Tne newswires are buzzing with electoral problems in early voting. One can count almost 800 such newsfiles. Many would want to think that the
determination of presidential elections by the Supreme Court is a once-in-a-lifetime event. However, there are a number of cases already in the state
courts that could have a material impact on the election and a number of other plausible ways ways for new ones to start. Fights are already underway
about the new provisional ballot rules and the constitutionality of Colorado's EV splitting question. The likely problems with first run electoral
technology (in Florida among other states) can provide fertile ground.
Florida 2000: The Sequel
Five ways the election could end up in court, again.
Nightmare Scenario No. 1: Litigation Following Voting Glitch
So, now we have jurisdictions rolling out their voting equipment for the first or second time for use in a presidential election. This is like opening
the first draft of your play on Broadway. We should expect technical problems with new systems, especially when those systems have to be operated by
overworked, underpaid, and undertrained poll workers. Just think of an 80-year-old poll worker trying to reboot a new electronic voting machine. And
only last week in Florida—which decided to move to electronic voting—we witnessed the spectacle of outgoing Palm Beach County elections official
Theresa LaPore (of "butterfly ballot" fame) explaining away a computer crash that forced a pre-election test of electronic voting machines to be
Voting glitches can cause any number of problems that may end up in court. We could see a demand for a recount (something that could be compounded
into an even bigger problem if the recount involves a problem with electronic voting machines that fail to produce a paper record). Widespread machine
failure could cause delays at the polls—which will inevitably lead to calls to keep them open longer, followed by potential litigation over whatever
administrative or legal decision is made. And with the parties expected to have armies of lawyers in battleground polling areas on Election Day, you
can be sure any problem will be pounced on promptly
Nightmare Scenario No. 2: Litigation Over Whose Vote Counts
The Help America Vote Act, which was supposed to make things better after Florida, may make things much worse in the short term. One HAVA provision
requires states to allow voters who believe themselves eligible to vote, but whose names do not appear on the voter rolls, to cast a "provisional
ballot," with election officials later determining whether those ballots should be counted. But HAVA is unclear on whether a voter who casts a vote in
the wrong precinct (but the right county) is entitled to have that vote counted.
You would think that with two weeks to go before the election, this ambiguity would have been resolved. But litigation in at least four states on this
issue is just getting under way. Courts have reached somewhat conflicting decisions on this issue in Ohio, Florida, Colorado, and Missouri, and
further appeals and decisions are coming. The issues may not be finally resolved in time for Election Day.
Nightmare Scenario No. 3: Litigation Over Colorado's Amendment 36
On Nov. 2, Coloradans will consider Amendment 36—a voter initiative—that, if passed, will change the way that Colorado's nine electoral votes are
allocated from a winner-take-all to a proportional system. This initiative unambiguously states that it is intended to apply to this year's
presidential election. So, the winner in Colorado could end up with 4 or 5 votes rather than 9, and the election could then hang in the balance over a
technical legal question: whether Amendment 36 can properly apply to this election.
The major parties so far have stayed out of this particular dispute, but a businessman has just filed suit in federal court claiming that the
retroactive nature of the amendment violates the constitutional right to due process (a somewhat dubious argument) and putting forth the more serious
argument that Amendment 36 violates Article II of the Constitution, which vests the state legislature with the power to pick the rules for choosing
Please visit the link provided for the complete story.
Given that litigation is already underway in a number of states, it looks very much like the political parties have thought in advance and prepared
for the prospect of another election deciding Supreme Court vote.
The stories about election problems are already streaming out of the early voting (see links below). Can you imagine what it will be like after this
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