Legal landslide: Courts may have unprecedented role in this election

By MARY DEIBEL, Scripps Howard News Service
October 23, 2004

It's dawning on Americans that they may go to sleep Election Night, Nov. 2, and not know for weeks who won the presidency.

Close polls, technical glitches, human error and legal challenges threaten a nightmare replay of the 2000 race.  
"We could have five or six Floridas including Florida itself, given the number of legal issues surfacing in one state or another so far in the 2004 race," says law professor Burt Neuborne, who spearheads voting reform efforts at New York University.

"If the issues are significant, the election could wind up in the Supreme Court, which broke the ice four years ago with Bush v. Gore," the 5-4 ruling that ended the 36-day Florida recount, effectively giving Florida's Electoral College votes and the 2000 presidential race to George W. Bush.

The justices sought to minimize Bush v. Gore as a one-way ticket not good for future trips. It was "a one-of-a-kind case," Justice Ruth Bader Ginsburg said later. "I doubt it will ever be cited as precedent by the court on anything."

That was wishful thinking to George Washington University constitutional scholar Jeffrey Rosen. He predicted early on that the ruling would prompt a flood of election-related lawsuits for local, state and federal office.

"Bush v. Gore exponentially increased the legalization of politics," Rosen told a recent gathering. "We might see weeks of uncertainty as a result" in the 2004 election cycle.

"Before Bush v. Gore, litigation wasn't a successful way to challenge an election; if legal challenges occurred, they were distant from an election's outcome and affected only future elections," says Vanderbilt law professor Suzanna Sherry. "Bush v. Gore opened the door to real-time lawsuits and arguments not previously available."

The campaigns aren't waiting. The Democratic National Committee will have 10,000 lawyers in battleground states Election Day, with six "SWAT squads" ready to deploy on orders from nominee John Kerry. The Florida team is headed by Steven Zack whose law partner, David Boies, argued Al Gore's case in Bush v. Gore.

Team Bush has similar plans with attorneys headed to 30,000 key precincts to challenge any voter whose registration seems suspect. The Republican National Committee is coordinating efforts through state parties, and Attorney General John Ashcroft has told all U.S. attorneys to stand by for fraud investigations.

Ted Olson, who argued Bush v. Gore for Bush before going on to become his solicitor general, says he expects lawsuits to be pressed "to the extent it turns out to be as close as the 2000 election." Olson hopes the vote will be so decisive that the outcome doesn't fall to armies of judges and lawyers, but "I'm standing by and ready to go ... if my clients want me."

Legal challenges center on:

- Provisional ballots. Under the Help America Vote Act of 2004, enacted to correct voting mechanics and prevent a replay of 2000, Congress told states to create provisional ballots so people whose names are mistakenly purged from voting rolls can vote and have it count if their registration is confirmed.

Trouble is, states aren't giving equal treatment to provisional votes: In Florida, where massive voter roll purges were a major issue four years ago, the state Supreme Court has ruled that provisional ballots won't count in the 2004 election unless they're cast in a voter's home polling place. In Michigan and Ohio, federal judges have ruled the votes count even if they are cast outside the voter's precinct.

- Absentee ballots. In California courts have upheld faxed ballots against charges they violate the secret-ballot guarantee. Other cases involve ballots mailed before or after courts resolved challenges by third-party candidates: Pennsylvania sent out ballots that included Ralph Nader's name before the Pennsylvania Supreme Court struck him from the ballot. Meantime, a computer glitch kept Sen. John Kerry's name from appearing on some absentee ballots sent out in Cincinnati.

- Electronic voting. Twenty-nine states including Florida will use touch-screen machines, but the effort has prompted lawsuits claiming the computerized devices aren't reliable and don't produce paper receipts for use in a possible recount. A New Jersey lawsuit asks that 8,000 of the machines be banned on Election Day. In Illinois, a federal judge refused to kill a lawsuit challenging Cook County's use of punch-card ballots, which can be 10 times more error-prone than optical scanner voting machines.

- Electoral College. Colorado voters are being asked to support Amendment 36, which would stop awarding the state's nine electoral votes by a winner-take-all system now used in 48 states. Instead, electors would be awarded in the same proportion as a presidential candidate's popular vote total. Maine and Nebraska apportion by who won a congressional district.

Should Amendment 36 win, lawsuits will proliferate because the U.S. Constitution specifies that a state's Electoral College delegation be chosen by a method specified by the state legislature, not by voters. Because the initiative takes effect with the 2004 presidential election, court challenges could further delay the outcome if the 2004 presidential election is close.

However, all legal challenges to state electors must be resolved by Dec. 7 this year to be safe from challenge in Congress, Sherry notes.

- Registration challenges. Wade Henderson, head of the umbrella Leadership Conference on Civil Rights, wants both parties to "cease and desist" aggressive polling-place challenges on grounds "we have worked too hard for too long ... to ensure that every American has a right to vote and have that vote counted."

- A Nevada judge refused to reopen registrations for Las Vegas-area residents who say their registrations may have been destroyed by a Republican-funded group.

- Florida Secretary of State Glenda Hood has been sued for ordering county officials to toss registration cards from voters who fail to check a box confirming they are U.S. citizens even if they sign the oath on the same form swearing they are citizens.

- New Mexico's politicians have faced off over poll challenges to 150,0000 newly registered voters this year. Four years ago Gore beat Bush in New Mexico by an even narrower margin than the 537 votes by which Bush officially prevailed in Florida in 2000.

Executive director Greg Graves of the New Mexico GOP sums up the mood there and elsewhere: "I hate for an election to be decided in a courtroom," he says, "but we're not going to be out-lawyered."