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Election 2004

Ballot battles rise in the courts

By Associated Press
Published October 23, 2004

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TODAY: Hip Hop Summit Action Network Bus Tour 2 p.m., Tropicana Stadium Parking Lot, 1 Tropicana Drive. Headliners will include rap artists Akon and Styllion; ESPN sportscaster and former New York Jet Walter Briggs; Tampa Bay Bucs player Ellis Wyms; and Southern Style rappers Evening Riders, Ace Boon Koon, Black Jack Boys, Kream, and LK & Tom G. Shuttles will transport young voters to early voting locations until 5 p.m. Call 866-0873.

TUESDAY: Meg Ryan and Robert F. Kennedy Jr. 6 p.m. , Tampa Theater, 711 Franklin St., Tampa. A discussion on President Bush's environmental policies. Free. Call 595-7314.

WEDNESDAY: Parent Forum on the Pinellas County School Referendum Ballot Question 7 p.m., McMullen-Booth Elementary School, 3025 Union St., Clearwater. Call (813) 884-3782.

WASHINGTON - The Supreme Court, which settled the last presidential election, may be drawn into this one even before Election Day.

A federal appeals court - one step away from the Supreme Court - is expected to rule next week on one of the most contested questions this year, the counting of provisional ballots. It is possible that one side or the other would then appeal to the justices, asking them to draw national rules.

Provisional voting is supposed to be a backup for eligible voters whose names are missing from the rolls when they show up at polls on Nov. 2. It is required for the first time nationally this year.

In key states where the race is tight, provisional ballots could determine the winner, and thus perhaps the presidency.

Provisional ballots are to be counted days or weeks after the election. States have different rules for evaluating them, including whether to count a vote that is cast in the wrong precinct. Voters can mistakenly end up at the wrong polling place if, for example, they didn't realize that precinct lines had changed, or if they were given bad information by an election worker.

Courts have reached differing conclusions about whether the federal law that required provisional voting requires a loose or strict interpretation of this wrong-precinct question. The ruling from the 6th U.S. Circuit Court of Appeals could deepen that division, possibly making it more likely to gain the Supreme Court's interest.

The potential test case comes from battleground Ohio, where Democrats have repeatedly sued the state's top election official, a Republican.

Ohio Secretary of State Kenneth Blackwell lost his argument for the strict interpretation before a federal trial judge this week. He then appealed to the 6th Circuit. The Democrats' reply is due Saturday, and the Cincinnati-based court could hold oral arguments Tuesday. The judges could also rule without holding an argument.

The same regional appeals court covers Michigan, where another federal judge also ruled for the Democrats. That case is also on appeal to the 6th Circuit, and the court may combine the two.

Three appeals judges will consider the case, two appointed by former President Reagan and one by former President Clinton.

If the judges rule that Blackwell's strict interpretation is right, that would reverse the two lower-court rulings that favored the Democrats and probably settle the matter for now, said Edward Foley, director of the election law center at Ohio State University.

If, however, the appeals court upholds those rulings and orders Ohio and Michigan to use the broader standard for counting ballots, Blackwell is almost certain to take the next step and appeal to the Supreme Court.

"In some sense the Supreme Court has to make a judgment whether it's going to let the 6th Circuit speak for the nation," Foley said.

The justices are usually loath to become involved in cases on short notice, and might not take an appeal over provisional balloting now.

The court generally takes only appeals that have a broad national implication, involve a question of federal law or that will resolve an issue that has divided lower courts.

The justices surprised many in 2000 by agreeing to hear two postelection cases from Florida, including the decisive Bush vs. Gore appeal that ended ballot recounts and effectively decided the election for President Bush.

[Last modified October 23, 2004, 01:14:17]

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