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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Sixth Circuit Opinions in Polling Place Challenges Cases: A Preliminary Analysis

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November 2, 2004

In a 2-1 decision, applying to both the Summit County and Spencer cases, the Sixth Court federal court of appeals has stayed the orders issued by both Judge Adams and Judge Dlott. Unless this stay is vacated by the U.S. Supreme Court, the effect of this stay is to permit challenges at polling places by challengers designated by the political parties. In addition, on Monday, the Ohio Supreme Court ruled that political parties are permitted one challenger per precinct, even if there is more than one precinct at the same polling place.

Remaining unclear, however, is the effect of Monday's ruling from the federal court in Newark, NJ, that bars "[t]he Republican National Committee, its officers agents and employees . . . from using for challenging purposes on November 2, 2004 a list originally of 35,000 names prepared for that purpose by the Republican Party in the State of Ohio." According to press reports, the RNC sought a stay of that order from the Third Circuit federal court of appeals, but as of yet we are unaware of any action by the Third Circuit. Whether the Newark-based federal judge's ruling bars the Ohio Republican Party, or local party organizations, from exercising challenges based on the same list is debatable.

In addition, it is our understanding that the plaintiffs in Spencer have asked the U.S. Supreme Court to vacate the Sixth Circuit's stay, and the Supreme Court – or at least Justice Stevens as the Circuit Justice for the Sixth Circuit – is expected to rule on that request in the early hours of Tuesday morning.

In the meantime, it is worth observing that the 3-judge Sixth Circuit panel issued three different opinions, two supporting the stay, and one in dissent. Judge Rogers wrote the lead opinion and rested the stay on the ground that "the plaintiffs do not appear likely to succeed on the necessary primary finding that the presence of challengers burdens the right to vote" (p.6). Judge Rogers acknowledged that "[l]onger lines may of course result from delays and confusion when one side in a political controversy employs a statutorily prescribed polling place more vigorously than in previous elections." Nonetheless, Judge Rogers determined: "[S]uch a possibility does not amount to the severe burden upon the right to vote that requires that the statutory authority for the procedure be declared unconstitutional."

Judge Ryan, in his concurrence, relied "solely" on his view that the plaintiffs lacked standing to pursue their constitutional claim. He asserted that the risk of chaos, confusion, or inordinate delays from the announced plans for challenges this year was "wholly speculative, conjectural, and hypothetical." (p. 1-2). "The plaintiffs have offered no evidence that the injury they allege will occur tomorrow [Nov. 2]." Judge Ryan added: "Should the inordinate delay and related horrors the plaintiffs posit become a reality tomorrow, the federal courts will be open to respond to proof-supported allegations of an unconstitutional burden on Ohio citizens' right to vote."

Judge Guy Cole, Jr., dissented. In addition to embracing the reasoning of both Judge Adams and Judge Dlott, he also credited the Spencer plaintiffs' claim that the anticipated challenges would have a discriminatory effect on the voting rights of African-Americans. He also invoke the U.S. Supreme Court's decision in Burson v. Freeman, 504 U.S. 191 (1992), which sustained limitations on partisan activities at polling places, to highlight the overriding interest in avoiding voter intimidation. Even more than in Burson, Judge Cole argued, "voter intimidation is likely [here] because the partisan operatives at the polls will be challenging the right to vote itself, rather than merely campaigning for a particular candidate or issue." (p.4)