-By Margaret Cronin Fisk

November 5, 2012- The U.S. presidential contest, marked by two dozen lawsuits in the past six months over voter rules including photo ID requirements and limited poll hours, may see a new wave of litigation starting tomorrow over who gets to vote and which ballots will be counted.

Voter rights advocates and lawyers for the candidates may initially head to court to keep polls open longer because of machine breakdowns, to make up for Hurricane Sandy's aftermath, or to bar partisan poll-watchers challenging the rights of some to vote, said Edward Foley, a law professor at Ohio State University. Democrats in Florida yesterday sought to extend early voting hours there, and in Ohio they are challenging last- minute provisional ballot restrictions.

The biggest battles, however, may come after Election Day, and could lead to a replay of 2000 where courts determine the next U.S. president. Disputes over the counting of such provisional ballots in swing states including Virginia, Ohio and Florida would dominate such a scenario, said Jocelyn Benson, a law professor at Wayne State University in Detroit and director of the Michigan Center for Law and Administration.

“Provisional ballots could very likely be the hanging chads of 2012,” Benson said. “The battle over provisional ballots will take center stage where any election is close and a significant number of such ballots have been cast.”

Litigation over such ballots, usually cast when a voter’s credentials are challenged or inadequate, and counted after the polls close, may at the very least push resolution of the race between President Barack Obama and ex-Massachusetts Governor Mitt Romney past Nov. 6. Challenges have already begun, with voter advocates in Ohio Nov. 2 suing over what they said is an attempt by Republican officials there to undermine court rulings on provisional ballots with new identification rules that may confuse voters.



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