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NAACP Election Suit Unsuccessful in Va.

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By Anita Kumar
Washington Post Staff Writer
Tuesday, November 4, 2008

RICHMOND, Nov. 3 -- A federal judge Monday refused to order any last-minute changes to Virginia's voting procedures in response to allegations by the NAACP that the state is not prepared to handle the predicted historic voter turnout in Tuesday's election.

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But U.S. District Judge Richard L. Williams will consider Tuesday a separate request by Republican presidential nominee John McCain to allow overseas absentee ballots an extra 10 days to arrive in Virginia.

State officials said Monday afternoon that they were relieved that Williams did not order extended polling hours, more paper ballots or the moving of equipment among precincts, as the NAACP had requested.

"We need to go back to work," Jean Cunningham, chairman of the State Board of Elections, said as she hurried from the courthouse to the election office in downtown Richmond.

The lawsuit, filed last week, contends that the state is violating the U.S. and state constitutions by not providing enough voting machines, poll workers and polling places, particularly in precincts with large minority populations. The shortages could result in long lines and lost votes, the suit says.

"We are urging all voters to stand in line," NAACP President Ben Jealous said after the ruling. "Americans have waited 230 years for this -- a multi-gender, multi-generational, multiracial [campaign]. This is a big day. Stay in line."

The NAACP and voter protection groups said they will monitor the polls Tuesday and are prepared to go back to court to ask Williams to make changes if they see problems.

Williams listened to arguments from the NAACP's attorney, but he declined to hear expert testimony before denying the group's motion at the end of a 30-minute hearing. He did order the State Board of Elections to publicize that disabled voters and those 65 or older could vote in line immediately through a little-known practice called "curbside voting." He also said anyone who is standing in line at 7 p.m., when the polls are scheduled to close, can vote, regardless of how long the lines are.

"I hope this will reduce confusion," he said.

Election officials anticipate record turnout Tuesday, when the nation will elect either its first black president, Democrat Barack Obama, or its first female vice president, Republican Sarah Palin.

More than 5 million Virginians are registered to vote, including 500,000 people added to the rolls since the 2004 presidential election.

The State Board of Elections contends that all localities meet state requirements for the number of voting machines or voting booths available in each precinct -- one machine for every 750 registered voters for touch-screen electronic systems and one voting booth for every 425 registered voters for optical-scan systems.

Since 2004, the number of voting machines in the state has increased from about 5,990 to about 10,600, and the number of election workers has increased from 19,000 to 30,000. The number of polling places has increased from 2,294 to 2,349, and some existing locations have been upgraded or enlarged.

"Democracy is messy. Therefore we have to be prepared for public scrutiny any time and any place," said Nancy Rodrigues, secretary of the State Board of Elections. "That's certainly in their right to question, but I think we're prepared."

The Advancement Project, a national voter protection group, filed the lawsuit a week ago in Richmond and Norfolk on the NAACP's behalf.

"We believe our prediction is right," said Judith Browne-Dianis, co-director of the Advancement Project. "This case is not dead. It is not over. It will be alive after Election Day."

Browne-Dianis said the group filed a lawsuit in Virginia because it is a new battleground state. Virginia has not put the resources or planning into Election Day that other battleground states have, and it does not offer no-excuse early voting, the suit alleges.

About 538,000 Virginians have requested absentee ballots by mail or in person, and a record 466,000 such ballots -- nearly one for every 10 state voters -- have been processed. About 222,000 were cast in the 2004 presidential election. To obtain an absentee ballot in Virginia, a voter must give a reason for not being able to go to the polls on Election Day.

In some precincts in the state, voters waited in line six hours to cast absentee ballots Saturday, the final day to vote absentee in person. Ballots cast by mail must be in the hands of local election officials by 7 p.m. Tuesday.

The McCain campaign's lawsuit, filed Monday, asks the judge to order the State Board of Elections to count any overseas absentee ballots sent by Nov. 4 and received by Nov. 14.

The campaign contends that federal and state agencies recommend that absentee ballots be sent to overseas military members at least 45 days before the election but that many localities sent out ballots less than 35 days before the election. Localities listed in the lawsuit include Arlington and Loudoun counties. A hearing is scheduled for Tuesday.

"This lawsuit seeks to protect the right of U.S. servicemen and women to cast their vote and have them counted," Gail Gitcho, a spokesman for the McCain campaign, said in a statement. "The McCain-Palin campaign believes without exception that the servicemen and women on the front line protecting our freedoms deserve every opportunity to make sure their vote counts."

Kevin Griffis, a spokesman for the Obama campaign, said in a statement that Obama "is strongly committed to protecting the rights of veterans and active duty military. That is why our campaign sent a letter to every Secretary of State earlier this fall urging them to do everything they can to ensure that the vote of active military and veterans are counted."


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