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Voting challenges in battleground states could create drama, headaches

By Bill Mears, CNN Supreme Court Producer
November 6, 2012 -- Updated 2256 GMT (0656 HKT)
STORY HIGHLIGHTS
  • Provisional balloting, absentee balloting, and voting technology watched closely
  • Impact of Hurricane Sandy on polling places, electronic balloting also a concern
  • Discrepancies like address or name changes could complicate process in close election

(CNN) -- Theodore Olson says he is not going anywhere after Election Day.

"I've been clearing my calendar just in case I need to be ready for the next five weeks," the Washington "super lawyer" and Romney adviser joked with CNN recently. "I don't know, no one knows, you read these polls and it could come out any of a zillion different ways."

Olson was the appellate attorney who successfully argued before the Supreme Court in the 2000 Florida ballot recount case, which handed the presidency to George W. Bush.

That five-week national drama remains fresh in the minds of political and legal experts, anticipating a possible repeat-- an election crisis in one or more battleground states on pre- and post-election issues.

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"Between provisional balloting, absentee balloting, and voting technology, I think there are untold different ways that this is a tense, contested election," said Rebecca Green, co-director of the Election Law Program at William & Mary Law School. "It's pretty certain there's going to be some litigation when this is over on November 6th."

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The voting wars are already being contested on broad canvas -- legislative initiatives, grassroots anti-suppression monitoring, social media campaigns, and months long court litigation.

Here are some potential voting issues and scenarios, based on reporting and research across CNN's various political platforms:

Voter identification and provisional ballots

The greatest source of contention and concern involves laws requiring some form of government-issued picture identification to register to vote and to cast ballots.

Eleven states have new laws in place, designed say supporters to stop fraud, purge voter rolls of outdated information, and restore confidence in the electoral process.

But critics-- led by a coalition of civil rights and other organizations say voter identification is an effort by some politicians -- through the legislature -- to disenfranchise certain voting groups, especially minorities.

How pervasive is any voter fraud? A recent investigation by CNN Justice Correspondent Joe Johns found 55 cases of voter fraud referred for prosecution by the Florida Secretary of State out of 11.6 million registered voters over five years, the latest period for which data is available.

"It's true that there is some voter fraud in this country," Richard Hasen a political science and law professor at the University of California-Irvine told CNN. "But there is no credible evidence that there is any systematic in-person voter fraud. It's not a serious problem."

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According to the Brennan Center for Justice, a legal liberal think tank at the New York University School of Law that has criticized the increase in what it sees as prohibitive voting laws, there have been 25 laws and two executive actions passed in 19 states since the beginning of 2011 which "could make it harder to vote."

But federal courts in recent weeks have, for the most part, limited the reach of these laws: blocking Texas' tough requirements; delaying implementation of Pennsylvania's laws until after November; and eliminating some voter registration requirements in Florida.

Ohio, which analysts say could be the key battleground state, has had many of its Republican-led legislative efforts thwarted. Federal and state courts have expanded early voting to everyone in the crucial last days before Tuesday.

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And courts have ordered the state to preserve the provisional votes of those who may have cast in error because of poll worker misinformation -- such as sending someone to the wrong polling place and precinct to cast the ballot.

The state has among the highest provisional ballot rates in the United States - an estimated 200,000 or more were cast in Ohio four years ago. About 40,000 were later declared ineligible. That could delay a final count in the presidential race for days.

Early voting and poll closings

Hurricane Sandy has forced last-minute scrambling among voting officials across the East Coast, where early voting had begun in earnest in several key states.

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One concern may be whether flooding will cause logistical headaches: a shortage of working voting equipment, or even the disappearance or destruction of thousands of absentee ballots being stored. Some voters may have lost the necessary ID to vote, or have trouble making it to the polls, especially in rural isolated areas.

The Pennsylvania Office of the Secretary of State has advised polling stations to keep paper ballots available at the polls for 20- to 25-percent of expected voters in order to alternate with electronic voting machines.

CNN's Voter Information Tool

In Virginia, early in-person absentee voting has been delayed.

"Of course on Monday we had no voting at all. And Tuesday we didn't get started until 10 in the morning," said Tom Parkins, Voter Registrar in Alexandria. "So we lagged behind the 2008 turnout at this point. But, we're reasonably sure that's going to be made up late this week and this weekend."

Penn State students wait in line to vote in the student union building on the State College, Pennsylvania, campus on Tuesday. Penn State students wait in line to vote in the student union building on the State College, Pennsylvania, campus on Tuesday.
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Misinformation campaigns

Misinformation of another kind: deliberate efforts to mislead, confuse, or pressure voters. American elections big and small have had such problems before -- but there is no sign it is any more pervasive this election year, based on CNN's interviews with state election officials.

The rise of social media has, in fact, created a misinformation campaign of its own, difficult to sort out fact from rumor, where even a whiff of wrongdoing can feed a wildfire of misplaced outrage and mistrust.

In Florida, another battleground, U.S. Postal Inspectors told CNN they have opened a preliminary investigation into a slew of bogus letters questioning the citizenship and registration of certain voters just two weeks before the election.

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Other Floridians -- many Republicans -- have said they had received calls from people claiming to represent the state, urging them to vote by phone-- something that is not allowed anywhere.

Some Virginians have received similar complaints.

The liberal ThinkProgress.org group has alleged Mitt Romney's campaign has been training poll watchers in Wisconsin with what it calls "highly misleading-- and sometimes downright false-- information" about voter rights. The campaign denies any such training.

And Wisconsin and Ohio have seen a deluge of billboards popping up with the message "Voter fraud is a felony." That is true, but some see them as clear intimidation, and prompted protests.

"It's the way they are being displayed and the fact that they are in almost exclusively areas or around areas that are predominantly African-American or Latino," said Wisconsin voting rights activist Eric Marshall. "It sends a message to those communities that there's a problem with your voting."

Court challenges

The Secretaries of State typically control elections, and staff members in key battlegrounds contacted by CNN say they are ready to handle any complaints or concerns.

Legal sources with the Obama and Romney campaigns told CNN they were closely watching potential problems, but would not offer specifics on the ground forces the campaigns have deployed, or any specific areas of concern.

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Many official complaints-- whether by individual citizens, private advocacy groups, the campaigns, or political parties-- could initially wind up in local courts. State or county judges may be asked to extend poll hours, or allow provisional ballots to be counted. The immediacy and urgency of the request will determine the scope and practicality of any bench ruling.

There has been a public expectation that courts would be the ultimate arbiters of any voting disputes, especially those in a post-election environment. Federal courts in Ohio in recent weeks have ruled against state efforts to limit access to early voting, and by doing so used unusual legal reasoning.

"These two rulings in Ohio could give Obama the edge," Hasen said on his blog. "What the Republican [state] legislatures have taken away, the federal courts, including some Republican judges, have restored, relying in part on the arguments conservative justices endorsed in Bush v. Gore.

The 2000 blockbuster relied on "equal protection" guarantees to dismiss Florida's ballot-counting procedures. It was a rare federal and judicial intervention into broad election administration, a duty the Constitution essentially bestows on the states.

Transparency and voter rolls

A little watched federal court ruling from June could have enormous impact on election related litigation. The 4th Circuit appeals court said the public can now view voter rolls, something only political parties could have previously accessed. That information may include voter history.

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That has prompted groups like True the Vote to launch pre-election challenges to voter rolls in several key states.

The tea party affiliated organization said it is "educating voters, examining the registry, recruiting, training and mobilizing election workers and poll watchers, training how to collect data all along the way, then use the data to shape government action and legislative agendas to support desperately needed election code reform. We are helping stop corruption where it can start-- at the polls."

Some elected leaders worry that greater access could lead to voter suppression. U.S. Rep. Elijah Cummings, a Maryland Democrat, wrote to True the Vote, asking for transparency in how the group conducts its business.

Several states -- including Maine and Arizona-- are considering legislation to eliminate or scale back the idea of secret ballots -- a concept that has been in place for decades.

Electoral college questions

Some voters may not realize they do not directly choose a president and vice president. Instead, they are voting to select representatives to the Electoral College, the body that actually determines who will lead the Executive Branch.

The Electors will meet December 17 in their state and vote for president and vice president on separate ballots. In the case of a tie between Romney and Obama, the House of Representatives would meet in January to decide the president, with each state getting one vote. The Senate decides the vice president.

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The presidential election of 1800 was decided by the House; the confusing 1876 election was ultimately decided by a congressional panel which named the key Electoral College electors; and of course 2000 went to the Supreme Court.

"If the ultimate count in the Electoral College could go either way depending on a particular state," said Olson. "And if the vote in that state is very close, either side might conceivably want a recount and that sort of thing, and we'd be in it all over again. Hopefully not."

If Ohio turns out to be the key state, the nation may have to wait. Provisional ballots can only be counted after Election Day and local election boards are given up to 10 days to determine eligibility. Discrepancies such as recent address or name changes could complicate a process, where every vote is considered in play.

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