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Abu Dhabi, UAETuesday 20 November 2018

Democrats and Republicans shift election battle into courtrooms

With no standardised national system, local conflicts over voter changes are leading to a rise in legal challenges

A member of the audience wears a shirt that reads "Proud to Be A Trump Deplorable" as President Donald Trump speaks at a rally at Southern Illinois Airport in Murphysboro, Ill. AP
A member of the audience wears a shirt that reads "Proud to Be A Trump Deplorable" as President Donald Trump speaks at a rally at Southern Illinois Airport in Murphysboro, Ill. AP

Updates: Follow our live coverage of the midterms

With the US mid-term elections less than a fortnight away, Democrats and Republicans are already crying foul and turning to lawyers.

Democrats are accusing Republicans of trying to disenfranchise many of their supporters, especially in the black and Hispanic Communities, by gerrymandering and introducing a raft of new restrictive voting laws.

In turn, the Republicans allege the Democrats are trying to boost their chances by fraudulently inflating the electoral rolls with people who are not legally entitled to vote.

It has led to a blizzard of litigation for an army of lawyers.

“It is becoming a cottage industry,” said Logan Churchwell, a spokesman for the conservative-leaning Public Interest Legal Foundation.

“This is a scare tactic and the buzzwords are voter fraud or voter suppression,” he says. “Late-breaking interest in election law is often fuelled by cynical attempts to invigorate political bases. This is of course bolstered by snap fundraising efforts and a contemporary political culture that feeds on outrage.”

Both sides of the political spectrum have done this, he says. “The left has been doing it more but it is also coming from the right.

“You get a lot of activity in October and November and then people forget about it,” Mr Churchwell says. Better than pre-election hype, he suggests that once elections are over the officials involved assess the voting process to highlight issues and suggest policy reform to fix highlighted issues.

“We would all be better suited if election law grievances are carried over after results are tallied so public policy reforms can occur with the same level of interest when legislatures gavel back into session”, says Mr Churchwell.

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More from David Millward:

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Part of the problem is structural because laws are set at local and state level, said Richard Briffault, Joseph P. Chamberlain Professor of Legislation at Columbia Law School in New York.

“That creates some uncertainty, especially when states are constantly changing and tinkering with their laws.

“Every time there is a change there is a concern that it is going to favour one set of voters or party and hurt another group of voters or party.”

Whether the litigation will continue after the election depends on the result.

“At this stage, there aren’t any sore losers. Afterwards, it depends on the margin of victory. If a candidate wins by more than 1 per cent it is unlikely there will be a challenge.”

While legal challenges are hardly new. Perhaps most well-known is the controversial court ruling in the knife-edge 2000 presidential election between Democrat Al Gore and George Bush to settle the Florida vote in favour of the Texas Governor and secure the White House for the Republicans. But a Supreme Court ruling in 2013 that effectively gutted the 1965 Voting Rights Act by removing the need for federal preapproval for states to change voter laws. This paved the way for tighter laws in many areas and sparked a wave of litigation.

The six states involved in the 2013 case - Alabama, Arizona, North Carolina, Ohio, Texas and Wisconsin - have all been embroiled in court cases in the run-up to this year’s mid-term election.

The controversy has centred on “Voter ID laws” which supporters say protect the integrity of the ballot. Opponents dismiss them as blatant voter suppression.

One of the most controversial cases involves North Dakota, where Democrat Heidi Heitkamp is fighting to hold on to her Senate seat.

She scraped home in 2012 by only 3,000 votes, helped in part by the support of native Americans.

However, changes passed by the Republican legislature requiring that voters present an ID including a street address could disenfranchise native Americans living on reservations. Not surprisingly, the legislation has been challenged.

In turn, conservatives cite what they regard as abuses in south Texas where voter registration applications have been distributed in which the answers to questions “Are you a United States citizen?” and “Will you be 18 years of age on or before election day?” were pre-printed “Yes”.

Elsewhere lawyers have been challenging electoral maps, accusing the Republicans of fiddling the districts to give them an unfair advantage in the congressional mid-terms.

In Maine, a sparsely populated rural state in New England, a legal dispute has erupted over an unusual crowdfunding campaign.

It started while Senator Susan Collins was considering whether to endorse Brett Kavanaugh’s nomination to the Supreme Court.

The campaign solicited donations which it said would only be used to support any Democratic opponent of Ms Collins if she endorsed Mr Kavanaugh. By the time she threw her support behind Mr Trump’s nominee, 100,000 donors had chipped in, raising $3 million.

Conservative groups claim the campaign amounted to extortion and are demanding that the organisers be prosecuted.

That is not the only litigation threat in Maine. Its decision to adopt “ranked choice voting” - rather than the traditional first past the post method - has enraged Bruce Poliquin, the sitting Republican congressman.

Mr Poliquin has refused to rule out challenging the result should he be defeated after second preferences are taken into account, having won more first-choice votes than his Democratic opponent.

Even before the result is known, Mr Poliquin is being accused of sour grapes.

“I think the focus should be on talking to voters and not wrangling with lawyers,” said Phil Bartlett, chair of the Maine Democrats. “Maine people have spoken clearly on ranked choice voting, they want it.”

With no change in view, it looks as if the will of the people will not only be decided at polling stations but in the courtrooms across a bitterly divided United States.