The most significant factors are (1) Bush's current vote margin; (2) the number of provisional ballots; and (3) the rules applied in Ohio for counting those provisional ballots. Provisional ballots, you may recall, are ballots filed by persons whose eligibility to vote is called into question at the time they show up at the polls to vote. It is an option created by the Help America Vote Act enacted by Congress.
Whether the counting of the provisional ballots makes a difference depends, of course, on whether the number of those ballots exceeds the current vote margin by a sufficient number to think that Kerry would overcome Bush's current lead, which is about 140,000 votes. There are reports that there as few as 100,000 provisional ballots and as many as 200,000.
If there are 200,000, then the question becomes what standards to apply in deciding whether to count them. Here, it seems, the Ohio Secretary of State has not issued any clear guidance, leaving it up to local election boards throughout Ohio. Under Ohio law, where there is a disagreement within a board whether a vote should be counted, it requires a vote of at least three out of four board members to count a vote. There are two board members representing each of the two major parties, as I understand it.
The legal issues will concern what standards should apply in determining eligibility on matters like voting in the wrong precinct or irregular id, etc, how consistently those standards are applied throughout the State, and how consistently those standards must be applied throughout the State (and possibly country), consistent with the Sup Ct's 2000 ruling in Bush v. Gore. A lawsuit has already been filed, Schering v. Blackwell, alleging that the Secretary of State's Directive regarding the counting of provisional ballots is unconstitutionally vague in violation of the equal protection guarantee set forth in Bush v. Gore, because different county boards may count provisional ballots under inconsistent standards. A copy of the Secretary of State's directive can be found at http://moritzlaw.osu. edu/electionlaw/docs/ohio/directive2004-48.pdf
Also in Ohio, of course, there are likely to be many absentee ballots not yet counted, which can be expected (if national trends hold) to favor the President. There are also several other lawsuits raising issues about poll hours and machine issues, none of which I would expect becomes significant unless the provisional ballots somehow close the gap, which seems fairly speculative right now. Given the stakes, however, I would expect the Democratic lawyers to be fairly aggressive in pursuing the only options available, especially because they were faulted for being out muscled by Republican lawyers in Florida in 2000.
In Ohio, one lawsuit was filed late today to force polls to stay open past their closing time, on the ground that the voting delays (approx four hours) amounts to a violation of the constitutional right to vote. The claim is that there are insufficient number of voting machines in certain places. This strikes me as an unlikely ground for federal court intervention, so long as the polls are kept open to allow anyone to vote who shows up before the scheduled closing time. Another lawsuit brought late in Ohio claims that the Ohio Secretary of State violated the Bush v. Gore standard of equal protection by failing to establish consistent standards for the counting of provisional ballots within the State. Also in Ohio, earlier this afternoon, a federal district court judge issued a temporary restraining order directing the Ohio Secretary of State to order election officials to allow anyone who comes to the polls, claiming that they failed to receive their absentee ballot, to use a provisional ballot (which may or may not be counted later, depending on whether their claim can later be sustained).
Finally, in Florida, late today, a lawsuit was filed claiming a violation of voter constitutional rights based on the failure of the state election officials to mail absentee ballots in a timely fashion. There have reportedly been thousands of individuals who claim that they have not received their absentee ballots.
Whether any of this makes a difference depends, of course, on both the margin in the electoral college and the vote margin in Florida and Ohio. My working assumption right now is that differences of 2 percent or more would overwhelm any of these lawsuits because of the population size of these two states. Even one percent is doubtful to make a difference, but substantially less than that will shift the focus, unfortunately, back to the courts tomorrow.
The two judges in the majority differed on their formal grounds for reversal more than they did in their reasoning. Judge Rodgers concluded that the plaintiffs challenging the constitutionality of the Ohio law were not entitled to equitable relief because “plaintiffs do not appear likely to succeed on the necessary primary finding that the prescence of challengers burdens the right to vote.” The possibility of “longer lines,” Judge Rodgers contended, “does not amount to a severe burden upon the right to vote” as necessary to declare the state law unconstitutional. Judge Rodgers assumed, without deciding, that the plaintiffs had standing to bring the claim. Judge Ryan concurred, but on the ground that plaintiffs lacked standing. His opinion was rooted in his finding that had failed to establish that the “intimidation, chaos, confusion” they allege amounts to an “actual or imminent” injury as necessary to sustain standing. Judge Ryan, for that reason, however, also left open the possibility that the federal courts could later today concluded that the disruption in fact occurring was sufficient to have the injunction of challenging reinstated.
Judge Cole’s dissent is striking for its tone. Proclaiming the case “a matter of historic proportions,” he faults the majority for not giving adequate deference to the findings of the trial court concerning the burdens being imposed on the right to vote. Judge Cole also concluded that the balance of harms is not close, especially because the State of Ohio can adequately safeguard its interest in reducing voter fraud by the use of election officials, election judges, and other voters at the polling place without allowing these additional “partisan operatives” at the polls.
Justice Stevens’ refusal to grant a stay is rooted in three conclusions: (1) “reasoned judges can disagree about the issues”; (2) “on the record before me it is impossible to determine with any certainty the ultimate validity of the plaintiffs’ claims”; and (3) “practical considerations, such as the difficulty of digesting all of the relevant [material], and the challenge of properly reviewing all of the parties’ submissions as a full Court in the limited timeframe available, weigh heavily against granting the extraordinary type of relief requested here.” Justice Stevens’ opinion also included a striking statement directed toward the “elected officials and numerous election volunteers” in Ohio in his declaration of his “faith” that they would “carry out their responsibilities in a way that will enable qualified voters to cast their ballots.”
One obvious unfortunate feature of the Sixth Circuit’s ruling is that it repeats the kind of partisan breakdown evident in some other recent rulings and thus helps to perpetuate an appearance that substantially undermines the essential integrity of the federal courts. The two judges in the majority were both appointed by Republican Presidents (Reagan and George H.W. Bush) and the judge in the dissent was appointed by a Democratic President (Clinton).
Justice Stevens’ ruling is not that surprising. There are limits to the Court’s ability to intervene within some time constraints, limits that may have in fact been exceeded when the Court tried to issue a ruling in Bush v. Gore four years ago. The Court may be “Supreme,” but that does not they possess Super human capacities to solve complicated questions of law in the matter of minutes. It is hard to imagine the Court having any kind of reasoned deliberations between 3 and 5 in the morning, which is essentially what the circumstances would have required for any Court ruling to have then been transmitted and then implemented in a remotely orderly fashion. Finally, one cannot help, moreover, whether the Chief Justice’s own serious health problems may have played some role in Stevens’ decision to impose closure on the question by not even referring the matter to the full Court.
Both courts relied upon Anderson v. Celebrezze, 460 U.S. 780 (1983), which struck down Ohio’s restrictive time limit on ballot access for independent presidential candidates. Celebrezze instructs courts to consider the “character and magnitude” of the asserted interest to the right to vote, to weigh that interest against the State’s justification for the burden it has imposed, and to consider “the extent to which those interests make it necessary to burden the plaintiff’s rights.” Here, each court found that the challengers were likely to impose a severe burden on the right to vote, that the state had a strong interest in preventing election fraud, but that the presence of election judges at the polling places was sufficient to vindicate that interest. Analysis and Argument: Spencer and Summit County Democratic Central and Executive Committee are opening salvos in what may be massive litigation growing out of the sharp increases in voter registration this year. Each party has a different narrative it wishes to present regarding this increase, and each narrative is rooted in searing historical memories. For Democrats, the narrative is about discriminatory access to the franchise, violence, intimidation, and racial and gender subordination. The iconic image is of suffragists and African Americans marching, protesting, and dying in support of rights that citizens should be able to take for granted. For Republicans, the narrative is about vote fraud, big city machines, and ballot box stuffing. Their iconic image is of the votes from grave yards, empty apartment buildings, and even kennels in Texas and Illinois that put John F. Kennedy over the top in 1960. Which narrative deserves to prevail? There is truth on both sides. Vote fraud is a real problem, but so is vote suppression. There is much we can do to attack both evils without having to choose between them. In some situations, however, there will be an inevitable trade off between the solution to one problem and to the other. When there is conflict between the two objectives, how should we choose? I believe that when we strike a balance between the risks of suppression and fraud, we should worry more about suppression. There are two reasons for putting our thumb on this side of the scale. First, although both suppression and fraud risk the integrity and fairness of elections, suppression involves a direct and personal constitutional injury in a way that fraud does not. An individual denied her right to vote is prevented from exercising the fundamental prerogative and duty of citizenship. As noted above, this particular affront has a special history that ties it to subordination and second class citizenship. In contrast, voter fraud, while a serious problem, is not a personal constitutional affront. To be sure, it holds the potential of distorting the election’s outcome, but we readily tolerate many other features of our electoral system – the “winner-take-all features of the electoral college or the malapportionment of the Senate, for example – that can prevent the fair aggregation of preferences. Of course, there is a vast difference between legal distortions and illegal manipulation. Our willingness to tolerate legal distortions nonetheless demonstrates that there is an important difference between systemic and individual injury, particularly individual injury that excludes citizens from the political process. My second reason for being willing to tolerate some fraud so as to avoid suppression is tied to concerns about declining rates of political participation. To be sure, both fraud and suppression can produce demoralization that may reduce overall rates of participation, but the risk posed by efforts to detect fraud is greater. In a country where less than half the eligible voters cast their ballots, the last thing we need is to make voting more difficult, and this remains true even if the measures that make it more difficult avoid some fraud. To put the same point the other way, we should celebrate the explosion of interest in the 2004 election, and we should be willing to tolerate a marginal increase in electoral fraud if this is what proves necessary to sustain these gains. Of course, none of these generalities decide the cases presented to the District Courts in Spencer and Summit County Democratic Central and Executive Committee. These decisions are quite aggressive in protecting the right to vote, and it is easy to see how another court might have decided the cases differently. The Constitution places primary responsibility on the states for running presidential elections, and it is something of a stretch to read Calebrezzi, which involved a statute that directly and unambiguously prevented a presidential candidate from appearing on the ballot, as governing a case involving speculative problems with a facially unobjectionable state regulation. None of the plaintiffs were able to show the kind of individualized and palpable injury that is normally required in suits of this kind, and it is not obvious that the chaos the judges feared would in fact have occurred. But although reasonable people might disagree, I believe that both cases are rightly decided. The Courts were faced with the real prospect that thousands and thousands of Ohio citizens would have been denied the right to vote because of intimidation, confusion, and delay. Once the voting starts on Tuesday, there will be no reasonable chance to undo the damage. Faced with a choice between a marginal increase in the likelihood of fraud and a more than marginal risk that the voting rights of thousands of individual citizens might be denied, I have no doubt that the District Courts made the right decision.
