CINCINNATI — Giving a pre-dawn Election Day boost to the GOP, a federal appeals court early Tuesday cleared the way for political parties to send in people to challenge voters’ eligibility at Ohio polling places. The U.S. Supreme Court declined to step in.
Overturning the orders of two federal judges, a three-judge panel of the 6th U.S. Circuit Court of Appeals ruled 2-1 early Tuesday that the presence of Election Day challengers was allowed under state law. It granted emergency stays that will allow Republicans and Democrats one challenger per precinct each.
Plaintiffs’ appeals to the U.S. Supreme Court were unsuccessful. Early Tuesday, Justice John Paul Stevens, who handles appeals from Ohio, refused a request to stay the 6th Circuit decision.
Republicans say they wanted challengers in many polling places because of concerns about fraud. Democrats have accused the GOP of trying to suppress Democratic turnout. Hundreds of thousands of voters have been newly registered in a state President Bush and Sen. John Kerry both say they need to win.
The 6th Circuit judges said that while it’s in the public interest that registered voters cast ballots freely, there is also “strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote.” Smooth and effective administration of the voting laws means that the rules can’t be changed hours before the election, they said.
The dissent by Judge R. Guy Cole said the Ohioans have the right to vote without the “threat of suppression, intimidation or chaos sown by partisan political operatives,” and if voting rights are pitted against the possibility of fraud, the court must err on the side of voters.
Rough start in Cleveland
As voting got under way after 6:30 a.m., Democratic challenger Vicki Lynn Ward sat at the Addison Branch Library in Cleveland while early arriving voters punched their ballots. She said she was mainly waiting for a Republican challenger to show up.
“I’m just here to ensure that everyone’s right to vote is protected from unnecessary challenges,” said Ward. She got the call at 2 a.m. that she would be allowed in the polling place.
Democratic challenger John Douglas said a presiding judge kicked him out of a church basement polling place in Cleveland. “She was screaming about police,” he said.
But about 20 minutes later, Jacqueline Atkinson, another presiding judge at the precinct, told Douglas he could come back in.
“She can scream all she wants to,” Atkinson told him. “Just stand by me. You have a right to be here.”
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Mark Weaver, legal counsel for the Ohio Republican Party, said Republican challengers had been told Monday to show up outside the polls pending the appeals court ruling. “We think the 6th Circuit made the right decision,” he said.
David Sullivan, a spokesman for the Ohio Democratic Party, said Democratic challengers would be at the polls to protect voters’ rights. He called the ruling “unfortunate” but added, “we were prepared for this outcome.”
U.S. justice's opinion
Stevens acted on his own in what is known as a chambers opinion that did not involve the other Supreme Court justices. Technically, the plaintiffs could ask that all justices be consulted, but — given the time constraints — the full court rarely disagrees with one of its individual justices in such matters.
“The allegations of abuse made by the plaintiffs are undeniably serious — the threat of voter intimidation is not new to our electoral system,” Stevens wrote. But he said the information presented him made it impossible to determine the validity of the claims.
Two federal judges ruling on separate cases Monday had barred political party representatives from challenging voters at polling places throughout Ohio, saying poll officials should handle disputes over voter eligibility.
Under state law, voters may be challenged on their citizenship, age or residency. Poll workers generally would challenge someone if his or her signature didn’t match the one in the poll book, or if the poll worker recognized the individual as someone who didn’t belong in that precinct.
Republicans have said they plan to check names of voters against lists of absentee ballots and of people who have died recently.
In her ruling Monday, U.S. District Judge Susan Dlott in Cincinnati said plaintiffs in a lawsuit likely would be able to prove that Ohio’s law allowing polling place challengers was unconstitutional.
Dlott said the presence of challengers inexperienced in the electoral process questioning voters about their eligibility would impede voting. She ruled in a lawsuit by a black couple who said GOP plans to deploy challengers to largely black precincts was meant to intimidate and block black voters.
In the second case, U.S. District Judge John Adams of Akron said poll workers, not outside challengers, are the ones to determine if voters are eligible. Adams ruled in a suit by the Summit County Democratic Party, which claimed the registration challenges do not give a disqualified voter a chance to appeal in time to cast a ballot.
In ruling on both cases, the appeals court said the Ohio law authorizing the presence of challengers at the polling places is presumed to be constitutional and “has been on the books for a decade.”
Based on the lower court rulings, Secretary of State Kenneth Blackwell’s office had told county elections boards to bar all challengers from polling places. After the appeals court overturned them, office spokesman Carlo LoParo said officials were “trying to figure out a way to get that information to Ohio’s poll workers.”
The GOP registered about 3,500 challengers, and Democrats say they’ve registered thousands but won’t give a specific number.
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