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Tuesday, November 02, 2004

The New York Times > Washington > Election 2004 > Ohio: G.O.P. in Ohio Can Challenge Voters at Polls



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November 2, 2004
OHIO
G.O.P. in Ohio Can Challenge Voters at Polls
By JAMES DAO and ADAM LIPTAK

OLUMBUS, Ohio, Tuesday, Nov. 2 - In a day of see-sawing court rulings, a Federal appeals court ruled early Tuesday morning that the Republican Party could place thousands of people inside polling places to challenge the eligibility of voters, a blow to Democrats who argued those challengers will intimidate minority voters.

The ruling, by the United States Court of Appeals for the Sixth Circuit, in Cincinnati, reversed two lower courts that had blocked the challenges just a day before. It also came as squadrons of lawyers from both parties in Ohio and other swing states from Pennsylvania to Florida to New Mexico were preparing for Election Day skirmishes that will include using arcane laws that allow challenges at the polls.

The lawyer for a pair of Cincinnati civil rights activists who had challenged the Republican plans to challenge voters said he would appeal Tuesday morning's decision to the United State Supreme Court.

But it appeared likely that when Ohio polls open, the Republicans would be able to put 3,500 challengers inside polling places around the state. Democrats also planned to send more than 2,000 monitors to the polls, though they said those people would not challenge voters.

The cases may foreshadow lawsuits that are likely to be filed if the election is close in any state crucial to the Electoral College calculus. Lawyers for both sides are already examining disparities in election policies, nuances in court rulings and potential irregularities at polling places for material that may be used to challenge results in places where margins are paper thin.

The battle over Election Day challenges has been most intense in Ohio, not only because the race here is so close and so vital to President Bush and Senator John Kerry, but also because the Republican Party has announced larger and more aggressive plans to challenge voters here than in other states.

The Republicans contend that challenging - a practice that has been allowed under state law for decades but rarely used - will weed out fraud often missed by election workers. Democrats assert that the challenges would disproportionately single out low-income and minority voters, which Republicans deny.

In their separate rulings in the lower courts, Judge Susan J. Dlott of Federal District Court in Cincinnati and Judge John R. Adams in Akron agreed that procedures already existed to prevent fraud at the voting place. And they said aggressive, time-consuming challenges inside polling stations might create chaos and delays that could intimidate voters or rob them of the chance to vote.

In seeking the delicate balance between preventing fraud and upholding voting rights, the judges said, the scales should tip toward voting rights.

"Voter intimidation severely burdens the right to vote, and prevention of such intimidation is a compelling state interest," wrote Judge Dlott, who was appointed by President Bill Clinton. Judge Adams was appointed by President Bush.

Mark Weaver, counsel to the state's Republican Party, said: "The goal of the Ohio Republican Party is to guarantee a fair election for everyone. Each time the Democrats remove an additional safeguard, the potential for voter fraud increases."

Mr. Weaver argued that even if voters had been successfully challenged at the polls, they would have been allowed to cast provisional ballots, which are reviewed after Election Day to ensure that the voter is eligible. Democrats and many experts in election law say the rules for counting provisional ballots are varied and unclear, which could lead to valid ballots being rejected.

The Ohio Republicans have repeatedly argued that the Democratic Party and allied groups have engaged in widespread fraud. On Monday, they filed a motion in state court asserting that the Democrats and an independent group, America Coming Together, which supports Senator Kerry, have been contacting Republicans and giving them incorrect information about polling locations and other Election Day issues.

Democrats and the group denied the assertion.

In a similar and perhaps redundant decision in New Jersey, a federal judge, Dickinson R. Debevoise, ruled Monday that the Republican National Committee and people under its control may not challenge Ohio voters using a list of 35,000 people prepared by local Republicans here. The list is based on mail returned as undeliverable.

Judge Debevoise, ruling on a challenge filed by minority voters in Federal District Court in Newark, based his order Monday on a 1982 decision that prohibited the Republican National Committee from using so-called ballot security measures to frustrate efforts by members of minorities to vote. Judge Debevoise ruled that the 1982 decision, a consent order entered as part of a settlement in New Jersey, was national in scope and continued to be in effect.

Lawyers for the Republicans filed an immediate appeal to the federal appeals court in Philadelphia.

Even as the Ohio dispute was working its way through the courts, lawyers in other states were gearing up for Election Day challenges.

In Philadelphia, Republicans have said they plan to challenge 10,000 voters in the heavily black West Philadelphia section because of what they say are concerns of registration fraud. Democratic Party lawyers are expected to ask judges to remove the challengers if they are overly aggressive.

In Florida, Republicans have said they will challenge 1,700 people with felons convictions if they show up to vote. Democrats have mustered thousands of poll watchers whose job will be to ensure that voters are not intimidated.

In New Mexico, officials in both parties said they were placing hundreds of lawyers in polling places as monitors. Democrats have said they will not challenge voters, but Republicans have held out the possibility of doing so.

And in Wisconsin, a dispute over Election Day challenges was resolved amicably over the weekend when the two parties agreed to prepare a list of 5,512 people with questionable registrations, like those with discrepancies in their addresses. If those people attempt to vote, they will be asked to produce documentation showing their address. If they have no such proof, they will be allowed to vote, but their ballot will be tagged as challenged, meaning they might be rejected during a recount, officials said.

As the parties geared up for Election Day and beyond, it was clear both had marshaled impressive forces, though the Democrats claimed to have the edge in troop strength.

Robert F. Bauer, the Democratic National Committee's national counsel for voter protection, said the party had assembled the biggest collection of volunteer lawyers ever.

"It is the largest law firm in the United States," Mr. Bauer said of his team. "If we paid everyone at the prevailing market rate, it would rank among the more robust economies in the world."

Mindy Tucker Fletcher, a senior adviser to the Republican party in Florida, said she was unimpressed. "Why is that something to be proud of?" she asked, adding that "we have lawyers in every county, and at the state level."

Daniel J. Hoffheimer, the state legal counsel for the Kerry campaign in Ohio, said he had recruited lead lawyers in virtually every one of the state's 88 counties. He said three issues could ripen into postelection lawsuits if the vote was close in Ohio: provisional ballots, challenges to voters and absentee ballots.

Both sides agreed that no one knew where significant trouble would break out or what specific legal issues would be involved. But all concerned said they had tried to learn from the litigation chaos in Florida in 2000.

"Last time everybody was entirely unprepared," said Barry Richard, who represented the Bush campaign in Florida in 2000. "We had to organize very quickly. Nobody expected it to begin with and nobody expected the magnitude of it or the length of it. We suddenly found ourselves facing three trials, any one of which could have made the difference in the election."


James Dao reported from Columbus for this article, and Adam Liptak from New York.

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