The November presidential election, widely expected to rest on a final blitz of advertising and furious campaigning, may also hinge nearly as much on last-minute legal battles over when and how ballots should be cast and counted, particularly if the race remains tight in battleground states.
In the last few weeks, nearly a dozen decisions in federal and state courts on early voting, provisional ballots and voter identification requirements have driven the rules in conflicting directions, some favoring Republicans demanding that voters show more identification to guard against fraud and others backing Democrats who want to make voting as easy as possible.
The most closely watched cases — in the swing states of Ohio and Pennsylvania — will see court arguments again this week, with the Ohio dispute possibly headed for a request for emergency review by the Supreme Court.
In Wisconsin, the home state of the Republican vice-presidential candidate, Representative Paul D. Ryan, the attorney general has just appealed to the State Supreme Court on an emergency basis to review two rulings barring its voter ID law. But even if all such cases are settled before Nov. 6 — there are others in Florida, Iowa and South Carolina — any truly tight race will most likely generate post-election litigation that could delay the final result.
“In any of these states there is the potential for disaster,” said Lawrence Norden of the Brennan Center for Justice at New York University School of Law. “You have close elections and the real possibility that people will say their votes were not counted when they should have been. That’s the nightmare scenario for the day after the election.”
In the 2000 presidential election, a deadlock over ballot design and tallying in parts of Florida led the Supreme Court, in a 5-4 vote, to stop a recount of ballots, which led to George W. Bush defeating Al Gore. Since then, both parties have focused on voting procedures.
The Obama campaign, for example, brought suit in Ohio over its reduction of early voting weekends used more by blacks than other groups.
Republicans have expressed concern over what they call voter integrity. They say they fear that registration drives by liberal and community groups have bloated voter rolls with the dead and the undocumented and have created loose monitoring of who votes and low public confidence in the system. They have instituted voter identification rules, cut back on early voting and sought to purge voter lists by comparing them with others, including those of the Department of Homeland Security.
Catherine Engelbrecht, the president of True the Vote, said the job of those trained would be to “observe, document and report on activities inside the polls that are not in keeping with state law.”
Two groups on the other side of the political spectrum, Demos and Common Cause, are issuing a report on Monday, “Bullies at the Ballot Box,” that warns of “a real danger that voters will face overzealous volunteers who take the law into their own hands to target voters they deem suspect.”
The voters that the groups say they are most worried about are members of minority groups.