A new political strategy has emerged in this photo-finish presidential race: File a flurry of lawsuits before the first votes are even tallied.
From Oregon to Florida, Democrats and Republicans are firing away at such issues as touch-screen voting machines (search) and provisional ballots (search). The lawsuits represent a hard-learned lesson from 2000: do not wait until all the votes are counted to go to court.
Others believe the legal wrangling may serve only to damage the voting process.
"It's disastrous for fundamental faith in the system itself," said Doug Lewis, executive director of the Election Center, a nonprofit organization working with polling administrators across the country. "Pretty soon you get people saying, `Shoot, then why bother to vote?' There has been such a concerted effort to beat up on the system itself that people need to step back and understand that if you destroy the very process by which your candidate gets elected, then what have you gained?"
In more than a dozen states, including the big battleground sites of Florida, Ohio, Michigan and Missouri, a series of lawsuits has been filed in the past few months. Most of the cases were brought on behalf of Democrats.
Two of the most common legal battles are over electronic voting and provisional ballots.
Florida and 28 other states will use touch-screen machines, but that has prompted lawsuits claiming the ATM-like devices are unreliable because they produce no paper receipts that could be used in a recount. On Tuesday, a lawsuit filed in New Jersey asked that 8,000 of the machines be banned on Election Day for those reasons. A trial over the e-voting machines also got under way this week in Florida — just as residents started going to the polls for the start of early voting.
Provisional ballots — essentially replacement ballots given to voters whose names somehow get left off precinct rolls — have prompted intense fighting in battleground states such as Ohio, Michigan and Florida.
In court decisions issued this past week, Democrats won their fight to ease restrictions on such ballots. In Ohio and Michigan, judges ruled that a voter who shows up at the wrong polling place can still cast a provisional ballot as long as he or she is in the right city or county.
But on Monday, Republicans scored a victory for their side of the argument when the Florida Supreme Court ruled that provisional ballots cannot be counted unless they are cast in the correct precinct.
Another fight in Florida involves a Democratic lawsuit challenging an order to disqualify voters. Secretary of State Glenda Hood instructed county officials to throw out registration cards from voters who do not check a box confirming they are American citizens, even if they sign an oath on the same form swearing they are citizens.
Hood maintains state and federal laws require the box to be checked. The lawsuit marks the fourth time since August that the party has taken the Florida secretary of state to court.
The ACLU is monitoring election practices in several states, including Nevada, where a judge refused to reopen registration for Clark County residents whose registrations may have been destroyed by a Republican-funded group. Clark County, home to Las Vegas, is the state's most populous county.
McDonald, of the ACLU, said all the legal activity is not a bad thing.
"It heightens scrutiny, and I think that's all well and good," McDonald said. "I'm reassured when the court identifies a problem. It means there is a solution."
After the presidential battle of 2000, the ACLU sued over Florida's faulty punch-card ballots in a dispute that introduced the terms "hanging chads," "dimpled chads" and "pregnant chads" to American pop culture. After 36 days of lawsuits and recounts, George W. Bush won Florida, and thus the White House, by just 537 votes.
"Filing lawsuits has been part of the election strategy since the last election," said University of South Florida political science professor Susan MacManus, who until last year was chair of the Florida Elections Commission, appointed by Republican Gov. Jeb Bush. "Both parties have known all along there would be problems with this election, and that it would go right down to the wire."
She added: "This is a fight to the death, and both sides are prepared to go all the way."