Published September 20, 2004
WASHINGTON – On Nov. 2, the voters will speak. The next morning, it may be the lawyers' turn.
Come Election Day, at least five "SWAT teams" of Democratic lawyers will have their bags packed, ready to go to whichever battleground state might turn into the next Florida.
Republicans have created an extensive network of lawyers in key states, and are flying in reinforcements now, weeks before the election. In Florida itself, Republicans have set up a command post in Tallahassee, the capital where hundreds of outside lawyers descended for the 2000 recount.
Once again, courts and lawyers may play a decisive role in picking the president.
Republican and Democratic lawyers both say at least one court challenge seems inevitable. Both sides are far more ready for the fight this year, and unlikely to let any viable challenge slip through their fingers. Instead of one Florida, the country could wake up on Nov. 3 to three or four.
"There's no perfect process, and there are always creative lawyers who can come up with something to complain about if the election is close," said Bobby Burchfield, a Republican election lawyer who represented President Bush in the 2000 fight.
Although the list of battleground states numbers 17, there are fewer where a postelection court fight could occur.
Florida is a candidate to be the next Florida, but Ohio and Pennsylvania are better bets, lawyers said. Missouri could also be the scene of a major court fight if Sen. John Kerry (search) makes up ground there.
All those states have large numbers of Electoral College (search) votes at stake, potentially making even small numbers of disputed ballots worth fighting over. Other factors in those states that could produce lawsuits include problematic voting machinery, allegations or a recent history of troubled election procedures, and state election laws that allow postelection challenges.
More than 5 million voters in Ohio, roughly three out of four registered voters, will use the same punch card ballots that produced the pregnant and hanging chads in Florida. Two out of three Missouri voters will use them.
Other states to watch for litigation include New Mexico, Nevada, Colorado, Wisconsin and perhaps Arizona and Oregon. The reasons include potentially balky equipment, voter registration problems and recent changes in state laws and procedures.
Other battleground states are less likely to yield court fights, either because election laws in those states make challenges too difficult, or because historically smooth election procedures mean few problems on which to pin a court case. Such states include New Hampshire, Maine, Michigan, Minnesota and Iowa.
The Bush-Cheney campaign says it is targeting 30,000 precincts in 17 states seen as key to victory or the scene of past election problems, and Democrats cite a similar number. Lawyers will be in many of those precincts and on call for others.
Both sides have more lawyers working on this election than on any before, numbering well in the thousands when paid advisers, volunteers and outside organizations are counted.
"Our SWAT teams ... will have done nothing but prepare through the fall," said Bob Bauer, counsel to the Democratic National Committee. "We want to be able to send teams out to fight these wars simultaneously."
The teams of top Democratic lawyers, some in Washington and others scattered around the country, are learning the intricacies of election law and studying the voting histories of a handful of crucial states where polls indicate Bush and Kerry running roughly even.
Republicans in Ohio will have about two dozen lawyers on call in contested Columbus alone, Republican election lawyer Richard Siehl said. They'll know the local election procedures and the local judges. "You want people who have been before that judge before. They can bring with them their experts from Washington D.C. or wherever, but typically you have local lawyers shepherding the case."
In July, the Republican National Lawyers Association (search) ran a "Florida school" for about 200 Republican lawyers from around the country.
Lawyers on both sides have already filed suit over election procedures and equipment in a handful of key states, although it is unclear whether any of the litigation will affect the election.
The planning is an important measure of the high stakes this time around and the lessons of Florida in 2000. Then, 36 days of uncertainty and court fights ended with a Supreme Court ruling that effectively called the election for Bush. The margin was 537 votes.
"Democrats feel like they really just got out-hustled four years ago," said Daniel Bromberg, a Washington lawyer who is helping the Democrats' recruiting effort.
On Election Day, partisan lawyers will be at polling places that one side, or both, sees as especially important or prone to trouble. Lawyers will be ready to intervene on the spot if they see problems such as the confusing "butterfly ballot" in Florida. They could also gather evidence for a court case later.
Some lawsuits could be filed even before polls close. Demands for a recount could follow that night.
Democratic lawyer Mitchell Berger said Palm Beach County election supervisor Theresa LePore didn't return his frantic phone calls about the butterfly ballot on Election Day 2000. Berger, who is advising Kerry in Florida and elsewhere this year, said he will dispatch a lawyer to sit in the lobby of LePore's office on Nov. 2.
"We'll be right up in her face this time," Berger said.
For all their planning, lawyers on both sides say they didn't see Florida coming and might be similarly blindsided this year.
"The reality is that it's impossible to predict where you're going to have a problem," said Benjamin Ginsberg, a longtime Republican election lawyer. "The fickle finger of fate is too great."
The Florida debacle was a historical freak — a confluence of a near tie at the ballot box, technical voting problems severe enough to cast doubt on large numbers of votes, state law that allowed some kinds of postelection challenges and, most importantly, the potential for the disputed ballots to determine the winner.
As improbable as Florida was, it could happen again.
The best-remembered controversies in Florida grew from technical problems with voting itself, and many of those problems still exist. An estimated 32 million voters in 19 states will use punch cards.
An American Civil Liberties Union lawsuit pending in Ohio claims punch card and some newer optical scan voting systems disenfranchise some voters, especially blacks.
Other potential legal fights this year echo Florida. For example, lawyers foresee problems with large numbers of absentee and overseas or military ballots in several states, including Ohio.
Litigation could also focus on the hodgepodge of state laws and procedures over who must show identification at the polls and why. In New Mexico, a Republican state senator and others have already gone to court claiming first-time voters who don't register with a county clerk must show ID, but a judge ruled this month that changing the rules now would disrupt the election.
As in most elections, there will also be new technical and polling place problems this year, and any of them could mean a lawsuit.
Court fights could arise from "provisional" ballots, a backup system required nationally for the first time in 2004. Rather than be turned away, voters can cast a provisional ballot if they come to a polling place on Election Day to find their names are not on the rolls because of bureaucratic error or other problems.
"I could easily envision a situation where Republicans and Democrats are there, watching, while election officials decide whether to count the provisional ballots the same way they watched the hanging chads" in Florida, said Elliot Mincberg, legal director of People for the American Way. The liberal advocacy group is trying to help recruit 6,000 lawyers to volunteer as poll watchers and advisers on Election Day.
Democrats have already filed suit in Missouri over handling of provisional ballots in the August primary. Of 5,914 provisional ballots cast in a Chicago primary in March, only 416 were ever counted.
After Florida, election officials spent millions on new voting equipment. Electronic voting machines that resemble ATMs were supposed to be far more accurate and reliable than the old punch card or lever systems, and about twice as many voters will use them in 2004 as in 2000.
Because they are new, however, the touchscreen voting machines make litigation more likely this year, rather than less. The machines performed well in the Florida primary last month, but lawyers still say the machines could be vulnerable to computer hackers, power failures or other glitches.
With Florida in mind, lawyers also say the electronic machines have another major flaw. Most leave no paper trail, meaning no physical ballots to use in a recount. A Democratic lawsuit on this point failed in Florida last month.
Another potential problem — new voters. Energized by the razor-thin result four years ago, both parties and numerous outside groups have beat the bushes for new voters. By some estimates, their efforts have registered about 1 million new voters. It is an open question how many of those people will really vote, but both sides predict problems at polling places when some of those new voters show up. Some registrations may be faulty or even fraudulent, and the voters themselves inexperienced.
There are always Election Day mishaps, and many, many votes that are cast are not counted, said Doug Chapin, director of the nonpartisan Electionline.org, a clearinghouse for information on election reform.
"In the current environment, with the country so deeply divided and both sides so vigilant, there is no problem that is too small to get noticed," Chapin said. "The woods aren't necessarily drier in 2004, but more people have matches."
The Supreme Court's Bush v. Gore ruling that ended Florida recounts doesn't provide much guidance for a new court fight this year. The justices took pains to say the ruling applied only to the unique circumstances of Florida in 2000, although their reasoning has been cited in numerous court cases since.
The chances of any new presidential election court fight making it all the way to the Supreme Court are remote. But then, that's what the lawyers said last time.