Updated: 3:17 a.m. ET Nov. 2, 2004
CINCINNATI - A federal appeals court has cleared the way for challengers to be present at polling places throughout Ohio, ruling early Tuesday that their presence on Election Day was allowed under state law.
A three-judge panel of the 6th U.S. Circuit Court of Appeals ruled 2-1 to grant emergency stays of two federal judges' orders Monday that barred voter challengers from political parties. The judges also consolidated the two appeals, which stemmed from separate lawsuits in Cincinnati and Akron.
Alphonse Gerhardstein, attorney for the plaintiffs in the Cincinnati case, said early Tuesday that he appealed the 6th Circuit decision to the U.S. Supreme Court.
The federal appeals court said that while it's in the public interest that registered voters cast ballots freely, there is also "strong public interest in permitting legitimate statutory processes to operate to preclude voting by those who are not entitled to vote."
11th-hour rulings chastised
The judges also said that smooth and effective administration of the voting laws means that the rules can't be changed in the hours immediately preceding the election.
The dissent by Judge R. Guy Cole said the citizens of Ohio have the right to vote without the "threat of suppression, intimidation or chaos sown by partisan political operatives."
Cole said that partisan challengers are seeking to target precincts that have a majority black population, and that when "the fundamental right to vote without intimidation or undue burden is pitted against the rights of those seeking to prevent voter fraud ..." the court must err on the side of voters.
Republicans say they wanted challengers in many polling places because of concerns about fraud. Democrats have accused the GOP of trying to suppress Democratic turnout. Hundreds of thousands of voters have been newly registered in a state President Bush and Sen. John Kerry both say they need to win.
Two federal judges ruling on separate cases Monday had barred political party representatives from challenging voters at polling places throughout Ohio, saying poll officials should handle disputes over voter eligibility.
U.S. District Judge Susan Dlott in Cincinnati said plaintiffs in a lawsuit likely would be able to prove that Ohio's law allowing polling place challengers was unconstitutional. The GOP appealed her ruling to the 6th Circuit.
Dlott said the presence of challengers inexperienced in the electoral process questioning voters about their eligibility would impede voting. She ruled in a lawsuit by a black couple who said
GOP plans to deploy challengers to largely black precincts in heavily Republican Hamilton County, which includes Cincinnati, was meant to intimidate and block black voters.
In the second case, U.S. District Judge John Adams of Akron said poll workers are the ones to determine if voters are eligible.
Adams ruled in a suit by the Summit County Democratic Party, which claimed the law allowing registration challenges is unconstitutional because it does not give a disqualified voter a chance to appeal in time to cast a ballot.
He wrote that representatives could not be at the polls for the sole purpose of challenging voters' qualifications.
The 6th U.S. Circuit Court of Appeals said the Ohio law authorizing the presence of challengers at the polling places is presumed to be constitutional and "has been on the books for a decade."
Poll workers may be in limbo
Based on the two lower court rulings, Secretary of State Kenneth Blackwell's office had told county elections boards to bar all challengers from polling places.
After the appeals court disagreed in its overnight ruling and allowed the challengers, secretary of state spokesman Carlo LoParo said he assumed poll workers wouldn't learn of the news until voting began at 6:30 a.m. Tuesday.
"Our concern at this point is trying to figure out a way to get that information to Ohio's poll workers," he said.
Also Monday, the Ohio Supreme Court clarified that political parties are allowed one challenger apiece for each precinct.
The GOP registered about 3,500 challengers, and Democrats say they've registered thousands but won't give a specific number.
Under state law, voters may be challenged on their citizenship, age or residency. Poll workers generally would challenge someone if his or her signature didn't match the one in the poll book, or if the poll worker recognized the individual as someone who didn't belong in that precinct.
Republicans have said they plan to check names of voters against lists of absentee ballots and of people who have died recently.