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Voter challenges going ahead in Ohio after split 6th Circuit issues stay

[JURIST] A split panel of the US 6th Circuit Court of Appeals stayed two lower court rulings early Tuesday, holding that the Ohio Republican Party can place people at polling stations to challenge the eligibility of voters. Two Ohio federal judges had ruled Monday that challengers could not be present today because it might intimidate voters (see this Paper Chase report). In a 2-1 ruling - the two Republican-appointed judges prevailing, and the Democratic-appointed judge in dissent - the court held that the presence of monitors at the polls would not be an unconstitutional burden on voters and that a last-minute change could cause more harm. The court wrote:

Instead, the courts below found a likelihood that the right to vote would be unconstitutionally burdened by having challengers present at the polling place, and that the presence of such challengers was not a sufficiently narrowly tailored way to accomplish legitimate government interests. Of course if we assume that the presence of challengers burdens the right to vote, it may certainly be argued that a more narrowly tailored approach is available. But the plaintiffs do not appear likely to succeed on the necessary primary finding that the presence of challengers burdens the right to vote. Challengers may only initiate an inquiry process by precinct judges, judges who are of the majority party of the precinct. The lower court orders do not rely on the likelihood of success of plaintiffs’ challenges to the procedure that will be used by precinct judges once a challenge has been made. Longer lines may of course result from delays and confusion when one side in a political controversy employs a statutorily prescribed polling place procedure more vigorously than in previous elections. But such a possibility does not amount to the severe burden upon the right to vote that requires that the statutory authority for the procedure be declared unconstitutional.

Read the court's opinion here [PDF], a concurrence here [PDF] and a dissent here [PDF] (all via Election Law @ Moritz at Ohio State University). The Ohio poll challenges will go on barring a successful last-minute appeal to the US Supreme Court, already underway according to reports. AP has more. Professor Edward Foley of OSU offers extended legal analysis of the ruling, noting that it is being appealed. The Sixth Circuit decision would seem to conflict with a ruling late last night from a federal judge in Newark (reported on JURIST here), but in Ohio the Circuit stays would govern; press reports say the GOP has appealed the Newark ruling to the Third Circuit.

UPDATE: The US Supreme Court refused a request Tuesday morning to stay the 6th Circuit decision. Justice John Paul Stevens, who handles appeals from Ohio, wrote in a chambers opinion that "the allegations of abuse made by the plaintiffs are undeniably serious - the threat of voter intimidation is not new to our electoral system." AP has more.

UPDATE 2: Justice Stevens' denial of request for stay is now online here [PDF].

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Paper Chase is JURIST's real-time legal news service, powered by a team of 30 law student reporters and editors led by law professor Bernard Hibbitts at the University of Pittsburgh School of Law. As an educational service, Paper Chase is dedicated to presenting important legal news and materials rapidly, objectively and intelligibly in an accessible format.

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