Getting Ugly Early On Election Law

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

We have heard about voter-ID clashes in Indiana and Arizona. We've heard about the potential for electronic voting inaccuracies in Colorado and Pennsylvania. And the folks in Maryland know from their September primary just how badly things can go there at the polling places. All of these bubbling pre-election conflicts have the potential to generate post-election litigation that could sway a race and, given the current Red-State, Blue-State divide, perhaps even the balance of power in Congress.

Responding to the catastrophe that was Palm Beach County's infamous "butterfly ballot," for example, lawmakers have tried to bring new technologies into the voting process — only to find that using electronic voting machines (with inexperienced handlers and shoddy technicians) brings a whole new set of headaches into the mix.

Responding to increased concerns about voter fraud (or at least the potential for it), Republicans have sought to tighten up identity-requirements — only to find that the courts haven't been receptive to their efforts (mostly because the new rules violate equal protection principles).

Any way you look at it, it's clear that not nearly enough of America's voting systems have been fixed since the Grand Debacle that was Florida 2000, despite the fact that the federal government devoted about $3 billion to make it so. That is why this election, even more so than its two predecessors, will be conducted with one eye on the ballots (however they are submitted and counted) and one eye upon the courthouses (wherever they may be found).

Just as the great political prognosticators on cable television glory in calling Senate or House races before they are concluded, so too one day will legal forecasters perhaps predict which states' electoral laws will implode from the force and weight of a close contest. And this year, as they might say, it's a toss up.

The voting-machine disaster, if there is to be one, will emerge and become actionable only after the new machines are used (or abused) on Tuesday. In an online piece last week titled "Fingers Crossed," CBS News Investigative Producer Phil Hirschkorn reminds us that on Tuesday, "4 out of 5 voters across America will use touch-screen machines or optical scanners to cast their ballots. More than one-third of the electorate will vote electronically for the first time, raising questions about whether voters, machines and poll workers are up to the task."

But the identification-requirement cases already have been wafting through the courts. In Texas, a lawsuit challenging new portions of the Texas Election Code which would make it harder for people to vote by mail, made it all the way to Supreme Court Justice Antonin Scalia, who over the weekend politely but firmly declined to continue to prevent state officials from enforcing the restrictions.

And in Ohio, an 11th-hour deal stopped state officials there from imposing more stringent ID-requirements. In both states, as in all the rest, nervous officials are holding their breath hoping the worst doesn't happen that would spawn a series of post-election challenges to the more spurious aspects of the political "ground game" in place for both major parties.

But let's focus on Texas, the President's home state, where election officials probably all have neck sprains from the back-and-forth tussle that has gone on in the federal courts over the past few weeks.

The journey started in September when a group of potential voters (potential Democratic voters, one would surmise) sued Texas to halt enforcement of a new election law that criminalizes the possession of the mail-in-ballot of another voter. On October 13, the plaintiffs asked a federal trial judge for an injunction — an emergency court order — halting what they called intimidating and "chilling" efforts by state officials to enforce the new rules.

Last Monday, the trial judge held a hearing on the matter and on Halloween agreed to block Texas from prosecuting "a person, other than the voter, [who] has merely possessed the official ballot or official carrier envelope and such possession is with the actual consent of the voter."

Seems reasonable, right? Because you don't have to be creative or a litigation strategist (or a Republican or a Democrat) to see a scenario where one person might be needed (say, for medical reasons) to help carry out another person's mail-in vote.

But on Friday, just a few days before the election, the 5th U.S. Circuit Court of Appeals, long a conservative thorn in the side of the Supreme Court, declined to back up the trial judge. The federal appeals court did not explain its rationale; it just unfroze the frozen Texas law, thus allowing election officials to threaten those mail-in ballot carriers with a crime. And then, Justice Scalia — who didn't hesitate to interject the Supreme Court into the 2000 post-election legal fight — refused to do so in the pre-election Lone Star battle.

Got that? That's just a brief description of one fight in one state over one fairly discreet issue. Multiply that by about a hundred and you begin to get a sense of the universe out there for potential litigation as we head toward Campaign 3 P.C. (Post-Chad).

If the 2000 presidential election reminded us that voting is an imperfect science, this coming mid-term could confirm for us that elections in the 21st Century are just as eternally litigious as everything else in this great country of ours.
Andrew Cohen