Even if tonight’s presidential vote is not close enough to spark a contested election and a major legal battle for the White House, election law experts have already identified plenty of voting issues today that could mean post-election litigation. If the presidential election is not extremely close, “the press and the public won’t care for another three and a half years,” said Richard Hasen, a professor of law and political science at the University of California, Irvine. But any number of races further down on the ballot that are close could be pushed into the courts, said Hasen, who wrote about how election litigation has more than doubled since the Bush v. Gore election in his new book, The Voting Wars: From Florida 2000 to the Next Election Meltdown.
In Ohio, ongoing litigation about the way provisional ballots are counted will continue so that election law is settled, even if the media spotlight has moved on, Hasen said. And in New Jersey, voters have been complaining about problems with the email voting system, something that would not likely affect the presidential race but could cause challenges and post-election litigation for all of the down-ticket races that are close, he said.
Many of the problems were expected. Voting machines have malfunctioned in several states, including a video by one Pennsylvania voter that shows him selecting Barack Obama but the touchscreen recording his vote for Mitt Romney.
An election protection call center at Reed Smith in Washington D.C. reported heavy volumes of calls from voters, including a heavy volume of calls about voting machine problems in New Jersey, where Hurricane Sandy caused major election confusion, and Virginia, where there was also some confusion over the new voter ID law.