Lawyers preparing for election tangles
By Emilie Lounsberry, Craig R. McCoy and Rose Ciotta for the Philadelphia Inquirer
31 October 2004

With a Bush-Kerry photo finish possible in Pennsylvania - and New Jersey, too - it could all add up to "a perfect storm" of litigation all too reminiscent of Florida in 2000.

Those are the words that Democratic Party lawyer Sherry A. Swirsky uses to describe the legal snarls that could swamp the courts on Tuesday and beyond.

Republicans in Pennsylvania say they will be on the lookout for fraud. Democrats in the state say they will be geared up to stop voter intimidation.

If the vote is as close as polls predict, the voting machines, too, may come under scrutiny.

Swirsky says she is among 2,000 lawyers on call for state Democrats that day. Carl M. Buchholz, counsel for the Bush-Cheney campaign in Pennsylvania, promises more than 1,000.

By Friday night, storm clouds were gathering.

In Philadelphia, Republicans were poised to contest as many as 10,000 registered voters who were sent letters by the GOP but whose letters came back undelivered. The party says the Philadelphia list includes "voters" registered at vacant lots and boarded-up buildings and 15 dead people. When The Inquirer asked for the list, the GOP provided just six names and addresses, with photos of vacant lots or buildings.

In Trenton, Democrats warned that thousands of new voters' names were not on books at polls in Camden, Essex, Passaic and Mercer Counties and asked the state attorney general to protect those voters' rights.

And in Harrisburg, hours after a judge approved a settlement in which Gov. Rendell agreed to an eight-day extension of the deadline for overseas military and civilian absentee ballots, Republicans and the father of a serviceman sued to extend the deadline to 30 days.

Finally, a spokeswoman for U.S. Rep. Curt Weldon (R., Pa.) said that the Delaware County congressman had uncovered evidence that prisoners had improperly voted by absentee ballot and that he vowed to sue.

With Philadelphia's history of voting scandals - notably, the 1994 effort by Democrats to steal a key state Senate race - and its importance to Pennsylvania's electoral equation, courts are bracing for hours of wrangling on Election Day.

Although simple cases about individual voters will be thrashed out in election courts in the 14 police district headquarters citywide, the main arena will be Central Election Court, in City Hall Room 643. It will be staffed by four judges instead of the usual two. They are all Democrats: Matt Carrafiello, Barbara Joseph, Sheila Woods-Skipper, and Kevin Dougherty, brother of John J. Dougherty Jr., leader of the electrical workers union and a top Democrat in the city.

Frederica A. Massiah-Jackson, Common Pleas Court president judge, predicted a busy day in Room 643, which will be equipped with computer jacks, fax machines and a VCR, in case litigants offer videos of election imbroglios.

She noted that a preelection conference on Wednesday drew a packed house: "There were not a lot of issues, but both [parties] had 10 lawyers."

Other counties in Pennsylvania will have election courts, too. And so will New Jersey, though the talk of challenges has been less intense there. Florida-style court fights could ensue after the votes are officially counted. That count is to begin by Friday. Then, suits could focus on anything from challenges of provisional ballots to allegations of voter intimidation.

Mark Aronchick, special election counsel to Gov. Rendell's administration, said one issue already resolved is what would trigger a recount. A new state law requires a recount in statewide races (including the presidential race) if the victory margin is less than half a percent. That law "will go a long way to limit the amount of litigation," Aronchick said. "Will it obviate litigation altogether? I doubt it."

Any postelection litigation would likely start in the state's 67 county courts and then proceed to Commonwealth Court, and perhaps all the way to the state Supreme Court, made up of four Republicans and three Democrats. Those two appeals courts have already handled a key case in this election, tossing Ralph Nader off the ballot.

Veteran election monitor Frederick L. Voigt said the parties were unduly worried about what might happen in vote-rich Philadelphia.

"Both are crazy; they're paranoid," said Voigt, who heads the Committee of Seventy, a nonpartisan group that tracks city elections.

He predicted a massive Democratic margin in the city, "so big none of this [concern about legal fights] is going to matter."

Since the 2000 election, Philadelphia has switched to electronic machines, devices without a paper trail that some critics say is needed to deter fraud.

The city and Montgomery County are among eight Pennsylvania counties using electronic machines. Bucks and Delaware Counties still use levers. Chester County uses Votamatic - the infamous chad-producers - but officials say they have never had problems.

Machines aside, new federal rules for voting, enacted after the Florida debacle of 2000, will also be at play on Tuesday.

Scholars say this year's version of hanging chads could be the new provisional ballots created under the federal Help America Vote Act because of the problems that emerged in Florida. There, thousands of voters were turned away because their names were improperly removed from rolls.

Richard Briffault, an election law expert at Columbia University, said that although the voting act was aimed at fixing a range of inequities, the new law also "may have added new problems."

Here's how provisional ballots work: If poll workers dispute a would-be voter's registration, that voter would then fill out a provisional ballot, on paper.

But it gets counted only later, if officials deem the vote legitimate - a process sure to draw lawyers if the race is tight.

Another new rule requires newly registered voters - a record 500,000 in Pennsylvania - to produce ID.

Nancy Baulis, a Democratic Party official in Delaware County, said she feared that Republicans might use the ID rule to unnerve voters.

She pointed to Chester, a city with a strong Republican organization and a heavily African American population that is likely to vote Democratic.

"We expect they are going to ask a lot of people for identification," Baulis said. "They are trying to intimidate people."

Nonsense, said Dominic Pileggi, a state senator and the Republican leader for Chester and nearby areas. "I don't know why someone would even mention that without any proof," he said.