A big win over Ashcroft for the Election Protection Attorneys.
"Judge rejects White House on counting of backup ballots
ANNE GEARAN THE ASSOCIATED PRESS
On the Net:
Michigan Democratic Party: mi-democrats.com
Secretary of State: michigan.gov
Justice Department: usdoj.gov
WASHINGTON -- A federal judge rejected arguments from the Bush administration Tuesday and ruled for Democrats in a dispute over how to count provisional ballots, a new voting requirement that could become the hanging chad of 2004.
The Department of Justice, in its first foray into an increasingly partisan fight over election rules, had argued that battleground Michigan should be free to adopt strict rules to count the backup ballots.
The department said Democrats had no right to sue to ease restrictions on voters whose names are missing from registrars' rolls on Election Day.
The ruling from the Democratic-appointed judge in Michigan deepened the split among states and courts over standards for counting provisional ballots two weeks before the election.
"It certainly has the appearance of partisanship," on the part of a Republican Justice Department, said Dan Tokaji, an election law specialist at Ohio State University's law school.
"It looks like they are intervening because they think it will help President Bush carry Michigan."
Hundreds of thousands of provisional ballots may be cast on Nov. 2, enough perhaps to determine whether President Bush or Democratic Sen. John Kerry wins the White House.
Nonpartisan election experts point to provisional ballots as a likely trouble spot, both because the process will be new for many voters and election workers, and because states have adopted differing standards for who can cast the ballots and how they will be counted.
Republican National Committee spokeswoman Christine Iverson said the party has no position on whether strict rules or looser ones should govern provisional ballot counting. The choice should be up to individual states, she said.
That was essentially the stance adopted by the Justice Department in its filing late Monday, but Democrats said the timing of the filing was suspect.
The federal government is not a party to lawsuits in Michigan, Ohio and other battleground states over provisional ballots, and the administration was not invited to give its views.
"I think they have taken a hard and fast position," supporting a restrictive view of provisional ballots, said Democratic National Committee lawyer Bob Bauer. "What is remarkable is that they did it two weeks before Election Day. Up to now they were silent," including during congressional debate on the matter two years ago, Bauer said.
Provisional ballots are required nationally for the first time this year. They are supposed to prevent what happened in the 2000 election, when an estimated 1.5 million registered voters were mistakenly turned away from the polls because of clerical errors or other problems.
Tokaji and other legal analysts said Democrats probably stand to benefit if more provisional ballots are counted. Low-income and minority voters may move more often, and thus fall off some voter rolls. Massive voter registration drives signed up a million or more new voters this year, but some of those registrations may be faulty.
Election officials are supposed to check the provisional ballots after the election, and count those filed by eligible voters.
The Justice Department's friend of the court filing late Monday argued that in passing the 2002 Help America Vote Act, Congress knew states would adopt differing standards. Individual voters cannot sue to change those rules, the department said.
The administration's brief said Michigan was entirely within its rights to set a strict rule that provisional ballots will only count if cast in the voter's correct precinct.
"American elections have long been precinct-based," Justice Department attorneys wrote in court papers. "A well-understood premise of such a system is that a voter must appear at the correct polling place -- the one to which the voter was assigned, and on whose rolls the voter appears -- or else the voter will not be able to vote."
U.S. District Judge David Lawson said the government lawyers filed too late and that their filing "adds nothing to the arguments" already laid out by both sides.
Lawson, nominated by Democratic President Bill Clinton, then ruled that Michigan must count provisional ballots cast by voters who show up at the wrong polling precincts but are in the right city, township or village." |
