office Voter Registration Administrator Robert Lee: Certified poll watchers are allowed to go from station to station this year, but only one watcher per candidate or party can be inside a particular station at a time. The watchers can look at the signature books only when no voters are inside the station. Each station will be equipped with roughly 40 provisional ballots, and election officials are being told that they are to be used only as a last resort. First, officials should make sure that a voter whose name is not in the local rolls hasn’t gone to the incorrect station. Then, officials should see if the voter’s name has changed because of a marriage or has been previously misspelled in an official election-related mailing. Finally, the officials should call the city commissioners main office to see if the name is on the master rolls. After those steps have been taken, a voter can be issued a provisional ballot. If a machine malfunctions, poll watchers should suggest to election officials that they call the city commissioners main office to try to have a mechanic walk them through solving the problem, rather than wait for the mechanic to arrive. If a voter has changed his or her address before moving but has not yet moved, federal law requires that the voter sign an affirmation stating that he or she still lives at the “old” address. Those voters are still allowed “one bite at the apple,” as Schulgen said, and a watcher is only allowed to challenge such voters as to their actual identities. The local election officials have been instructed to go to the end of each station’s voters’ line at exactly 8 p.m. to ensure that no other voters are able to get in line. (It appears that their time-keeping devices will not be synchronized.) Voters can request to have assistance while casting their ballots, but they cannot be assisted by their employer, their union representative or the election officials. One exchange from Wednesday’s meeting illustrated how quickly a tempered discussion could turn into a bout of yes-it-did/no-it-didn’t as Election Day nears. Midway through the session, Tabas announced that he had sworn affidavits from eyewitnesses who claim that on Tuesday, they saw members of a certain special interest group in an area where a table had been set up to assist those who will be voting by absentee ballots. The eyewitnesses had also stated that City Commissioners Office staffers had seen Kerry-Edwards signs in the area. Schulgen responded that he himself had set up the table and had not seen any Kerry-Edwards signs or any members of the special interest group named by Tabas. Tabas reiterated that he had sworn affidavits. Schulgen, his tone becoming more heated, denied that any campaign signs had been hung in the area in question. Tabas responded that he would make the affidavits available to Schulgen. “I would’ve ripped [the signs] down myself,” Schulgen said adamantly, adding later, “You can file whatever you want … .” ELECTION COURTS Election Day issues that require judicial resolution will be brought before a number of special courts that will be located throughout the city. According to a Sept. 17 order from Philadelphia Common Pleas President Judge Frederica A. Massiah-Jackson, 14 divisional election courts — to be located in police stations — will be manned by common pleas judges for the limited purpose of determining whether individual voters whose names are not in the local books should be allowed to vote. Different judges will preside at each divisional election court in the morning and in the afternoon. The judges assigned to the central election court — Judge Barbara A. Joseph in the morning and Judge Shelia Woods-Skipper in the afternoon and evening — will have jurisdiction over all election matters, according to Massiah-Jackson’s order. The central election court judges can do anything from issue an order directing a particular person accused of intimidation to leave a certain polling location to resolve whether a particular poll watcher has been unfairly kicked out of a station by local election officials, Ross said. “Also, the city commissioners have the actual voter rolls, so if questions come up about a particular person, [the judges can have somebody] go online with a computer in the room and look it up,” Ross said. “Then the parties’ [representatives] can check their own records on their computers.” NON-PARTISAN PLAYERS Not all the lawyers watching the polls Tuesday will be representing the candidates or the government. Non-partisan groups like the Committee of 70 and the Lawyers’ Committee for Civil Rights Under Law will also be deploying volunteers; those two groups have joined forces in training their watchers. “We have no authority, but we’re hoping that as non-partisan organizations, they will let us help mediate,” said John McKeever, a partner in Piper Rudnick’s Philadelphia office and a director of the Lawyers’ Committee. On Tuesday evening, Committee of 70 attorney Christopher Sheridan was at the University of Pennsylvania Law School for a watchers’ training session. “We’re here to witness things,” Sheridan told the crowd, which consisted mainly of international LLM students. He added later, “This will be the largest mobilization of field campaigns in recent memory.” Sheridan handed out reports to the volunteers that they are to fill out after visiting a particular polling station. The volunteer watchers were told that when they first arrive at a polling location, they should ask an election official to come outside — they can’t go in themselves — and see if the officials have noticed anything irregular. Each field report has a checklist of potential problems or complaints, including: illegal assistance of voters; political posters or signs that are within 10 feet of the voting room; polling places not open on time; denials of the right to vote by officials; and polling place locations that are inaccessible to people with disabilities. Sheridan instructed the volunteers to be diligent but not overzealous. “We’re not there to stir the pot,” he noted. It’s guaranteed that lawyers will be a major part of this year’s Election Day story. What’s not known is if the poll-watching lawyers will become the story. “Everyone here wants a nice, smooth election,” Schulgen told the attendees of Wednesday’s meeting. “The worst thing we can do is to over-interpret the law.” “I’m concerned that there’s going to be so many lawyers out there that they’ll create more problems than they’ll help,” McKeever cautioned. Warden said she expects several hundred volunteer attorneys to be watching the polls on behalf of her group. Tabas declined to make such an estimate.

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