Teams of lawyers prepare in case of a recount

Both parties hope to avoid the confusion Fla. had in 2000.

By Tina Moore and Suzette Parmley

Philadelphia Inquirer  06 October 2004 

Haunted by memories of hanging chads and butterfly ballots from four years ago in Florida, Democrats and Republicans are gathering cadres of lawyers to fight for every vote in case of a recount in Pennsylvania.

Changes in election law, a tight race in a swing state, and pending legislation that would make a statewide recount mandatory have partisan lawyers here preparing for battle.

Guy Ciarrocchi, executive director of the Bush campaign in Pennsylvania, said the campaign was holding weekly training sessions across the state for up to 1,000 lawyers. The training includes studying the various types of ballots and what counts as a vote and what doesn't, he said.

"We have a formidable force," said lawyer Lawrence Tabas, who is leading the fight for the Bush campaign. "We're ready for anything, more than ready."

The Kerry campaign expects to have about 1,000 lawyers in Pennsylvania on Election Day to deal with a possible recount. The Democratic Party has also recruited thousands of lawyers nationwide and formed five legal "SWAT" teams that can go anywhere in the country. The lawyers are all volunteering their time.

"If it happens, we are ready," said Harry Litman, Kerry's lead attorney in Pennsylvania.

The specter of a recount - which has been fueled by polls that show Bush and Kerry in a statistical tie in Pennsylvania - prodded House lawmakers to introduce an automatic recount bill on Monday. If legislators approve the bill, which has bipartisan support and the blessing of Gov. Rendell, a recount would be undertaken automatically if the margin of victory is 0.5 percent or less of the total votes cast.

About 5 million Pennsylvanians voted in the last presidential election. At that level of participation, a margin of 25,000 or less would trigger the recount under the proposed legislation.

"We don't have to go back to Florida to see that we have a local problem," said Rep. Babette Josephs (D., Phila.), sponsor of the bill. "We can look to a year ago in Pennsylvania."

Josephs cited a race for state Superior Court last year that was not decided until 10 weeks after the election. The victor won by 28 votes.

"The governor is keenly aware, not only knowing what happened in the past, but also what could be a very close election in November," said Kate Philips, a Rendell spokeswoman. "This is a safeguard that will ensure an error-free election result and take the politics out of a recount on a statewide level."

The legislation would apply to any statewide race, with the state - not the candidates - picking up the cost.

Mark Aronchick, an election law expert who was on the Al Gore team in Florida during the 2000 recount, said lawyers have long been involved in elections but that "the intensity of watching has changed."

"In Florida, many of the problems people complained about after Election Day could have been handled if they had been resolved in the run-up period," he said.

The butterfly ballot design, for instance, ended up being confusing to many older Gore voters who mistakenly cast their votes for Pat Buchanan. Closer scrutiny before the election might have alleviated that problem, he said.

That's why both camps are examining everything from ballot designs and layouts to voting machines and the distribution of absentee ballot applications.

Litman said his team recently challenged an absentee ballot in one county, which he refused to identify. "We thought it was confusing," he said. He said the challenge had not been taken to court and was being worked out quietly with the county elections board.

In the case of a recount, the absentee, alternative, and provisional ballots will all come under scrutiny. The amount of work in recounting the ballots in the state's 67 counties and more than 9,500 polling places would require a huge number of volunteers.

"It's just enormously labor intensive, and you can never have enough people," Ciarrocchi said. "You can potentially have 30,000 or 40,000 batches of votes in different types of machines, or bunches of punch cards in places like Chester County. And then, literally, you could have hundreds of thousands of absentee ballots and provisional ballots."

Changes in election laws since 2000 make the need for lawyers even more vital.

This year, voters who are casting a ballot for the first time in a precinct or for the first time ever will need valid identification. Those who do not have any, or who do not appear on the voting rolls, can cast a provisional ballot that acts as a place-holder for a vote.

The identification requirement has some Democratic lawyers concerned that voters who are registered could be turned away at the polls. Democrats are training precinct captains to detect and report suspicious activity to the lawyers in each county.

The AFL-CIO, which has endorsed Kerry for president, is also recruiting lawyers to work in the state as part of a program called "My Vote, My Right," said Philadelphia labor lawyer Theodore N. Lieverman.

"The lesson of Florida is that you have to fight for every vote," he said.

The national Kerry campaign and the Democratic National Committee announced election protection efforts yesterday. The campaign plans to have an election protection advisory board to put teams of lawyers in all battleground states to ensure the integrity of the vote and that every vote is counted.

Once the ballots are cast on Nov. 2, lawyers for both sides who are volunteering will be prepared to handle the recount.

Under current law, candidates would have to file challenges in individual counties to contest election results and call for a recount. The procedure can be costly for candidates. A candidate who wants a statewide recount would have to pay $50 for each of nearly 9,500 precincts in the state, which adds up to nearly $500,000 - not including lawyers' fees.

"If you have a substantial number of provisional ballots plus absentee ballots, you may find yourself immediately after Election Day recounting all of them," Lieverman said. "I think everybody would like to have their candidate win by a large enough majority so we don't have to get there."

Litman, Kerry's top attorney in Pennsylvania, said it was unlikely the state would experience the "remarkable series of events" that led up to Florida's election debacle four years ago, which was "the equivalent of a solar eclipse."

But Ciarrocchi isn't ruling it out, given the resources the Bush campaign has devoted to a potential recount effort. "And the polls show so far, to the President and his advisers, and to the campaign team here, that there is at least a 50-50 chance," he said.