Republicans Are Losing Election-Law War as Balloting Nears

Republicans are losing most of the
court fights with Democrats over whether GOP-backed state voter
regulations will illegally suppress turnout among the poor and
minorities in the Nov. 6 presidential contest.

As the general election begins in earnest following the
conclusion of the Democratic national convention, legal battles
continue in a half dozen swing-states where court challenges
await decisions by state and federal judges.

Last month, U.S. courts rejected election-related laws
passed by Republican-controlled legislatures in Ohio, Florida
and Texas, finding they violated the right to vote. At least 14
cases challenging voter-list purges, provisional-ballot rules,
early voting curbs or photo identification mandates are pending
in Wisconsin, Pennsylvania, Colorado, Iowa, Florida and Ohio.

Court rulings in those states, which both parties claim
they can win in November, could tip the presidential election if
the race is as close as it was in 2000 between Al Gore and
George W. Bush, said Rick Hasen, a law professor at the
University of California, Irvine.

“If the outcome depends on Pennsylvania, and Pennsylvania
is extremely close, then these kinds of cases can be
determinative,” Hasen, the author of “The Voting Wars: From
Florida 2000 to the Next Election Meltdown,” said in a
telephone interview.

Election Procedures

Much of the litigation stems from revisions of election
procedures Republican lawmakers passed after President Barack Obama’s election in 2008. Proponents argue the laws are
necessary to prevent fraud and help elections run smoothly.
Democrats and voter advocacy groups say the measures are aimed
at disenfranchising likely Democratic voters in a veiled effort
to limit turnout forObama.

“We will continue to commit all the resources and energy
necessary to protect voters’ rights,” Bob Bauer, the top lawyer
in the Obama campaign, said in an e-mail. “This election should
be decided by all eligible voters fully participating, and not
by an electorate that is cynically limited to satisfy partisan
interests.”

Amanda Henneberg, a spokeswoman for Republican nominee Mitt Romney’s campaign, said “Governor Romney believes that every
legal vote should count.”

Besides the cases in so-called battleground states, at
least eight more challenges to election law procedures are
pending in state and federal courts. Of those in swing states,
at least five are in Florida. Another four are under way in
Ohio.

Seven Rulings

Last month, in seven court rulings voiding Republican-
sponsored measures, federal judges rejected new limits on early
voting in Ohio, turned down a requirement for photographic
identification in Texas, and blocked “burdensome” rules
regulating voter-registration drives in Florida and Texas. The
Texas ruling on registration was put on hold Sept. 6 by a
federal appeals court in New Orleans.

Additionally, a panel of three federal judges ruled
electoral districts drawn by Texas’s Republican-controlled
legislature discriminated against minorities in violation of the
Voting Rights Act. A judge-approved interim map is set to be
used instead.

The August rulings were handed down by seven judges
appointed by Democratic President Bill Clinton, three nominated
by Obama and two chosen by Republican President George W. Bush.

A state judge in Des Moines, Iowa, heard arguments on Sept.
6 over challenges to Republican-backed rules there aimed at
purging non-citizens from the rolls.

Wisconsin Appeal

In Wisconsin, Attorney General J.B. Van Hollen, a
Republican, is waiting to hear whether that state’s supreme
court will consider his appeal to reinstate a photo-ID law that
was blocked by two judges.

The Ohio battle over early voting and provisional ballots
illustrates what’s at stake in the election litigation. No
Republican has been elected president without carrying that
state’s 18 electoral votes. U.S. Vice President Joe Biden, at a
campaign rally in Lordstown, Ohio, on Aug. 31, said Obama will
get a second term if he takes the state.

A federal judge there, ruling Aug. 31 in a lawsuit brought
by the Obama campaign, ordered the restoration of three days of
early voting that the Republican-controlled legislature cut
back. In that case, Obama for America claimed that, in the three
days leading up to the 2008 election, 93,000 Ohio voters cast
their ballots.

Ohio Ballots

Four days earlier, another judge in Ohio ruled provisional
ballots can’t be thrown out if they’re filed in the wrong
precinct because of poll-worker error. In 2008, Ohio rejected
14,355 so-called wrong-precinct ballots, according to the
judge’s decision.

Obama won the state by 262,224 votes in 2008.

“Recent experience proves that our elections are decided,
all too often, by improbably slim margins — not just in local
races, but even for the highest national offices,” U.S.
District Judge Algenon L. Marbley said in his Aug 27 ruling,
citing the U.S. Supreme Court’s decision in Bush v. Gore.

All told, across the U.S., there are at least eight
challenges to state voter-identification laws, six to state
redistricting plans, four to early voting restrictions, four to
voter roll purges, two to registration rules and two to ballot
disqualification measures.

The challengers so far have won favorable rulings in about
10 of the cases.

Right, Privilege

“The courts are making a mistake by saying early voting is
a right and not a privilege,” Hans von Spakovsky, a senior
legal fellow at the conservative Heritage Foundation, said in a
telephone interview. “Until 10 years ago there was no early
voting. It will be interesting to see what happens in those
cases as they get appealed.”

Republicans scored what might have been their only
battleground-state victory in the past month when elected
Republican Judge Robert Simpson in Pennsylvania upheld a state
law requiring a photo ID to vote. That decision has been
appealed to the state’s supreme court, where arguments before
three Democratic and three Republican justices are scheduled to
begin Sept. 11.

State lawyers said in a court filing that the ID
requirement won’t deprive citizens of any rights. The statute
only tightens voter identification requirements to “increase
public confidence that only legally registered voters are
voting,” Alfred Putnam Jr., an attorney for Governor Thomas W. Corbett. said in the filing.

Obama won Pennsylvania by 620,478 votes in the last
presidential election, claiming 55 percent of the total and all
of its 20 electoral votes. The American Civil Liberties Union,
which sued to block the photo ID law, argued the requirement may
end up keeping more people away from the polls than the number
that would have constituted Obama’s margin of victory.

Pennsylvania ID

A state analysis, presented in court, showed as much as 9
percent of Pennsylvania’s electorate might be unable to vote in
November because of the law.

Meanwhile, the U.S. Justice Department is investigating
whether the Pennsylvania law violates Section 2 of the Voting
Rights Act, which prohibits states from enacting a voting
standard that discriminates against minorities. In a July 23
letter to Secretary of State Carol Aichele, the Justice
Department asked to review Pennsylvania’s voter registration
lists in addition to driver’s license and personal
identification card rosters.

Matthew Keeler, a spokesman for Aichele, didn’t respond to
a call or e-mail seeking information on the U.S. probe. Mitchell Rivard, a spokesman for the Justice Department, declined to
comment.

Florida, with 29 electoral votes, combines with Ohio and
Pennsylvania to make up almost 25 percent of the 270 needed to
secure the presidency.

Florida Counties

In Florida, a state law truncating early voting was
rejected for five counties subject to supervision under the
Voting Rights Act. A three-judge panel in Washington ruled Aug.
16 that the change could harm the ability of non-white voters to
cast their ballots.

In the 2008 election, 54 percent of black voters in Florida
voted early — twice the rate for whites, the judges said in
their ruling. According to a report paid for by the Democratic
National Committee, 1.1 million blacks voted in the state in
2008. Obama won Florida by 236,450 votes.

The early voting cutbacks were among several changes in
election procedures passed by the Republican-controlled Florida
legislature last year.

Florida is one of 16 jurisdictions with a history of voting
rights violations that under Section 5 of the Voting Rights Act
need pre-approval from either the Justice Department or a
special panel composed of federal district and appeals court
judges.

The state is still seeking approval of an updated version
of its early voter plan, which it said in a court filing is
needed by the middle of September.

Voter Registration

In another lawsuit in Florida, U.S. District Judge Robert Hinkle in Tallahassee ruled May 31 that conditions the state
imposed on groups signing up voters, such as requirements that
voter-drive groups turn over registration materials to the state
within 48 hours of completion or face fines of as much as
$1,000, are unconstitutional.

The League of Women Voters of Florida and Rock the Vote
sued to overturn the rules, which were permanently blocked on
Aug. 31.

“These are very high stakes,” Roger Clegg, president of
the Center for Equal Opportunity, a self-described conservative
think tank that opposes racial preferences, said in a telephone
interview. “The election is likely going to be close so there’s
a greater fear that voter fraud could make a difference, and to
be fair, there’s also greater concern that not allowing people
who ought to be able to vote an opportunity to vote could make a
difference.”

The Ohio early voting case is Obama for America v. Husted,
12-00636, U.S. District Court, Southern District of Ohio
(Columbus). The Florida voter registration case is League of
Women Voters v. Browning, 11-00628, U.S. District Court,
Northern District of Florida (Tallahassee). The Pennsylvania
case is Applewhite v. Commonwealth of Pennsylvania, 71 MAP 2012,
Supreme Court of Pennsylvania. The Texas redistricting case is
Texas v. U.S., 11-cv-01303, U.S. District Court, District of
Columbia (Washington).

To contact the reporter on this story:
Tom Schoenberg in Washington
at tschoenberg@bloomberg.net

To contact the editor responsible for this story:
Michael Hytha at mhytha@bloomberg.net