Polling Irregularities

Voting Problems Could Spark Legal Challenges to Results

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By Eric Rich
Washington Post Staff Writer
Wednesday, September 13, 2006

The irregularities that led Maryland courts to extend voting hours yesterday in Montgomery County and Baltimore under some circumstances could provide a basis for challenging the outcomes of contests decided in part or entirely by voters in those jurisdictions, experts said.

From the top of the ticket to the bottom, campaigns remained focused into the evening on efforts to get voters to the polls. Many declined to say whether they considered legal challenges likely even as the Democratic Party filed court petitions asking judges to keep the polls open in the county and the city.

But election experts said the narrower the margin in any race, the more likely a future challenge. As a general rule, they said, challengers need not prove intentional fraud, only that errors were widespread enough to give a potentially decisive boost to one candidate.

Yesterday's irregularities in Maryland presented "the kind of scenario that could lead to a challenge," said Steven J. Mulroy, a professor at the University of Memphis law school who is an expert on revotes.

Richard L. Hasen, a Loyola Law School professor in Los Angeles who is an expert in election law, said: "Unless there's a close enough race where this problem could have made a difference in the outcome, then litigation is pretty tough to win. The most important thing is how close the election is. Most would not be close, but a few could be, and that's where the action would be."

But the analysis is complicated, Hasen said, because yesterday's errors did not involve ballots that can be recounted. Rather, the mistakes were of the kind that could have prevented voters from casting ballots or going to the polls.

As a result, experts said, there are few remedies available, short of a revote, for any candidate who might challenge an outcome.

The races potentially impacted by the poll station irregularities include contests in Montgomery and Baltimore and statewide races, including the Democratic nomination for U.S. Senate.

The front-runners in the Senate race were U.S. Rep. Benjamin L. Cardin and former U.S. representative and NAACP leader Kweisi Mfume. Mfume's legal counsel, Dan Rupli, worked on enforcement of the Voting Rights Act as a Justice Department lawyer. In that capacity, Rupli said, he often required revotes by demonstrating that the impact of an error was disproportionately harmful to a minority group.

"That's what we used to seek in the way of relief when an election was botched as badly as this one," he said. Still, Rupli said, he had not discussed the possibility of a challenge. "I know that the damage is probably irreparable," he said. "It's probably the kind of thing that can't be fixed."

As the Democratic Party fought to keep polls open late, the Cardin campaign released a statement from the candidate that said: "I support efforts to extend voting hours so that Marylanders who could not vote this morning have the chance to vote this evening. I believe strongly that every Marylander who wishes to cast a vote should have the opportunity to do so. And every vote that is cast must be counted."

Laslo Boyd, a spokesman for the reelection campaign of Maryland Comptroller William Donald Schaefer (D), said his campaign did not at the moment have plans to file any challenges to the election. He said the candidate most likely to be affected by lower turnout in Montgomery would be Del. Peter Franchot (D), who was challenging Schaefer for the nomination.

Franchot said he was disappointed in the Montgomery election board. "They had two years to plan for one day," he said, "and they messed it up." When asked about a possible challenge, he said yesterday afternoon: "We will assess the damage down the road. I still believe I'm going to win tonight."

Another hopeful whose race may have been affected was state Senate candidate Jamin Raskin of Takoma Park, a law professor at American University who has studied elections. "It was chaos," he said. "It was Florida. It was Mexico. It was your worst nightmare."


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