New Delhi, India :November 2, 2008 – Charan Lal Sahu, Advocate, Supreme Court of India. New Delhi - Some advocates and interested people in the election of the United States, flocked at Chamber No. 96, Supreme Court of India, New Delhi, where Mr.Charan Lal Sahu does his practice and asked him to give some comments on the probability of lawsuits that can erupt over the next week’s Presidential Election in America.

People expect me to give my views on US Elections and their anticipated lawsuits. I being an Advocate of the highest court in India, can’t afford to displease you.
 
I feel that if the outcome by chance is close, it shall most probably be the strategy by the losing party to file the lawsuits over voting irregularities. 

The encounter or clash would be over the rules for a recount, or how to deal with voters who were not added to the rolls even though they are registered on time as permissible under the election laws.

Lawyers could present their argument how to count the paper ballots used when the electronic machines break down, or where a judge was wrong in deciding to keep certain polls open late.

The problem is likely to develop on the state’s heavy use of provisional ballots, which are issued when a voter’s identity or registration cannot be verified immediately or when polls stay open late.

Mr. Sahu, what would you like to say about the history of Ohio?

Mr. Sahu: If we go by the history, Ohio has a record of requiring large numbers of voters to use these ballots, which can easily be disqualified and are not counted until after the election. I would prefer to quote Edward B. Foley, a law professor at Ohio State University who is one of America’s leading experts on voting litigation.
His views: “Provisional ballots are really the Achilles’ heel of our electoral process, because in a close race that is the pressure point lawyers use to try to undo the results”  

“The larger the number of provisional ballots cast in a state, the more vulnerable the Achilles’ heel, and Ohio has for a couple of elections used more of these ballots than most any other state.”

I endorse the views of Ian Urbina, NYT: “ In 2004 and 2006, Ohio, unlike most other states, increased the percentage of provisional ballots used by voters. In the 2004 presidential election, which hinged on Ohio, the margin between the candidates was about 118,000 votes, of 5.7 million cast. Of those, more than 158,000 were provisional ballots.

Even more of these ballots will be cast in Ohio on November. 4th, voting experts predict, because many newly registered voters may bring the wrong form of identification to the polls. They may  fail to comply with the state’s new voter law that requires all voters to show government-issued identification or an approved document with a voter’s name and address. Others may go to the incorrect polling place, or show up at the polls only to find that they are not listed on the state’s new computerized voter registration list, which has already been the subject of intense partisan wrangling.”

Provisional ballots, in fact, were created by Congress in 1993 to ensure that voters would never be turned away without casting a ballot when they showed up at the polls.

But federal law says little about how these ballots should later be verified and counted. In Ohio, unlike most other states, the methods for determining which provisional ballots count vary by county.

“Our goal has been to get in front of this problem,” said Jennifer L. Brunner, the Ohio secretary of state, who has issued directives over the past two weeks creating uniform standards for how counties must handle the ballots. According to Ms. Brunner, he has issued necessary instructions the county election officials that they cannot disqualify a provisional ballot if a poll worker mistakenly gives one to a voter.
Provisional ballots will also come into play if a huge turnout causes long lines in Ohio, leading lawyers to ask the courts to keep polls open late. When polls are kept open after hours, the ballots cast must be provisional.

The latest state polls show Barack Obama with an edge of from three to nine points over John McCain, leaving Ohio in the tossup category. Problems with the ballots will not affect the outcome if the race is not close, but federal election officials and voting experts say they are closely monitoring their use and the possibility of lawsuits in Ohio and other swing states.