Justice Ends Effort to Stop G.O.P. Challenges in Ohio
By JAMES DAO
and TERENCE NEILAN
COLUMBUS, Ohio, Nov. 2 - If Ohio Democrats went to the polls today believing that they would have to push their way through a wave of challenges from Republican monitors questioning their right to vote, their fears were not realized.
Republicans had been planning to make major use of the challengers in what they called an effort to combat voter fraud; Democrats accused the G.O.P. of planning to use the challengers to try to intimidate voters.
On Monday, in a blow to the Republicans, two federal district judges in Ohio ruled that challenges could not be made, but those decisions were overturned early this morning by an appeals court and later affirmed by the United States Supreme Court, leaving Democrats expecting the worst.
But Mark R. Weaver, the legal counsel for the Ohio Republican Party, said today that party officials had instructed the challengers to lie low at the polls and act more as observers than contestants.
"Given the Democrats' clear strategy of trying to turn each challenge into a ruckus," Mr. Weaver said, "we wanted to make to sure to preserve the right to keep our observers in the polling places."
He added, "If there's litigation later, these will be contemporaneous notes about what happened at these polling places."
In a similar vein, the governor of Ohio, Bob Taft, a Republican, said his party would not actively challenge voters at the polls today but would rather serve mainly as witnesses.
"My understanding is that the challengers, at least the Republican challengers, will only be witnessing," he said in a CNN interview. "They will not be directly asking the election officials to challenge voters, but they will be witnessing the process and then reporting any concerns thereafter to election officials."
In Cincinnati, a challenger for the Hamilton County Democratic Party, Brett Goodson, showed up at a high school polling site and found he was the only challenger there.
"My understanding is that the Republicans would put a challenger in every minority voting location, so I'm surprised I'm not seeing them," said Mr. Goodson, a Cincinnati lawyer who is among 250 local attorneys hired by the Democrats to monitor the election.
"We were told that Republicans would try to disenfranchise voters," he added. "My role here is to help voters exercise their right to vote."
An official of the Election Protection Coalition, Debra Hirschberg, said as she stood outside a polling station at the Fairhill Center for the Aging, on the city line between Cleveland and Cleveland Heights: "The polls are short-staffed, and they're overwhelmed. There are challengers, but no Republicans. They're Democrats, and they say they're facilitating, not challenging."
Most polling places on the east side of Cleveland had long lines early. Voters reported waits ranging from a minute to 40 minutes, but people were sticking it out. "They're not leaving, they're standing there," said a voter who emerged after waiting through a line of about 30 people at one of the Cleveland polling places.
As part of the legal see-sawing, Justice John Paul Stevens of the United States Supreme Court refused today to set aside an early-morning Ohio appeals court ruling that allowed Republicans to send challengers to polling places, effectively ending efforts by Democrats to block what they had cast as an effort to intimidate minority voters in this battleground state.
Justice Stevens acted on an emergency request shortly before polls opened in Ohio and elsewhere across the nation.
He said practical considerations, like the difficulty of reviewing all the relevant filings in two lower federal courts that had blocked Republicans from placing thousands of people inside polling places, and the limited amount of time available, weighed against granting the requested relief and reinstating the two orders.
"The hour is late and time is short," Justice Stevens said in declining to refer the matter to the full Supreme Court.
Earlier in the day, the appeals court reversed the ruling of two federal district-level judges in Ohio who had ordered the challengers to stay out of the polling places or to remain only as witnesses.
That ruling, by the United States Court of Appeals for the Sixth Circuit, in Cincinnati, came as squadrons of lawyers from both parties in Ohio and other swing states, like Pennsylvania and Florida and New Mexico, were preparing for Election Day skirmishes.
The lawyer for a pair of Cincinnati civil rights activists who had contested the Republican plans to challenge voters appealed the appellate decision to the Supreme Court, which went to Justice Stevens, who is responsible for emergency requests from the Sixth Circuit, which includes Ohio.
A lawyer for the Democratic National Committee, David Sullivan, said after the appeals court ruling: "It is unfortunate that a Court of Appeals has permitted the Republican Party to continue its plan to challenge voters on Election Day. But we were prepared for this outcome and will have voting rights volunteers at the polls to defend the rights of voters."
The spokesman for the Ohio Democratic Party, Myron Marlin, said this morning that Democrats had received sporadic reports of voter challenges but that none had been successful thus far.
"It seems to us as though they have ratcheted down they're plan to challenge," Mr. Marlin said of the Ohio Republicans. "It appears to us as though some challengers did not show up. Many are just sitting and observing."
He added, "They're there, but they're not acting."
With the Ohio polls open this morning, the Republicans had the ability to put 3,500 challengers inside polling places around the state. Democrats also had more than 2,000 monitors on hand to go to the polls.
Judge John M. Rogers, writing for the appeals court majority in overturning the district court decisions, said: "On balance, the public interest weighs against the granting of the preliminary injunction. There is a strong public interest in allowing every registered voter to vote freely.
"There is also a strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote. Finally, there is a strong public interest in smooth and effective administration of the voting laws that militates against changing the rules in the hours immediately preceding the election."
He was joined by Judge James L Ryan, who wrote in a concurring opinion that the plaintiffs had offered insufficient proof of their claims. "The district courts have found a possible chamber of horrors in voting places throughout the state of Ohio based on no evidence whatsoever, save unsubstantiated predictions and speculation," he said.
In dissent, Judge R. Guy Cole Jr. said the majority had struck the wrong balance.
"When the fundamental right to vote without intimidation or undue burden is pitted against the rights of those seeking to prevent voter fraud," Judge Cole wrote, "we must err on the side of those exercising the franchise."
Judge Rogers was appointed by President Bush. Judge Ryan was appointed by President Ronald Reagan. Judge Cole was appointed by President Bill Clinton.
The cases may foreshadow lawsuits that are likely to be filed if the election is close in any state crucial to the Electoral College calculus. Lawyers for both sides are already examining disparities in election policies, nuances in court rulings and potential irregularities at polling places for material that may be used to challenge results in places where margins are paper thin.
The battle over Election Day challenges has been most intense in Ohio, not only because the race here is so close and so vital to President Bush and Senator John Kerry, but also because the Republican Party has announced larger and more aggressive plans to challenge voters here than in other states.
The Republicans contended that challenging - a practice that has been allowed under state law for decades but rarely used - would weed out fraud often missed by election workers. Democrats asserted that the challenges would disproportionately single out low-income and minority voters, which Republicans deny.
In their separate rulings in the lower courts, Judge Susan J. Dlott of Federal District Court in Cincinnati and Judge John R. Adams in Akron agreed that procedures already existed to prevent fraud at the voting place. And they said aggressive, time-consuming challenges inside polling stations might create chaos and delays that could intimidate voters or rob them of the chance to vote.
In seeking the delicate balance between preventing fraud and upholding voting rights, the judges said, the scales should tip toward voting rights.
"Voter intimidation severely burdens the right to vote, and prevention of such intimidation is a compelling state interest," wrote Judge Dlott, who was appointed by President Clinton. Judge Adams was appointed by President Bush. Mark Weaver, counsel to the state's Republican Party, said: "The goal of the Ohio Republican Party is to guarantee a fair election for everyone. Each time the Democrats remove an additional safeguard, the potential for voter fraud increases."
Mr. Weaver argued that even if voters had been successfully challenged at the polls, they would have been allowed to cast provisional ballots, which are reviewed after Election Day to ensure that the voter is eligible. Democrats and many experts in election law say the rules for counting provisional ballots are varied and unclear, which could lead to valid ballots being rejected.
The Ohio Republicans have repeatedly argued that the Democratic Party and allied groups have engaged in widespread fraud. On Monday, they filed a motion in state court asserting that the Democrats and an independent group, America Coming Together, which supports Senator Kerry, have been contacting Republicans and giving them incorrect information about polling locations and other Election Day issues.
Democrats and the group denied the assertion.
In another aspect of the case, a federal judge in New Jersey, Dickinson R. Debevoise, ruled on Monday that the Republican National Committee and people under its control could not use a list of 35,000 people prepared by Republican officials to challenge voters in Ohio. The list, later pared to 23,000, is based on mail returned as undeliverable.
Judge Debevoise, ruling on a challenge filed by Ebony Malone, who said she feared interference when she went to vote in Ohio today, based his order on a 1982 decision that prohibited the Republican National Committee from using ballot security measures like mail checks to frustrate efforts by members of minorities to vote. Judge Debevoise ruled that the 1982 decision, a consent order entered as part of a settlement in New Jersey, was national in scope and continued to be in effect.
A divided three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, affirmed Judge Debevoise's order late Monday.
Judge Dolores K. Sloviter, writing for herself and Judge Richard L. Nygaard, affirmed Judge Debevoise's order, saying there was "ample support" for his finding that Ohio Republicans were prepared to engage in "mass challenging" in "precincts where minority voters predominate, interfering with and discouraging voters from voting in those districts."
Judge Sloviter noted that the appeals court decision was drafted hastily, "with less than eight hours before the opening of polls in Ohio," and that it "falls short of the quality of opinions for which this court is noted."
Judge Sloviter was appointed by President Jimmy Carter, and Judge Nygaard was appointed by President Reagan.
Judge D. Michael Fisher dissented, saying Ms. Malone lacked standing because she had admitted under oath that she would indeed be able to vote today. Judge Fisher was appointed by President Bush.
Even as the Ohio dispute was working its way through the courts, lawyers in other states were gearing up for Election Day challenges.
In Philadelphia, Republicans have said they plan to challenge 10,000 voters in the heavily black West Philadelphia section because of what they say are concerns of registration fraud. Democratic Party lawyers are expected to ask judges to remove the challengers if they are overly aggressive.
In Florida, Republicans have said they will challenge 1,700 people with felony convictions if they show up to vote. Democrats have mustered thousands of poll watchers whose job will be to ensure that voters are not intimidated.
In New Mexico, officials in both parties said they were placing hundreds of lawyers in polling places as monitors. Democrats have said they will not challenge voters, but Republicans have held out the possibility of doing so.
And in Wisconsin, a dispute over Election Day challenges was resolved amicably over the weekend when the two parties agreed to prepare a list of 5,512 people with questionable registrations, like those with discrepancies in their addresses. If those people attempt to vote, they will be asked to produce documentation showing their address. If they have no such proof, they will be allowed to vote, but their ballot will be tagged as challenged, meaning they might be rejected during a recount, officials said.
As the parties geared up for Election Day and beyond, it was clear both had marshaled impressive forces, though the Democrats claimed to have the edge in troop strength.
Robert F. Bauer, the Democratic National Committee's national counsel for voter protection, said the party had assembled the biggest collection of volunteer lawyers ever.
"It is the largest law firm in the United States," Mr. Bauer said of his team. "If we paid everyone at the prevailing market rate, it would rank among the more robust economies in the world."
Mindy Tucker Fletcher, a senior adviser to the Republican Party in Florida, said she was unimpressed. "Why is that something to be proud of?" she asked, adding that "we have lawyers in every county, and at the state level."
Ohio Republicans have also made extensive preparations, recruiting 360 lawyers. "Litigators in every county are standing by to litigate," Mr. Weaver said.
Daniel J. Hoffheimer, the state legal counsel for the Kerry campaign in Ohio, said he had recruited lead lawyers in virtually every one of the state's 88 counties. He said three issues could ripen into post-election lawsuits if the vote was close in Ohio: provisional ballots, challenges to voters and absentee ballots.
Both sides agreed that no one knew where significant trouble would break out or what specific legal issues would be involved. But all concerned said they had tried to learn from the litigation chaos in Florida in 2000.
"Last time everybody was entirely unprepared," said Barry Richard, who represented the Bush campaign in Florida in 2000. "We had to organize very quickly. Nobody expected it to begin with and nobody expected the magnitude of it or the length of it. We suddenly found ourselves facing three trials, any one of which could have made the difference in the election."
Ford Fessenden contributed reporting from Cleveland for this article. Albert Salvato contributed reporting from Cincinnati. Terence Neilan, Adam Liptak and Mark Glassman contributed reporting from New York.
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