Kerry Building Legal Network for Vote Fights
By DAVID M. HALBFINGER

Published: July 19, 2004

Mindful of the election problems in Florida four years ago, aides to Senator John Kerry, the presumptive Democratic presidential nominee, say his campaign is putting together a far more intricate set of legal safeguards than any presidential candidate before him to monitor the election.

Aides to Mr. Kerry say the campaign is taking the unusual step of setting up a nationwide legal network under its own umbrella, rather than relying, as in the past, on lawyers associated with state Democratic parties. The aides said they were recruiting people based on their skills as litigators and election lawyers, rather than rewarding political connections or big donors.

Lawyers for the campaign are gathering intelligence and preparing litigation over the ballot machines being used and the rules concerning how voters will be registered or their votes disqualified. In some cases, the lawyers are compiling dossiers on the people involved and their track records on enforcing voting rights. The disputed 2000 presidential election remains a fresh wound for Democrats, and Mr. Kerry has been referring to it on the stump while assuring his audiences that he will not let this year's election be a repeat of the 2000 vote.

"A million African-Americans disenfranchised in the last election," he said at the N.A.A.C.P. convention in Philadelphia on Thursday. "Well, we're not just going to sit there and wait for it to happen. On Election Day in your cities, my campaign will provide teams of election observers and lawyers to monitor elections, and we will enforce the law."

The Kerry campaign's legal efforts are hardly occurring in a vacuum.

The Bush-Cheney campaign says it will have party lawyers in every state, covering 30,000 precincts. An affiliated group, the Republican National Lawyers Association, held a two-day training session in Milwaukee over the weekend on "how to promote ballot access to all qualified voters," according to the group's Web site.

Lawyers for nonpartisan advocacy groups conducting voter registration drives are also working behind the scenes and in court to ensure that their new registrants make it onto the rolls and that their ballots are counted.

But it is the campaign of Mr. Kerry that appears to be doing the most to apply lessons from the Florida recount and that is adopting the more fiercely partisan posture in the early going.

Its plans include setting up SWAT teams of specially trained lawyers, spokesmen and political experts to swoop into any state where a recount could be needed.

"The U.S. has had a policy of being able to fight two regional conflicts and still defend the homeland," said Marc E. Elias, the Kerry campaign's general counsel. "We want to be able to fight five statewide recounts and still have resources available to the campaign."

The lessons of Florida include fairly mundane ones. Democratic lawyers said, for example, that they had such a hard time obtaining office space in Tallahassee, presumably because landlords in the state capital feared antagonizing Gov. Jeb Bush, a Republican and brother of President Bush.

This time, Kerry aides say, they are recruiting not only specialists in election law who work in small law firms or alone, but also litigators at large firms in every state who have the resources and office space to support a long-term, large-scale and pro bono recount operation.

"We don't want a situation where we wake up the next day and are scrambling to think of what our legal team looks like," Mr. Elias said.

The Kerry campaign has already enlisted lead lawyers in all 50 states, and those lawyers are recruiting lawyers at the county and the precinct level.

"It's our intention to have lawyers in one fashion or another covering all of Iowa's 99 counties," said Brent Appel, the Kerry lawyer in Des Moines.

Kerry aides say the campaign has set up a national steering committee with task forces tackling different issues: one on ballot machines, another on voter education, and a third on absentee, early, and military voting, to name a few..

At the Democratic convention next week in Boston, they say, any lawyers interested in volunteering will be offered training. And dozens of the lawyers already recruited by the Kerry organization will hold two days of intensive meetings to finalize strategy, tactics and assignments.

Democrats say they learned from the Florida vote, and from the Supreme Court rulings that arose from it, that the most important legal battles are those fought before Election Day, over how election laws are to be carried out, who is allowed to register and who will be allowed to vote.

Robert Bauer, a partner of Mr. Elias's who is overseeing the Kerry legal effort, took a historical view of what he called "warfare over the electoral franchise." The first phase, he said, concerned who was entitled to vote and included the all-white primary, literacy tests and poll taxes that were eliminated in the mid-20th century. The second phase was fought largely over the dilution of the vote along racial lines and used the Voting Rights Act, he said.

"Now, we're into a third phase, that was exemplified by Bush-Gore, of franchise restrictions that are accomplished through manipulations of the elections administration process or of the law," Mr. Bauer said. "It's about people who somehow can't register, or can't vote, or their vote isn't counted, and it's done not frontally, but through legal manipulations."

Those can include the seemingly picayune. In Minnesota, a lawyer for the Kerry campaign is protesting a ruling by the secretary of state — Mary Kiffmeyer, a Republican — that every registrant must provide identification that matches "with certainty" a state database containing registered voters' names, birthdates and driver's license numbers or partial Social Security numbers. "It doesn't take into account a transposition of a number by a data-entry person," said Jim Rubenstein, the Kerry lawyer in Minneapolis. In an interview, Ms. Kiffmeyer said local officials would have the discretion to overlook an obvious typographical error.

Republicans are not trumpeting their efforts nearly as much, though Benjamin Ginsberg, the national counsel for the Bush-Cheney campaign, said he expected lawyers to cover 30,000 precincts on Election Day.

He noted that the chairman of the Republican National Committee, Ed Gillespie, had been rebuffed by his Democratic counterpart when he proposed recently that the two parties agree on a list of pivotal precincts and send bipartisan pairs of lawyers to monitor them. "Obviously the goal in this is to have every valid vote counted," Mr. Ginsberg said, "and to not allow the sort of rhetorical overkill, on either intimidation or fraud, to be used in a tainted fashion to interfere with the get-out-the-vote operation."

Mr. Bauer of the Kerry campaign said: "There's not much interest in depending on Republican agents to police the polls."

Apart from the two campaigns, a host of advocacy and civil-rights groups, which often act in parallel with Democrats when it comes to expanding ballot access, are stepping up their own election-law efforts this year.

America's Families United, a racial-justice advocacy group that is registering thousands of people, has set up a "voter protection project" to ensure that its new registrants make it onto the rolls, by comparing each new voter list to its own list. Penda D. Hair, the project director, said her goal was to recruit 6,000 lawyers in 20 states who could challenge registrars when they reject applications improperly.

In South Dakota, Native American officials are suing for clarification of new election rules. In 2002, they say, a dramatic increase in voting by tribal members — who often lack driver's licenses or other accepted forms of picture identification — made the difference in the Senate race that Tim Johnson won by fewer than 600 votes. The state has since revised its identification rules, and in the special Congressional election there last month, Native Americans reported widespread discrepancies in the application of the rules, said Jacqueline Johnson, executive director of the National Congress of American Indians.

In some places, Ms. Johnson said, signs went up at polling places warning, "No I.D., no vote," even though the law allows voters to sign an affidavit if they do not have valid identification. Elsewhere, she said, people living as far as 60 miles from polling places were sent home to get identification, and partisan poll watchers sometimes insisted that voters instead fill out provisional ballots. Ms. Johnson said such ballots were more likely to be disqualified on challenges.

The Leadership Conference on Civil Rights, meanwhile, has made a Freedom of Information Act request to review the Justice Department's communications to local and state election authorities during this election cycle. "We're being proactive, trying to head off any problems at the pass," said Nancy Zirkin, the conference's deputy director.