Oct. 30, 2008 -- A record number of Americans are voting early this year, and Election Day turnout is expected to be so high that experts predict long, snaking lines -- and plenty of legal challenges.
If the turnout is as big as expected, and the race is close, lawyers for both parties could file challenges on issues related to provisional and absentee ballots, the expertise of poll workers, the efficacy of voting machines and the hours of operation at polling places.
"A key question," says Edward B. Foley, of Moritz College of Law at Ohio State University, "is whether the infrastructure can handle the volume that we will see."
The pressure on the system will be eased in those states where voters have taken advantage of the early vote, but in a battleground state such as Pennsylvania, with no early vote, experts hope that election officials have adequately prepared the system.
Brenda Wright, legal director of the voting rights group Demos says, "There is a lot of attention being paid to preemptive policies, for instance encouraging people to take advantage of early voting and encouraging election officials to have adequate supplies of paper ballots if the machines break down."
But Wright says, "For a lot of voting-rights advocates this is a good news, bad news election. The good news is we expect more people to turn out politically than any presidential election in decades. The bad news is in many places our election system may not be fully prepared to handle the numbers."
Laws regarding elections vary widely from state to state, and many legal challenges are already in front of courts, but on Election Day the campaigns will have to make strategic decisions on how far to push challenges and whether to go to court. Issues expected to be challenged include:
Provisional ballots. By definition, provisional ballots, those that contain contested information, are vulnerable to challenge on issues such as a disputed address. Because big turnout is often correlated to new registrations, experts believe that those new registrations could translate into more provisional ballots. Although it varies from state to state, these ballots are often counted days after the election is over. Large numbers of provisional ballots could lead to challenges and possible delays.
Absentee ballots. Unlike early votes, absentee ballots are not separated from their envelopes. Poll watchers could challenge an absentee ballot's signature. Although not every jurisdiction tallies absentee ballots at the polling places, in the counties that do, more absentee ballots means more potential challenges and more delays.
"It's a step-by-step process" says Foley, "that could slow things down. The counting could go into the night."
Voting machines. Large turnout could tax machines and make them more vulnerable to breaking down. Lawyers will check if a polling place has enough paper ballots for a challenge. They will also want to make sure that there are enough actual machines in the poll stations, a problem feared in battleground states such as Virginia and Pennsylvania.
Voter ID laws. Lawyers will watch to see if poll workers are correctly interpreting a state's voter ID law. If lines are long, such a check could add time and discourage voters.
Drawing the line at lines. States have different interpretations at where the end of the line is. Some states set up a "chute system" and use it to make such a designation. Both parties will look to challenge this issue. According to Thomas Wheeler, a Republican lawyer in Indiana, "Democrats will fight to keep polls open and Republicans will fight to ensure that anyone in line when the poll closes can vote, but that new people aren't added to the line after polls close."
Challenges to the hours of operation of polling places.If lines are long, parties could attempt to go to court and extend the hours of poll places. This could provide crucial delays as the public waits for the outcome of a battleground state. Under the 2002 Help America Vote Act, if hours are extended by court order, voters are required to cast provisional ballots instead of regular ballots. Provisional ballots would be counted later, which would add to processing issues.
"Extending polling hours will be one of the major requests we see on Election Day," says John Bonifaz, legal director for Voter Action. "It's a sad reality when turnout numbers hover so low for recent presidential elections. If you see jurisdictions facing huge turnout, there may not be enough ballots, or people or machines," he says.
"The burden should be on the state. A voter should not be disenfranchised because he only had 15 minutes to vote and it turned out it was at the end of the day," says Bonifaz.
Challenges for extended hours could lead to equal protection arguments. Some might chafe at extending hours for some counties and not for others.
Says Wright, "The very fact that you may have some voters getting through polling places in 15 minutes, while other voters are having to wait for hours creates a potential equal protection problem."
On Election Day both campaigns will make calculated decisions on how hard to challenge and when to go to court. It's a strategy difficult to make until the votes come rolling in.
Foley hopes that there won't be anything on the horizon that would cause doubt in the system. He thinks it's "unlikely," but maintains, "the biggest concern is if tens of thousands show up to vote and the system can't process them, that is what you hope is avoided. That's the biggest threat."