Election Law @ Moritz

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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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November 3, 2008

Litigation Status Report

November 3, 2008

Overview— Much has stayed the same since our last Litigation Status Report (Friday, October 31), with three exceptions. First, the NAACP has renewed efforts in Virginia to extend voting hours and obtain paper ballots at polling places. Second, McCain has sued in Virginia to count late-arriving military ballots. Third, the Wisconsin Attorney General announced he will not appeal until after the election the suit that he brought against the state’s chief election authority to force it to match the information on incoming voter registration applications. Most remaining cases are still awaiting hearing.

New Virginia military voting suit-- The McCain campaign has sued in Virginia to force the state to count military votes that arrive after election day. The campaign wants these ballots to count so long as they are received by officials no later than November 14. Moritz is obtaining documents.

Florida challenge suit— A hearing occurred in this case at 11:00 a.m., but as of 2:00 p.m. no decision has been announced. Republicans continue to deny that they have any plans for widespread voter challenges. Democrats sued the GOP on the allegation that the party intended on initiating polling place challenges against voters whose homes were in foreclosure and voters to whom the post office was unable to deliver certain campaign mailings.

Indiana absentee voting suit— This case is now in front of both a state intermediate appellate court (on appeal from lower court order to keep challenged absentee ballots segregated) and the state Supreme Court (on a petition from the Indiana GOP). As of 1:30 p.m., no decision had issued from either of these courts. The original trial court, in response to a GOP complaint that Marion County (Indianapolis) officials intended on following a procedure that was contrary to law, on Friday ruled that officials had to keep challenged absentee and early votes segregated from non-challenged ballots so that they could be preserved for later review.

Illinois registration fraud suit— This case went to federal court on Friday and got kicked back to the state trial court where it originated. No further information was found as of 2:30 p.m., indicating that this suit might not be resolved until it is too late. The suit originated when Illinois Republicans alleged that third-party voter registration groups had submitted approximately 5,000 fraudulent registrations and that the individuals represented by those registrations should have to cast provisional ballots.

Virginia “preparation” suit— The NAACP case asking Virginia voting officials to extend polling hours and furnish paper ballots to votes should be in court this afternoon, but as of 3:00 p.m. there has been no word of a decision. The NAACP had agreed at one point to put the legal issues aside until after the election, but over the weekend renewed their complaints and asked for an immediate hearing. The concerns about long lines may be warranted, given that Virginia has no real early or no-excuse absentee voting and in many jurisdictions relies on controversial touchscreen voting machines that are not required by law to have a VVPAT.