DURHAM, NC--In North Carolina, extending poll hours for early voting has raised questions that might presage an inconclusive national election. In the words of one legal scholar, "we could create a similar situation as Bush v. Gore without a single hanging chad."
The essential question is who has authority to extend polling hours if voters cannot be accommodated. In North Carolina, after two counties requested to have their polls open for a few additional hours on Saturday, the state elections board determined that all North Carolina polls would remain open until 5pm unless local election officials from both parties agreed to close them in their county at the originally-scheduled 1pm.
Edward Foley, a law professor and the director of Election Law @ Moritz, called North Carolina's decision a "good move" because "the order was statewide and in fairness to everybody." He also pointed out that the decision was made administratively, rather than in response to a court order.
However well-handled, the decision to extend North Carolina's early voting hours might indicate a few unsettling factors in Tuesday's national election. One, voter turn-out is going to be through the roof. In North Carolina, many early voters have waited several hours to cast ballots, which is why more than half of North Carolina counties chose to remain open through late Saturday afternoon. Even with good preparation, it's unclear that every polling location can serve a flood of voters during a limited window on Election Day.
Two, the decision to extend voting hours--or make other last-minute accommodations, such as provisional ballots--risks being political and may appear to disenfranchise a particular group of voters. In Orange County, one of North Carolina's blue dots, county election officials decided not to extend polling hours on Saturday. The number of voters didn't support an extension, they said. Obama volunteers working the poll at the UNC Chapel Hill disagreed.
Hopefully by Tuesday the thirty states with early voting will have dramatically reduced the number of people who will wait in line. But states that haven't voted early--Pennsylvania, for example--could see tremendous back-ups. If so, who determines whether polls can extend their hours?
"There's a lack of sufficient guidance in state laws in how to handle that," Prof. Foley said.
Anticipating just such a problem, a few months ago Foley's own team ran a hypothetical scenario, in which a snowstorm hit Denver on the afternoon of November 4 and election officials asked to extend voting hours. The process, described on NPR, revealed that state laws didn't provide an answer. The case, called Obama v. McCain, was argued by a "distinguished panel," who eventually ruled in favor of Obama.
"The hypothetical scenario suggests that judges are going to be sympathetic to what's on the ground," said Foley.
Of course, the real hope is that none of this will be a problem. Alerted by the high volume of voters in the primaries, aware of the Obama's campaign's--and, to a lesser extent, McCain's--drive to increase voter registration, cognizant of the intense interest in this election, and confident that many people have already taken advantage of early voting opportunities, perhaps polling locations and election boards are perfectly prepared for voters on November 4.
Mike Ashe, the charismatic and optimistic director of elections in Durham County, wrote of the possibility of extending poll hours on Tuesday: "Don't even think about that!! It would be a superior court judge and there would have to be very strong evidence of wrong doing or serious problems. This has never happened in Durham and I don't expect it to be an issue. Life is good and getting better."