Whose votes count, whose don't? The legal landscape before Election Day

Here's how judges have ruled in four major election-law flash points: voter ID laws, early voting, provisional ballots, and the purging of voter registration rolls.

Not since Bush versus Gore in the 2000 election have so many lawyers and so many judges been involved in determining the intricate details of how a presidential election would be conducted – and potentially decided.

Despite an unprecedented blitz of preelection litigation in recent months, it remains unclear whether controversial changes in state election laws involving voter identification, early voting, and provisional ballots, among others, will influence who wins and who loses on Election Day.

But this much is clear: The legal landscape on the eve of the 2012 presidential election generally favors the status quo that existed prior to passage of the new laws.

The rough trend among judges, appointed by both Republicans and Democrats, has been to decide preelection disputes in favor of cutting back on election-law changes that they deemed likely to present obstacles to prospective voters.

The decisions have sought to foster more access to the polls at the expense of laws passed by Republican-controlled state legislatures that lawmakers said were aimed at boosting the integrity of election results.

In the bitter rhetoric of the campaign, the battle was between what Democrats denounced as voter suppression measures and what Republican lawmakers touted as necessary antifraud provisions.

In the end, it appears the 2012 presidential election will be decided not through fraud or suppression, but the old-fashioned way – at the ballot box.

“Nearly all of the worst new laws to cut back on voting have been blocked, blunted, repealed, or postponed,” according to a recent report by the public-interest law group Brennan Center for Justice, which opposed the Republican-passed measures.

“Laws in 14 states were reversed or weakened,” the report says. “As a result, new restrictions will affect far fewer than the 5 million citizens we predicted last year. For the overwhelming majority of those whose rights were most at risk, the ability to vote will not be at issue on November 6th.”

The battles weren’t just over which election rules would apply. Public opinion was also part of the calculus.

A concerted campaign to portray Republican election reforms as an attempt to steal the election through voter suppression helped Democrats energize base voters.

For Republicans, the raging debate helped transmit a deterrent message to potential fraudsters that cheaters would be discovered and prosecuted.

What follows is a review of four major election-law flash points: voter ID laws, early voting, provisional ballots, and the purging of voter registration rolls.

Voter ID laws

Voter ID laws were passed in at least 11 states in recent years.

Opponents of the laws said they would probably hurt President Obama’s reelection chances by disenfranchising a considerable number of low-income, older, and minority voters who lack the necessary identification and the means to obtain it. Some called it the modern-day equivalent of a poll tax.

Supporters of ID laws disputed estimates that hundreds of thousands of prospective voters were without photo identification and played down the burden of obtaining acceptable identification. They argued that the US Supreme Court upheld a voter ID law in Indiana in 2008, establishing that such measures do not violate US constitutional protections.

Key legal battles emerged in Pennsylvania, Wisconsin, Texas, and South Carolina.

In Pennsylvania, a Republican judge determined that the commonwealth’s new ID law did not violate the Pennsylvania constitution, but he also ruled that there was not enough time left before the election for the state to issue identification cards to those residents lacking them. The judge ruled that election officials could ask for photo ID at the polls, but that any voter failing to provide it must be given a chance to cast a regular ballot anyway.

In Wisconsin, two Democratic judges ruled that the voter ID law in that state violated the Wisconsin constitution. Both issued injunctions permanently blocking enforcement of the law. State officials sought an expedited appeal to the state Supreme Court, but the request was denied. Appeals are pending.

Officials in Texas and South Carolina defended their ID laws by arguing that they were patterned on the Indiana statute upheld by the US Supreme Court.

But because both of those states are listed as covered jurisdictions under Section 5 of the Voting Rights Act (VRA) – because of a past history of racial discrimination in voting – they were required to submit their voter ID laws to Washington for preapproval.

The Obama Justice Department objected to the ID laws in both states. The issue went to a special three-judge court in Washington.

Under Section 5 of the VRA, a covered jurisdiction must prove that its proposed new election law will not have a discriminatory retrogressive impact on minority voting. 

That is a substantially more difficult standard to meet than the broader constitutional test established by the US Supreme Court in the Indiana voter ID case.

In Wisconsin and Pennsylvania, challenges to the ID laws in those states were litigated by civil rights groups on behalf of minority voters. In contrast, the Texas and South Carolina laws were challenged by the Justice Department under its authority via the VRA.

In the Texas case, a three-judge panel invalidated the law on the grounds that the photo ID requirement would create burdens that fall disproportionately on the poor, including a large number of African-Americans and Hispanics. The panel was made up of judges appointed by Presidents Obama, Bush II, and Clinton.

In the South Carolina case, a different three-judge panel (made up of two judges appointed by Mr. Bush and one by Mr. Clinton) found that the ID law did not have a discriminatory regressive effect on minority voters.

The court granted preclearance for the law to be enforced in elections beginning in 2013 – but not the current election. The judges said more time was necessary for South Carolina to fully implement the new ID law in a way that would avoid any discriminatory retrogressive effect on African-American voters in South Carolina.

Thus, in four different voter ID cases decided by different judges with different political orientations, two of the laws were struck down and two were upheld. But, perhaps most significant, all four were effectively blocked from use during the 2012 election.

Early voting

Another hotly contested area of preelection litigation involved early voting.

The Republican-controlled legislatures in Ohio and Florida passed laws cutting back on the amount of time available to cast an early ballot before Election Day on Nov. 6.

The Obama Justice Department, the Obama reelection campaign, and Obama supporters argued that minority voters were more likely than other voters to cast their ballots on the weekend before Election Day.

They cited a successful “souls to the polls” campaign in which religious groups provided buses to take parishioners to vote after the Sunday service. They accused Republican lawmakers of trying to suppress voters likely to support Mr. Obama.

In Ohio, the new law ended early voting for most voters on the Friday before Nov. 6. But the legislature allowed military and overseas voters to continue casting early ballots Saturday, Sunday, and Monday before Election Day.

The Obama campaign filed suit, arguing that if some voters were allowed to continue to vote over the weekend, then all voters should be allowed to do so.

A federal judge and a federal appeals court panel agreed. The court ordered Ohio election officials to extend early voting for three more days – Saturday, Sunday, and Monday – prior to Election Day.

Similar to the effort in Ohio, the Legislature in Florida passed a measure in 2011 that ended early voting on the weekend before the election.

Under the new law, early voting would start Saturday, Oct. 27 – 10 days before the election – and end on Saturday, Nov. 3 – two days before the election.

As in Ohio, minority groups complained that it might undermine turnout among black and Latino voters.

Once again, Section 5 of the VRA provided the Obama Justice Department with a strict legal standard to challenge a new law passed by a Republican-majority legislature.

Because five of Florida’s 67 counties are covered jurisdictions under Section 5 of the VRA, the state was required to prove that the election-law changes – as implemented in those five counties – would not result in discriminatory retrogression of minority voting.

None of the five counties had offered early voting on Sunday in prior elections. So that change could not be ruled retrogressive in Florida.

The three-judge court (made up of judges appointed by Clinton) ruled that the new law did not comply with VRA requirements because it allowed counties to sharply reduce the total number of hours of early voting from 96 to 48.

The judges suggested that if the five counties agreed to maximize the number of early voting hours to 12 hours per day over an eight-day period (including Sunday voting on Oct. 28), it would probably satisfy the requirements of the VRA.

The Justice Department agreed and dropped its opposition to the early voting change.

Despite the agreement, several groups continue to object to the loss of early voting during the two days prior to the election. The chairman of the Florida Democratic Party filed suit over the weekend asking a judge to order an extension of early voting.

Provisional ballots

With polls showing the presidential race in a virtual tie in Ohio, election lawyers are searching to identify a source of votes capable of breaking an Election Day deadlock.

Provisional ballots offer a potential treasure-trove of such votes because they involve a somewhat subjective decision by election officials whether to count a particular vote. Most important, the subjective decision is always made after the election.

That means if an election remains tied after counting all regular and absentee votes, provisional ballots might provide the margin of victory.

Provisional ballots are provided to voters who arrive at the polls without proper identification, who arrive at the wrong location to vote, whose name does not appear on the voter rolls, or who have requested an absentee ballot but nonetheless show up in person at the polls.

Voters are given 10 days to provide extra information to election officials. If election officials can verify the validity of the ballot, it is counted.

In Ohio, lawyers noticed a particularly large number of provisional ballots that are routinely rejected. They involved voters who cast their ballot in either the wrong voting place or the wrong precinct.

Part of the confusion is because Ohio allows more than one precinct to vote at the same voting place. So even though a voter arrived at the correct voting place, he or she might be directed to the wrong precinct, where the voter would be required to cast a provisional ballot.

Under Ohio election law, officials were required to automatically reject provisional ballots cast in either the wrong voting place or the wrong precinct.

These are not minor numbers. During the 2008 election that swept Obama into the White House, Ohio officials disqualified 14,336 provisional ballots solely because they were cast in either the wrong voting place or the wrong precinct.

In 2010, officials rejected 11,775 provisional ballots cast in the wrong location.

Recognizing that these votes would have been valid but for the Ohio rule, lawyers for a coalition of labor unions asked a federal judge to invalidate the provision.

The judge, an appointee of Clinton, struck down the rule and ordered Ohio officials to count provisional ballots cast in the right polling location but the wrong precinct. The judge reasoned that the mistake was most likely caused by poll-worker error, not the voter, and that a voter should not be disenfranchised because of an official’s mistake directing a voter to the wrong precinct.

Roughly two months later, on Oct. 26, the same judge expanded his ruling to require that officials count provisional ballots cast in both the wrong location and the wrong precinct. The ruling came on the 18th day of early voting in Ohio and 11 days before Election Day.

Given the persistent closeness of the race in Ohio, the Oct. 26 ruling was potentially a game changer. It might have freed up thousands of new votes that otherwise would have been tossed out.

State election officials appealed that ruling, and a three-judge appeals court panel reversed the decision.

The appeals court judges, all Republican appointees, said the judge had abused his discretion by expanding his earlier ruling.

They said the federal judge was correct to credit a provisional ballot cast in the wrong precinct when the error belonged to a poll worker. But, the appeals judges said, a voter who arrives at the wrong polling place must share some of the blame for the mistake.

The appeals court also said it was wrong for the judge to attempt to order a last-minute change in voting procedures.

“The expanded injunction opens the door for steering last-second voters to convenient (though incorrect) polling places, in hopes that some of the votes will count,” the court said.

Purging voter registration rolls

State election officials are required by law to maintain the accuracy of the rolls of registered voters.

In mid-2011, the Florida secretary of state asked for help to verify that only US citizens were on Florida’s voter rolls. State databases suggested that some noncitizens had registered to vote. To double-check the suspicion, officials contacted the Obama administration’s Department of Homeland Security.

DHS maintains a database of legal immigrants and naturalized citizens. Congress instructed federal officials to make immigration information available to the states upon request. But instead of cooperating, the Obama administration declined for more than a year to respond to the state’s call for help.

When Florida tried to move forward with partial information from an imperfect state database, the president’s political allies criticized Republican leaders in Florida for attempting to suppress the Latino vote by improperly removing suspected noncitizens from the voter rolls.

State officials continued to request access to DHS’s immigration database that would allow them to double-check their records and easily identify noncitizens who had registered to vote. But the Obama administration offered no help.

Instead, in May 2012, the Justice Department’s Civil Rights Division filed suit against Florida, arguing that under a federal voter protection law, the state could not remove anyone from the list of registered voters within 90 days of a federal election.

The argument was made three months before the Florida primary, but it also came more than a year after Florida had asked the Obama administration for help with the database.

A Justice Department brief filed in the lawsuit makes no mention of Florida’s still-pending request to DHS. Instead, it accused Florida officials of dragging their feet. “[Florida] could have undertaken this database matching program well before the 90-day quiet period, if it chose,” the brief said.

In essence, the Justice Department was arguing that even if Florida verified noncitizens on its voter rolls, it must allow those noncitizens to cast their ballots because no changes are permitted under federal law within the 90-day limit.

A federal judge rejected the government’s argument and agreed with Florida.

“[The law] does not require a state to allow a noncitizen to vote just because the state did not catch the error more than 90 days in advance,” US District Judge Robert Hinkle said in an order denying the government’s requested injunction.

Judge Hinkle added that noncitizens have no right to register to vote in the first place and could be removed whenever they are discovered on the rolls.

A few weeks later, Florida sued DHS for access to the federal immigration database. After Hinkle’s denial of the injunction, DHS officials agreed to allow Florida – and other states – access to its database.

Florida eventually identified 207 suspected noncitizens on its voter rolls, more than 30 of whom are believed to have cast votes in earlier elections.

Colorado’s secretary of state adopted a similar program to remove any foreign citizens from the state’s voter rolls. As in Florida, he had requested access to the DHS database and was denied access. After Florida reached its agreement with DHS, Colorado was also granted access to the federal database.

Colorado identified 441 suspected noncitizens on its list of registered voters.