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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.

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Litigation Status Report

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October 31, 2008

Overview-- Despite the flurry of election litigation activity that has been occurring in the last two to three weeks, today (Friday, October 31) things are actually pretty quiet on the litigation front. This has happened for two reasons. First, activists and political parties have dropped, settled, or put off until a later time important suits in states like Colorado (voter purges), Michigan (polling place challenges), Ohio (suits over ID and challenges to absentee ballots), and Virginia (general election day preparedness). Second, courts have moved with great speed to decide the remaining disputes that have not gone away on their own: Pennsylvania (a suit against ACORN and one demanding additional paper emergency ballots), Ohio (a suit about both HAVA matching and a disputed 5-day window in which voters could both register and vote in one trip), Wisconsin (a suit about matching, although an appeal is expected), and Georgia (matching). The few suits that are still outstanding, or have been resolved extremely recently, are digested below.

Florida challenge suit-- Yesterday, Florida Democrats sued for an injunction preventing Republicans from executing alleged plans to initiate mass challenges against voters at the polls. The Democrats claim that Republicans are going to target voters whose homes have been foreclosed upon and voters from whose addresses campaign mailings have been returned undeliverable. Because the complaint was just filed, there is not much information about this suit. Republicans contend that the mailings were sent to Democrats by accident and were not intended to develop a list of challenged voters. A similar suit in Michigan was voluntarily dismissed after the parties agreed that Michigan Republicans had no present intent to initiate mass challenges based on lists of foreclosed homes.

In the past, party operatives in Florida and elsewhere have attempted to initiate mass pre-election day challenges against voters whose mail was returned undeliverable, but those challenges have almost uniformly been questioned and rejected by the courts and/or administrators (see WA, NV, OH, WI). Although parties in past elections in other states (MI, PA, WI) have set up the personnel to initiate mass election day challenges on a statewide level, they have never actually executed those mass challenges, only targeted challenges in particular polling places on college campuses and elsewhere.

Indiana absentee voting suit-- On Wednesday, Indiana Republicans sued the Marion County (where Indianapolis is located) election board claiming that the board has ordered poll workers to count absentee ballots and commingle them with other ballots before parties have the opportunity to challenge the eligibility of those ballots for counting (see complaint). Again, because this suit is brand new, there is not much information about it, although a hearing is scheduled for today. However, the fact that Republicans are suing to secure the ability to challenge these absentee ballots suggests that they may seek to make use of that ability. To challenge these ballots, the Republicans may have developed lists of voters from whose addresses mailings have been returned undeliverable, lists of first-time mail-in registrants who could not be verified by the state's database matching program and failed to present proper ID (also a problem in CO), or simply lists of individuals who could not be verified by the state's database matching program (see OH, WI). Republicans brought a similar suit in Ohio but later voluntarily dismissed it.

Indiana early voting suit (largely resolved)-- This suit has appeared to be on its last legs for some time. Republicans in northwestern Indiana sued after the local election board set up satellite early voting locations in three municipalities. The Republicans claimed that Indiana law required a unanimous vote of the board, as opposed to the majority vote that the measure got, in order to set up such locations. Regardless of the merits of that argument, most courts would be reluctant at this point to grant the Republicans' request to throw out the ballots cast in these locations, because of the disenfranchising effect this would probably have. Perhaps because of this, the suit bounced around to various courts until yesterday, when the plaintiffs rescinded their request for discounting the ballots. However, that does not exclude the possibility that the ballots could be challenged on a case-by-case basis.

Illinois registration fraud suit-- Illinois Republicans on October 28th filed suit in Lake County (west of Chicago), where they claim approximately 5,000 voter registration forms submitted by a third-party voter registration group could be fraudulent. The suit seeks to require voters who were registered by this group to cast provisional ballots at the polls, and that the suspect registration forms be examined before any of the provisionals are counted. No hearing had yet been scheduled as of last Wednesday. Moritz is obtaining documents.

New Mexico voter privacy suit-- The ACLU brought this suit on October 27th on the allegation that state Republican operatives had sent private investigators to the homes of certain voters and scared them by asking questions concerning their eligibility to vote. The defendants claim that their conduct was entirely legal. While this case is not unimportant, there is no reason that it must be decided prior to the election, so we should not expect a decision anytime soon.

New Mexico voter intent suit (resolved)-- The League of Woman Voters of New Mexico brought this suit against New Mexico's Secretary of State on October 23 defending New Mexico's definition of what constitutes a valid mark for purposes of voting-- basically, any mark that causes poll workers to "unanimously agree that the voter's intent is clearly discernable." NMSA 1978, 1-9-4.2. The Secretary of State, on the advice of the state Attorney General, had contested that standard as unconstitutionally vague. However, the New Mexico Supreme Court ended the dispute yesterday by holding that the current standard may stand (see writ).