Voters could face major challenges as they try to get their ballots counted during the next 24 hours and beyond, and that means some election-related legal battles could be waged long after the polls close Tuesday night, according to voting law experts at the Brennan Center for Justice at New York University School of Law.
Early voters in Florida faced a bomb scare and lines more than six hours long. A fight is brewing over how Ohio officials verify provisional ballots. Election officials and voters have displayed confusion over requirements in new voter ID laws. And citizen groups have promised to stalk polling places in an attempt to crack down on voter fraud.
“All [this] can lead to post-election litigation and gum up the results,” said Wendy Weiser, director of the democracy program at the Brennan Center, which aims to ensure citizens are given the chance to vote. Weiser, Lawrence Norden, the program’s deputy director, and center President Michael Waldman spoke to reporters on a November 5 press conference call.
A federal lawsuit seeking emergency injunctive relief has already been filed in Florida, and Ohio’s provisional ballots have been the subject of court rulings this month. The center is considering legal action in Ohio, where an estimated 200,000-plus provisional ballots could remain uncounted because election officials search registration rolls using only exact matches for the voters’ names and addresses.
“We are going to see a huge number of voters that could be affected if they are using a faulty system for looking up ballots,” Weiser said.
Ohio election officials have until 10 days after the election to count those provisional ballots, meaning Tuesday would just be the beginning of a legal fight if the race comes down to the battleground state, and if the vote totals are close enough.
Both presidential campaigns are organizing thousands of lawyers to be on hand in key states for ground-level “voter protection operations,” while other lawyers in D.C. will coordinate efforts with their state-based counterparts, or act as legal resources for issues including voter eligibility and broken voting machines.
If the presidential race comes down to a razor-thin margin in a state, post-election legal challenges will likely focus on ballots that will not yet have been counted, said Norden.
Challenges could be made in cases including provisional ballots, rejected absentee ballots, military and overseas ballots, as well as “under votes”—when voters choose not to vote in a specific race—and “over votes”—when voters select more than one candidate in a particular race—which are hand-counted during recounts.
Voters have also been confused by two years of states passing laws that could make it harder for an estimated 5 million voters to cast ballots, and the legal battles that have blocked, blunted or postponed the laws, said Waldman.
In Texas, voter registration documents still inform voters they would have to show a photo ID at the polling place, even though a court struck down that provision of the law, Weiser said. Voters are being turned away for not having an ID even in states where no ID laws were passed.
The center is also preparing to combat challenges from a new band of groups like True The Vote, which has announced it will send a million citizens to targeted precincts across the country on Tuesday to challenge voter fraud.
“We do not yet know whether they’re going to succeed,” Weiser said.
The U.S. Justice Department has said it also will be vigilant on Election Day. Each of the 94 U.S. attorney’s offices across the country has an assistant U.S. attorney responsible for responding to allegations of election fraud and voter intimidation. They will coordinate with state authorities, FBI officials and DOJ lawyers in the Civil Rights Division’s voting and criminal sections, as well as the Criminal Division’s public integrity section.
Contact Todd Ruger at email@example.com.