WASHINGTON – 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, legal battles continue in six swing states where court challenges await decisions by state and federal judges.
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Last month, U.S. courts rejected election-related laws passed by GOP-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 ID 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,” said Hasen, author of “The Voting Wars: From Florida 2000 to the Next Election Meltdown.”
Much of the litigation stems from revisions of election procedures Republican lawmakers passed after President 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 for Obama.
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.
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 Thursday by a federal court in New Orleans.
Additionally, a panel of three federal judges ruled electoral districts drawn by Texas’ 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 Clinton, three nominated by Obama and two chosen by Republican President George W. Bush.
A state judge in Iowa heard arguments Thursday over challenges to Republican-backed rules there aimed at purging non-citizens from the rolls.
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.
A federal judge in Ohio, 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.
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.
Across the country, 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.
“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. “Until 10 years ago, there was no early voting.”
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.
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.
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.
Florida, with 29 electoral votes, combines with Ohio and Pennsylvania to make up almost 25 percent of the 270 needed to secure the presidency.
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 non-white voters’ ability 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.
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 of federal district and appeals court judges.
The state is still seeking approval of an updated version of its early-voter plan.
“These are very high stakes,” said Roger Clegg, president of the Center for Equal Opportunity, a self-described conservative think tank that opposes racial preferences. “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.”
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