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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Justice Stevens' Words of Hope – and Caution

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November 2, 2004

In denying the request to vacate the Sixth Circuit's stay in Spencer and Summit County (the polling place challenges) cases, Justice Stevens expressed the "faith that the elected officials and numerous election volunteers on the ground will carry out their responsibilities in a way that will enable qualified voters to cast their ballots" (p.2 of Stevens' opinion).

These words are a signal that Justice Stevens, as Circuit Justice who explicitly reaffirmed his "power to grant the relief requested," will watch vigilantly as events unfold today. They echo Judge Ryan's concurrence in the Sixth Circuit's stay ruling "the federal courts will be open to respond to proof-supported allegations of an unconstitutional burden on Ohio citizens' right to vote."

Like Justice Stevens, we hope that there is no need to go to court – in Ohio or elsewhere in the country – to protect the right to cast a ballot. We hope, in particular, that all voters who demonstrate their eligibility at their polling places are able to cast conventional ballots as in years past and, further, that all would-be voters whose eligibility remains in doubt are permitted to cast provisional ballots in accordance with HAVA. While questions may arise later about the process for determining whether provisional ballots should count as votes, at least the basic "voter's insurance" adopted by Congress will have worked as intended if, at the end of the day, every American who goes to the polls believing to be qualified to vote is able to register a choice in this year's election.