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Challenges to Voting Laws May Play Havoc On and After Election Day

Democratic Rep. Mark Critz’s chances of hanging onto his seat representing Southwestern Pennsylvania could hinge on a lawsuit filed by a 93-year-old great grandmother over the state’s new voter identification law.

The Supreme Court of Pennsylvania is hearing Viviette Applewhite’s appeal today so it can decide whether the recently enacted statute is so burdensome on some citizens that it violates Pennsylvania’s constitution.

Like other lawsuits across the country, it pits Republicans concerned about voter fraud against Democrats worried about voter suppression. The outcome could affect turnout on Election Day and spawn legal challenges afterward.

Legal tussles over voter ID laws, purges of voters deemed ineligible, registration tactics and early voting periods in states including Pennsylvania, Ohio, Florida, Wisconsin, Colorado, Texas and South Carolina are setting the stage for a potential post-election legal showdown in November.

At least one Senate race and five House races that Roll Call currently rates as a Tossup are in states with ongoing voting lawsuits.

“If anybody thinks that there won’t be contests that are close enough that who does and who doesn’t have the identification required will have an impact are deluding themselves,” said Lawrence Norden at New York University School of Law’s Brennan Center for Justice.

“It’s rare to have a presidential election come down to 1,000 ballots, but it’s not very rare to have a Congressional contest or state legislative race be decided by an extremely small margin,” he said.

The Brennan Center is involved in several cases challenging what it characterizes as restrictive voting laws.

There are two schools of thought on voter identification measures, which, like most voting issues, tend to break down along party lines. Republicans are concerned about eliminating fraud and preserving integrity by making sure only valid registered voters cast ballots. Democrats worry that overly strict policing could suppress turnout and want to improve access.

“If I had to boil it down to its essentials, it’s access versus integrity, that’s what these cases are about,” said Dan Tokaji, a law professor at the Ohio State University.

Pennsylvania Gov. Tom Corbett (R) signed a voter ID law in March 2012 that was designed to prevent fraud. It requires voters to show a photo ID issued by the federal government, the commonwealth, a municipal employer, an institute of higher education or a care facility.

Pennsylvania estimates at least 80,000 voters would have to get a new form of identification before Election Day.

Applewhite sued, arguing that as an elderly citizen who had never had a driver’s license, the new law would be a burden on her and several other co-plaintiffs who had trouble obtaining their birth certificates and other required documentation. The League of Women Voters of Pennsylvania, the NAACP and the Homeless Advocacy Project signed on to represent the interests of similarly situated individuals.

A court denied the group’s request for a preliminary injunction in August, and the outcome of the case will now be decided by the commonwealth’s highest court. There are currently three Democrats and three Republicans who will hear the voter ID case. If there’s a 3-3 decision, the law would stand.

The American Civil Liberties Union of Pennsylvania, the Public Interest Law Center of Philadelphia, the Advancement Project and the law firm Arnold & Porter are handling the group’s lawsuit.

Wisconsin officials have asked its highest court to consider a similar measure before the November elections. Two other voter identification cases in Texas and South Carolina were filed under the Voting Rights Act.

“There could be Congressional races or state races where confusion [about proper identification] on Election Day could lead to post-election litigation over the result,” University of California Irvine law professor Rick Hasen said.

Ohio Attorney General Mike DeWine and Secretary of State Jon Husted, both Republicans, filed a brief with a federal appeals court Monday, asking it to reconsider a lower court’s recent decision to halt changes to the state’s early voting rules.

Obama for America in July sued to block a measure passed by the Republican-
controlled Ohio Legislature that ended early voting for most voters during the three days before Election Day. Local election boards were given the leeway to decide whether military and overseas voters could continue to cast in-person absentee ballots. The campaign, the Democratic National Committee and the Ohio Democratic Party said the rules change violated the Equal Protection Clause of the Constitution because it treated groups of voters differently.

Experts say Ohio’s early voting case and another in Florida that seems close to being resolved are important because last-minute rules changes can create confusion, including not having the proper ID or having to endure long lines on election day.

“It’s a real worry that people who voted early four years ago won’t be aware of the fact that the state has restricted early voting this time around,” Tokaji said.

In addition to lawsuits brought over voter ID measures and changes to early voting rules, there are challenges to voter purges, technology and provisional ballots winding their way through the courts.

Hasen said if you set aside the larger question of whether these laws and related lawsuits are a good or a bad thing, you’re left with the fallout.

“I’m concerned about implementing new rules for the first time on an election day,” Hasen said. “You don’t write a play and premiere it on Broadway.”

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