Election Law Changes Likely to Increase Litigation

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Election Law Changes Likely to Increase Litigation
By Seth Stern, CQ Staff


Lawyers preparing for election-related litigation can thank Congress for providing them some of their best ammunition.

Some provisions of the Help America Vote Act (PL-107-252), the 2002 law written with the aim of improving election administration, left many of the implementation details in the hands of the state officials, who asked for leeway. And it’s that discretion — particularly when it comes to federal requirements for provisional ballots and statewide voter registration databases — that Republican and Democratic lawyers are now looking to exploit.

“The particular holes that Congress left in HAVA have increased the opportunity for election law litigation in new and potentially damaging ways,” says Richard Hasen, an election law professor at Loyola Law School in Los Angeles.

The provision most likely to spark lawsuits in the event of a close election is the requirement that states provide provisional ballots to voters who are not allowed to vote at the polls if local officials cannot verify their registration status.

The law left it up to each individual state to decide how to count provisional ballots. For example, 31 states and the District of Columbia require voters to obtain their ballot in the precinct where they are registered in order for the ballot to be counted, according to a survey on provisional ballot laws released this month by the non-partisan public policy research and advocacy organization Demos. Other states count provisional ballots for national or statewide offices even if the voter obtains the ballot in the wrong precinct.

Additionally, poll workers, who may be confused over the increasingly complicated election laws they are asked to administer, also wind up issuing provisional ballots when it’s not necessary.

The result is wide variation between — and even within states — in how many provisional ballots are issued and wind up getting counted. That could be particularly significant this year when the number of provisional ballots could hit records.

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