Politics by other means

National | ELECTIONS: Wary Republican lawyers in California were prepared for recount lawsuits that didn't materialize, but the massive preparation shows how the era of the hanging chad has changed everything-and offers a preview of what to expect in 2004

Issue: "Terror on trial," Oct. 18, 2003

If it weren't for the landslide, there would have been a mud fight. That was the conclusion of Republican attorneys who flew into California from all over the country on Election Day, ready to defend against a flood of long-anticipated Democratic lawsuits. Armed with briefs and cell phones, the volunteer legal army camped out near courthouses and government offices across the state. In America's most liberal judicial circuit, they figured, it couldn't be too hard to find a judge willing to overrule the voters' verdict.

In the end, the numbers were simply too overwhelming. Gray Davis lost the recall question by some 600,000 votes, and Mr. Schwarzenegger nearly grabbed an outright majority despite the crowded field of replacement candidates. Double-digit victories, it turns out, are the best form of indemnification. That's small comfort to Republicans looking ahead to 2004, when important races all across the country are bound to be much closer. The lawsuits are coming, of that they're certain. They just don't know when. Or where. Or how many.

Even as the sun set on Election Day in California, the GOP legal team couldn't be sure they were off the hook. As a single-engine plane flew a "Join Arnold!" banner over the gridlocked freeways of downtown Los Angeles, a handful of lawyers gathered in a 37th-floor conference room to plot their strategy. Internal exit polls showed a big win for the Republicans, but that was no guarantee. With just two hours to go before the polls closed, the lawyers were still jittery.

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On a big plasma TV screen at one end of the room, a life-size Jesse Jackson was talking to Fox News about the thousands of "disenfranchised" students who didn't have a chance to vote at various University of California campuses. Coming from a man who had publicly threatened legal action, the D-word instantly captured everyone's attention.

"Have they filed? Is there a lawsuit?" asked an attorney with a cell phone pressed to his ear.

"Maybe we should go up to the superior court building," suggested another.

"I think they're closed at this point. We should probably sit tight at least until the polls close at 8:00."

With that, everyone loosened their ties, settled around a marble-topped conference table, and reached for the chicken sandwiches that had just been delivered. The ties didn't come off, though: In case of a last-minute dash to the courthouse, it was best to remain ready.

Robert O'Brien learned that lesson in 2002. The L.A. attorney had flown to southern New Mexico for an obscure congressional race that looked as if it might be tight enough for a legal challenge. Sure enough, at 3 p.m. on Election Day, the ACLU went to court to force longer voting hours in a few select, left-leaning precincts. Mr. O'Brien was armed with pleadings he'd drafted in advance. What he didn't have was a tie. He borrowed one from a colleague, went before a judge, and came out with a victory 90 minutes later.

Mr. O'Brien calls such legal maneuverings "fundamentally undemocratic. They're trying to take the decision out of the hands of voters and put it into the hands of friendly judges." In every state, he says, lawmakers have drafted election statutes designed to make the voting process as fair and accessible as possible.

"You have people who can vote by absentee ballot for weeks in advance, and then the polls are open for 12 to 14 hours on Election Day. But in the evening, when it appears the Democrat is not going to win, there's a last-ditch effort to go in and change polling hours.... It's fundamentally unfair to change the rules the day of the election."

The overall plan goes like this: Lawyers find a judge willing to say that voters in certain precincts-usually poor, minority precincts-were somehow disenfranchised and deserve another chance to vote. Activists then conduct a "knock-and-grab" effort, driving through the affected neighborhoods and dragging voters to the polls en masse. If they haven't registered or they're at the wrong polling place, it doesn't matter. They're urged to cast "provisional ballots," which then have to be verified and counted by hand in a process that can drag on for days.

It's an increasingly popular legal tactic, according to Thor Hearne, a St. Louis attorney who helped coordinate the GOP effort in California. In 2002, Democrats tried to extend voting hours at scattered precincts in New Mexico, New Jersey, and Arkansas. The 2000 election saw similar lawsuits in St. Louis, Kansas City, and Detroit. Everyone was sure California would join that list if the election turned out to be close.


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