U.S. ELECTION: Bush Challenges Voting Law

By Marty Logan Reprint | | Print |

Marty Logan

MONTREAL, Nov 2 2004 (IPS) - We all know what U.S. citizens will do if they feel cheated in Tuesday’s presidential election: go to court.

We all know what U.S. citizens will do if they feel cheated in Tuesday’s election: go to court.

Not if the Bush administration has its way.

Lawyers in the office of Attorney General John Ashcroft have been arguing in various court cases in recent weeks that private citizens have no right to sue to enforce sections of the Help American Vote Act (HAVA), which was passed after the controversial 2000 election fiasco.

According to experts, not all possible challenges would be launched using HAVA, but sections of the new law, particularly the right to provisional ballots – so citizens whose voting eligibility has been challenged can cast a ballot first and then have the dispute resolved – have already been argued in court.

The legislation is "ambiguous" about the so-called "private right of action," says Nathaniel Persily, professor of law at the University of Pennsylvania in east coast Philadelphia.

The Los Angeles Times reported last week that lawyers for Ashcroft argued in three court cases in late October that only the Justice Department can sue to enforce the provisions in HAVA..

The argument was made in legal briefs filed in connection with cases in Ohio, Michigan and Florida, three "battleground" states where the race between Republican President George W. Bush and Democrat Senator John Kerry was too close to call before polls opened Tuesday.

In 2000, disputed results in Florida about voting machines, intimidation at polling stations and disenfranchisement of thousands of voters, particularly African Americans, led to numerous court challenges until the U.S. Supreme Court declared Bush the victor over Democrat Al Gore.

It was one of the few times in the country’s history that a candidate was declared president after losing the contest for the popular vote. (Bush received 47.9 percent of that vote, while Gore got 48.4 percent.)

Congress enacted HAVA so states – which control most of the election process – could update their much maligned election databases and voting machines; to institute the system of provisional ballots and to establish a photo identification provision at polling stations, explained Persily.

Ohio State has already seen weeks of court action, as Democrats contested a Republican Party plan to challenge the voting eligibility of tens of thousands of voters, arguing the tactic would intimidate minorities and new voters so they would not cast ballots.

Early Tuesday, a Federal Appeals Court judge ruled the challenges could proceed.

According to Tuesday’s New York Times, Daniel J. Hoffheimer, lead lawyer for the Kerry campaign in Ohio predicted that if the results in the state are close, three issues could produce post-election lawsuits: provisional ballots, challenges to voters and absentee ballots.

One expert says it would be "extraordinary" if private citizens could not sue to enforce voting rights under HAVA.

"If one is serious about enforcing civil rights and voting rights you would have a private right of action, and it’s just deeply irresponsible to argue that the people who are the most affected by these laws don’t have the right to come into court and see them enforced," says Laughlin McDonald, director of the Voting Rights Project at the American Civil Liberties Union (ACLU).

He added that the 1965 Voting Rights Act did not expressly state such a right exists, "but the Supreme Court held that a private cause of action was implied" in section two of the law that prohibits discrimination that weakens minority voting strength.

Persily predicted that the current dispute will also end up in the Supreme Court. "HAVA does not supplant state election laws when it comes to, for example, where you have to vote, but in the event you’re denied a provisional ballot you have the right to sue in order to get one."

Both men pointed out that private challenges of the elections could also be launched using others laws, such as section two of the Voting Rights Act and even the U.S. Constitution.

Section two of the Act is the vehicle that most private lawsuits have used to successfully challenge elections, according to McDonald.

"I bet you 95 percent of all the litigation to enforce section 2 has been brought by private parties." Thus, "it seems to me that one has only to realise that there are just overwhelming public policy reasons for having a private cause of action (in HAVA)," he added.

"For the attorney general to (now) argue that private people have no right to enforce a law that was passed for their protection, I find to be quite extraordinary."