Cover Story

Post-party blues

With final polls showing an evenly split electorate, both parties brace for a rash of post-election lawsuits. Barring a last-minute blowout, the 2004 election could be decided in court-and not the court of public opinion

Issue: "Post-party election blues?," Nov. 6, 2004

Four years ago, a crowd of 20,000 or so George W. Bush supporters gathered outside the Texas state Capitol on a cold November night for what they hoped would be a victory celebration. While Mr. Bush enjoyed a dinner of parmesan-crusted chicken at the Four Seasons Hotel, workers double-checked the 1,000 cannons that were supposed to deliver 20 minutes of celebratory fireworks sometime around midnight.

The show never happened, of course, and Mr. Bush apparently learned his lesson: With last-minute polls almost dead even, his campaign planned no pyrotechnics this year. That's not to say Election Night will be quiet. It's just that both campaigns expect the fireworks to come in places like Columbus or Carson City, St. Paul or Santa Fe, Denver or Des Moines-anywhere, in fact, that the popular vote is closer than a point or two.

"It's not good enough for us just to win this election," says Thor Hearne, national counsel for the Bush-Cheney campaign. "We have to overperform. We have to win the election by 2 to 3 percentage points to get a fraud-proof margin of victory."

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In the final weeks before Nov. 2, even as the parties were cranking up their get-out-the-vote efforts, they were simultaneously cranking up their legal efforts in swing states around the country. Democratic Chairman Terry McAuliffe bragged he had 10,000 lawyers ready to challenge any questionable results, and Republicans scrambled to ensure an effective response. Experts worried that legal maneuvering might become a permanent part of the political process, and pundits began talking about Election Month rather than Election Day.

Indeed, the lawsuits started coming long before the first ballot was cast. The countless squabbles leading up to Election Day foreshadow the full-scale legal war that could break out in case of a close contest (see page 22). In an Oct. 20 conference call with reporters, GOP Chairman Marc Racicot said the Democrats and their affiliated interest groups had already filed some 27 lawsuits in nine states "in an effort to try and paralyze the system. . . . They have advanced in our judgment a willingness to say virtually anything to get elected and now we believe that there's ample evidence to suggest and to prove that they're willing to do anything, including bringing chaos to this election, in order to ultimately bring about an opportunity for them to be successful."

Republicans, to be sure, have initiated some legal actions of their own. In Ohio, perhaps the most hotly contested race in the country, the GOP challenged some 35,000 names on the voter rolls and recruited poll-watchers to keep an eye out for ineligible voters at 8,000 voting stations around the state on Nov. 2. Though Democrats cried voter intimidation, even the Columbus Dispatch pointed out that Ohio had some 120,000 duplicate names on its voter registration lists, along with thousands of other ineligible voters including a murder victim and two suspected terrorists.

"We fully intend to have our side represented, to make sure we have a voice in the decision," says Mr. Hearne of the Republican legal strategy. "We'll respond through every appropriate channel necessary. . . . But that's not the same as saying we're out there trying to change the system."

Indeed, GOP legal efforts like the one in Ohio are fraught with dangers for the party. Republican poll-watchers checking voter registration cards could make for long lines on Election Day, and that would give Democratic lawyers an excuse to challenge the results in court on the basis that Republicans intimidated voters and suppressed turnout.

Such charges of voter intimidation promise to be some of the most fertile grounds for Democratic lawsuits. Democrats claim that their base-poor voters, black voters, and recent immigrants-is easily turned away by long lines, close scrutiny, or a sense of uncertainty at the polls. Lawsuits often include a request to extend voting hours in inner-city precincts as a means of redressing the alleged intimidation. Democratic lawyers may also sue for extended hours in case of "confusing" ballots or technical glitches such as power outages that shut down electronic voting machines.

Though Democrats have had success with such lawsuits in the past, an even more potent weapon this year may be lawsuits over so-called provisional ballots. Thanks to the federal Help America Vote Act passed in the wake of the 2000 election, voters who forget their ID or show up at the wrong polling place may be able to cast special ballots that will be set aside for later verification and counting. Much like the notorious "hanging chads" of the last election, individual challenges to provisional ballots could tie the election up for weeks. Indeed, Ohio law stipulates that provisional ballots won't even be examined until 11 days after the election.


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