WASHINGTON // The 2008 presidential contest is not just a battle for votes. It is also a battle over who is a valid voter. In a race where passions are high and turnout is expected to break records, both parties are accusing the other of trying to gain an edge by manipulating the voting process, whether by registering phantom voters or barring legitimate ones from the polls.
Ever since the 2000 election, which was decided in favour of George W Bush by a razor-thin margin and only after a series of recounts and civil actions that went all the way to the Supreme Court, campaigns are increasingly finding themselves in a new battleground: the courtroom. Daniel P Tokaji, a professor at the Moritz College of Law at Ohio State University, said the 2004 election had more legal challenges than any in history, but added that this year's contest could soon earn that dubious distinction.
"I think it's certainly at the point where this election is beginning to rival 2004 in terms of being the most litigated presidential election," he said. "The big difference is that in 2004, it was the Democrats and the progressives, and in this one, it's Republicans and conservative groups who have been more aggressive." Seventeen states have "major" election law cases pending, according to an online newsletter, Election Law @ Moritz, for which Mr Tokaji writes. Many are challenges by Republicans to the validity of newly registered voters, which goes to the heart of a Democratic campaign that has signed up an unprecedented number of US citizens.
The court rulings in those cases could dramatically effect the outcome of the election, particularly if it is a close decision. Bev Harris, the director of Black Box Voting, a non-partisan watchdog group in Washington state, said she worried about the potential for conflict as the results are tallied. "I'm really uncomfortable with the potential for things to go really wrong this November," Ms Harris said. "There is more controversy on a greater scale than I think any of us can remember."
The most prominent controversy so far centres around a Republican accusation that an activist group, the Association of Community Organizations for Reform Now (Acorn), is fraudulently signing up Democratic voters. The group is being investigated by the FBI for what Republicans have called "systematic voter fraud". The group, which has held voter drives in 21 states, claims to have registered about 1.3 million voters, the bulk of whom are minorities, working class and Democrat. But Republicans have challenged the validity of some of those new registration forms, citing instances where the group registered a single name multiple times and, in some cases, made up names altogether.
In one egregious example, a voter in Cleveland, Ohio, admitted that he had signed 73 registration forms; in Florida, a worker for the group registered Mickey Mouse. In Wednesday's presidential debate, John McCain, the Republican candidate, accused Acorn of threatening the "fabric of democracy". Mr McCain has also accused his Democratic rival, Barack Obama, of having close ties to the group. Mr Obama represented Acorn in a 1995 civil action, but denies intimate involvement with their voter registration practices. The Democrat has also called the accusation a distraction from important issues and said Republicans have overblown the threat posed by a small fraction of Acorn's workers.
"This isn't a situation where there's actually people who are going to try to vote because these are phoney names," Mr Obama said this week in Ohio. On Friday, Bob Bauer, the top lawyer in the Obama campaign, said the Republican focus on Democratic voter registration efforts was a plot to suppress legal votes and to "sow confusion and harass voters and complicate the process for millions". The battle has been especially keen in key swing states, like Ohio, Wisconsin and Florida, where the validity of new registrants - the majority of whom are legitimate - is being challenged in courtrooms.
Emboldened by the Acorn flap, Republicans have pushed for states to check new voter registrations against state driver records and other databases. Voters rights groups claim such cross-checking will result in thousands of valid voters - mostly Democrats - being turned away at polls because of clerical errors. Still, Republicans, including the attorney general of Wisconsin who is a co-chair of Mr McCain's campaign, have sued in court for such screening, saying names that do not match state records should be stripped off the list.
In Michigan, James Carabelli, the Republican Party chairman in Macomb County, is alleged to have told a reporter that he would use publicly available foreclosure lists to purge voters who failed to register under a new address. Democrats there have sued, calling the tactic a way to "threaten, harass and intimidate" legitimate voters. Mr Tokaji, like other experts, said many of these lawsuits, which are often brought in the name of preserving the election's "integrity", are nothing more than partisan meddling. "In some cases the evidence of fraud is so scarce that it belies any other conclusion but that vote suppression is the motive," he said. And it is not only Republicans whose motives have been questioned. In Ohio, a state that many believe is the key to victory, Jennifer Brunner, the Democratic secretary of state, is in court trying to defend her use of a formality to block absentee ballots distributed by Republicans, a case the Republicans have pointed to as an example of suppression. In a victory for Ms Brunner, the Supreme Court ruled on Friday that she will not have to hand over to Republicans 200,000 new registration applications that did not match state or federal databases. Republicans had sued for access to the records to challenge the votes. The cascade of litigation could loom large next month, particularly for Mr Obama, who is expecting his party's massive registration effort to give him a significant boost. If Republicans succeed in trimming those numbers, it would benefit Mr McCain, who is behind in the polls and battling for every last vote. But in the end the significance of such legal challenges depends on how close the race is in November. "If we have landslide, nobody is going to care about any of this stuff after the election," Mr Tokaji said. "If it's close, then everyone will." sstanek@thenational.ae