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State Net Capitol Journal: Election Cases Coming Down To Wire

As of late last month there were 15 legal cases pending across the country concerning new election restrictions. With roughly a month left before the presidential election, the cases leave judges with little time to resolve election issues in states where the margin of victory for either President Barack Obama or Mitt Romney may only be a few thousand votes.

Two of the most significant cases are in Ohio, a state where Obama is slightly favored, according to a recent Quinnipiac University/New York Times/CBS News poll, and which no Republican has ever been elected president without carrying. One of the cases centers around a challenge by the Obama campaign to the law passed by the state's GOP-controlled Legislature eliminating early voting in the three days before the election for all citizens except members of the armed services. In making its case, Obama for America claimed that in the three days leading up to the 2008 presidential election, 93,000 Ohioans cast their ballots. A federal judge ruled on Aug. 31 that the state could not take away voting privileges for some of its voters and not others. But Attorney General Mike DeWine, a Republican, appealed the ruling, contending the state has made such a distinction between military and civilian voters in the past, and the U.S. Court of Appeals in Cincinnati has agreed to expedite that appeal.

The other case concerns provisional ballots filed in the wrong precinct. Ohio rejected 14,355 wrong-precinct ballots in 2008, but U.S. District Judge Algenon Marbley in Columbus ruled on Aug. 27 the state could not throw out such ballots if they were filed in the wrong precinct because of poll-worker error.

Both cases are challenging, according to Edward Foley, director of the election law program at Ohio State University's Moritz College of Law in Columbus.

"The court may struggle with ambiguity in these two cases," he said. "Neither case is open or shut."

In Pennsylvania, the state Supreme Court, on Sept. 18, set aside a lower court ruling upholding the state's new voter ID law and directed the judge in that case to revisit his decision and assess whether all citizens would be able to obtain the forms of ID the law requires. A state analysis found that the law might exclude as many as 759,000 eligible voters from casting ballots in the presidential election, 9 percent of the electorate and significantly more than the 620,478 voters who comprised Obama's margin of victory in the state in 2008.

Two Democratic justices dissented from the majority in the high court's 4-2 decision, saying the court should have struck down the law outright, especially with less than two months to go before the election.

"The eyes of the nation are upon us," Justice Debra McCloskey Todd wrote, "and this court has chosen to punt rather than to act."

Last week, however, the lower court judge, Commonwealth Court Judge Robert Simpson, ruled that the state had, in fact, fallen short on ensuring citizens "liberal access" to proper ID and reversed his earlier decision upholding the law.

Another state where election-related legal action appears to be settled, at least for this year, is Wisconsin. Two lower court judges in Madison, Dane County Circuit Court Judges Richard Neiss and David Flanagan, declared the state's new voter ID law unconstitutional in separate decisions in March and July, respectively. And both judges denied the state a stay of their judgments pending further legal action.

"The inescapable reality is that the need for stability, predictability and adequate preparation for the electoral process strongly weighs against this court granting a stay and thus changing the voting process at this late hour," Flanagan stated.

Last month, the state Supreme Court refused to grant a stay as well, meaning the law will not be in place for the upcoming election.

But other cases are still pending in several other states besides Ohio and Pennsylvania, including Alabama, Colorado, Florida, Louisiana, Nevada, New Jersey, New York, South Carolina and Texas, according to Ohio State's Moritz College. According to Foley, however, the timing of the cases is less unusual than the number of them.

"It's not unprecedented to have these last-minute lawsuits over voting process," he said. "They've just snowballed since Bush v. Gore," the case that effectively decided the 2000 presidential election. (BLOOMBERG BUSINESSWEEK, OHIO STATE UNIVERSITY MORITZ COLLEGE OF LAW, STATELINE.ORG, STATE NET)

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