arrowSection 7.1 - Presidential Elections

This topic is monitored by Moritz Law Professor Peter M. Shane

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Top 10 Legal Issues in Presidential Election

In Letterman-like fashion:

10. Potential campaign finance abuses

With Kerry planning to give his unspent money to the Democratic National Committee (DNC) in the expectation that the DNC will spend it on his behalf, the Democrats risk running afoul of the limit on party spending that is coordinated with a candidate.

9. Improper electioneering by tax-exempt organizations

From Jerry Falwell Ministries to the Catholic Church to the NAACP, major charitable groups that are prohibited from supporting or opposing candidates as a condition of their tax-exempt status are engaging in practices that appear over the line.

8. The fight to get Nader on, or keep him off, the ballot

Are the signatures that Republicans collect on his behalf valid if they were collected with funds that are improper contributions to the Nader campaign?

7. Get-out-the-vote abuses

With such an intense effort to get voters to the polls this year, will some partisan groups undertake some improper tactics, including promising favors in exchange for votes? Conversely, will other groups attempt to suppress turnout with intimidation tactics?

6. Fear of terrorism

A terrorist attack could disrupt the election, and even the threat of terrorism could keep people from the polls: will we have enough emergency absentee ballots available in the event that some citizens need to vote on November 2 from the safety of their living rooms?

5. Voting machine problems

This year, believe it or not, most voters in the swing state of Ohio — 73 percent, or about three-quarters — will be using the same punch card machines that produced the Florida fiasco four years ago. Thats because of uncertainties about the reliability of the paperless touchscreen machines that were supposed to replace the chad-producers. Others places, however, will be using as-yet-untested electronic machines. Either way, if the vote is close, there are likely to be questions about the reliability of the count.

4. Voter registration problems and provisional balloting

With questionable purging of voter registration lists and confusion about the new requirement to bring proper ID to the polls, many observers are predicting chaos on Election Day, as doubts are raised about eligibility of many of those standing in the long lines caused by high turnout this year. Theoretically, these doubts can be sidestepped by giving every questionable voter a provisional ballot, as is also newly required, but many also suspect that there will be problems in implementing this new provisional balloting rule.

3. Insufficient poll worker training

Maybe voting would go fairly smoothly on November 2 if poll workers were adequately trained for the new rules and, in many cases, new equipment they will be using. But it is far from clear that this will happen, especially with respect to provisional voting. As a result, there is a significant risk that many citizens who are entitled to vote will be denied the opportunity to do so — precisely the situation the new rules are designed to avoid.

2. Remedial uncertainties

If problems do occur on Election Day, with provisional voting or otherwise, and the allegation arises that some citizens who show up at the polls are being denied their right to vote, it remains unclear what legal recourse they have to contest this alleged denial. Likewise, although a myriad of groups are promising to send observers to the polls to witness what happens, it is unclear whether they are entitled to set foot inside the buildings where the poll workers will be administering the process.

1. Electoral College confusion

If something does go seriously wrong on November 2 — whether because of machine failures, poll worker inadequacies, or terrorist attacks — and there is disarray about how to handle the situation, some state legislatures may be tempted to take matters into their own hands, as the Constitution entitles them to do, and we may again face weeks without knowing not only who our new President will be, but what institution of government — Congress or the U.S. Supreme Court — will assert the authority for settling the result of the election.

From time to time during this campaign, we may revise this list, as matters that initially seem less pressing gain in urgency (and vice versa). Likewise, the artificial but useful convention of “top 10” lists has forced us to combine some items that might have deserved separate treatment by themselves and omit others that would have made a “top 20” cut.