Can the System Handle Huge Voter Turnout?

Long lines, close race will trigger legal challenges on Election Day.

October 30, 2008, 11:50 AM

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:

"It's a step-by-step process" says Foley, "that could slow things down. The counting could go into the night."

"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."

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