Erwin Chemerinsky on legal challenges to the presidential election

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Note to editors: Erwin Chemerinsky can be reached for additional comment at (919) 613-7173 or

Duke Law Professor Erwin Chemerinsky cautions that it is highly speculative to look ahead to legal challenges to the upcoming presidential election.

Erwin Chemerinsky“Nobody could have known five days before the 2000 election what the issues were going to be in Florida,” says the Alston & Bird Professor of Law. Still, he says, one area with a great potential for litigation, involves the provisional ballots required by the Help America Vote Act (HAVA) of 2002.

“One provision of HAVA says that if there’s doubt as to somebody’s voter registration, they have to be given a provisional ballot. These will have to be counted by hand, and there’s going to have to be a determination of whether or not they’re valid. This could be our repeat of the issues that came up in Florida, since within a state, different counties could treat similar provisional ballots differently. There could be all sorts of litigation over whether or not the provisional ballots are properly cast. We’re talking, conceivably, about hundreds of thousands of provisional ballots in a state where the margin of victory is much smaller than that–Ohio being an example of a state where people are anticipating a huge fight over this.”

Court challenges could also arise if voters are turned away from polling places due to alleged improper registrations and are not given provisional ballots, adds Chemerinsky.

He finds another potential source of litigation in a Colorado ballot initiative that would split Colorado’s nine electoral votes proportionately based on the popular vote–beginning with the 2004 election, if the initiative passes.

“In every state but Maine and Nebraska, it’s winner-take-all, yet there’s nothing in the Constitution or in federal statute that mandates winner-take-all. Imagine that the election is in doubt, and whether Colorado does winner-take-all or a proportionate split of the votes determines who is the president. Then you’ll have that whole issue litigated. Can Colorado change its rules concurrent with the election, can it be done by initiative as opposed to by the Legislature–those are the issues that would come up.”

Additionally, there is always the possibility of litigation arising due to problems with voting machines and the use of different voting technologies in different parts of a state, notes Chemerinsky. “This, of course, led to the Florida litigation in 2000, and could easily arise again.”

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