The Supreme Court Ballot (from ATSNN)

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Florida 2000: The Sequel
Five ways the election could end up in court, again.

Nightmare Scenario No. 1: Litigation Following Voting Glitch
So, now we have jurisdictions rolling out their voting equipment for the first or second time for use in a presidential election. This is like opening the first draft of your play on Broadway. We should expect technical problems with new systems, especially when those systems have to be operated by overworked, underpaid, and undertrained poll workers. Just think of an 80-year-old poll worker trying to reboot a new electronic voting machine. And only last week in Florida�which decided to move to electronic voting�we witnessed the spectacle of outgoing Palm Beach County elections official Theresa LaPore (of "butterfly ballot" fame) explaining away a computer crash that forced a pre-election test of electronic voting machines to be postponed.

Voting glitches can cause any number of problems that may end up in court. We could see a demand for a recount (something that could be compounded into an even bigger problem if the recount involves a problem with electronic voting machines that fail to produce a paper record). Widespread machine failure could cause delays at the polls�which will inevitably lead to calls to keep them open longer, followed by potential litigation over whatever administrative or legal decision is made. And with the parties expected to have armies of lawyers in battleground polling areas on Election Day, you can be sure any problem will be pounced on promptly

Nightmare Scenario No. 2: Litigation Over Whose Vote Counts
The Help America Vote Act, which was supposed to make things better after Florida, may make things much worse in the short term. One HAVA provision requires states to allow voters who believe themselves eligible to vote, but whose names do not appear on the voter rolls, to cast a "provisional ballot," with election officials later determining whether those ballots should be counted. But HAVA is unclear on whether a voter who casts a vote in the wrong precinct (but the right county) is entitled to have that vote counted.

You would think that with two weeks to go before the election, this ambiguity would have been resolved. But litigation in at least four states on this issue is just getting under way. Courts have reached somewhat conflicting decisions on this issue in Ohio, Florida, Colorado, and Missouri, and further appeals and decisions are coming. The issues may not be finally resolved in time for Election Day.

Nightmare Scenario No. 3: Litigation Over Colorado's Amendment 36
On Nov. 2, Coloradans will consider Amendment 36�a voter initiative�that, if passed, will change the way that Colorado's nine electoral votes are allocated from a winner-take-all to a proportional system. This initiative unambiguously states that it is intended to apply to this year's presidential election. So, the winner in Colorado could end up with 4 or 5 votes rather than 9, and the election could then hang in the balance over a technical legal question: whether Amendment 36 can properly apply to this election.

The major parties so far have stayed out of this particular dispute, but a businessman has just filed suit in federal court claiming that the retroactive nature of the amendment violates the constitutional right to due process (a somewhat dubious argument) and putting forth the more serious argument that Amendment 36 violates Article II of the Constitution, which vests the state legislature with the power to pick the rules for choosing constitutional electors.




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