Both Parties Prepare to Litigate Election

Taking its cue from Al Gore–the first losing candidate to contest a U.S. presidential election since 1876–the presidential campaign of Sen. John Kerry (D.-Mass.) has announced its intentions to fight out the election’s results in state and federal courts if President Bush wins by only a small margin.

Both parties have geared up for a major legal contest of this year’s election that could drag out election results for weeks, just like in 2000. The only way to avoid it may be a decisive victory for one side or the other.

Michael Whouley of the Democratic National Committee told HUMAN EVENTS that his party has 10,000 lawyers, some of whom are currently filing pre-election procedural challenges, and most of whom will watch for problems on Election Day itself. They will also be prepared for post-election litigation in the event of a close election, he said.

Electoral College Tie

“We’re going to have a very robust legal operation,” said Whouley. “We’re going to have lawyers in our target precincts, and we’re going to make sure we deal with any issues that arise in those targeted precincts.”

Republicans, meanwhile, have organized their legal operations at the state level, said Republican National Committee spokeswoman Christine Iverson.

Less than two weeks out from the election, the race remains extraordinarily close in at least seven states–Florida, Ohio, Pennsylvania, Minnesota, Iowa, Wisconsin, and New Mexico. The margins of victory in any of these could be thin enough to be overturned through recounts or legal action.

Moreover, there are realistic scenarios that would result in an Electoral College tie between Bush and Kerry, throwing the election to the House of Representatives for the first time since 1824. Such a result would lead to a Bush victory–at least 26 state delegations out of 50 would give him their votes. But, in the meantime, an Electoral College deadlock could cause an explosion of state-by-state legal wrangling. Democrat lawyers would have a chance to reverse the election by overturning the results in any of several states.

Kerry’s legal team is already fighting to keep independent candidate Ralph Nader’s name off the ballot in several states (including Pennsylvania), to bar various states’ new touch-screen voting machines, and to block requirements that voters show ID in others, including New Mexico.

If the results are close in Ohio and Michigan, the race could hang on a court ruling over the validity of thousands of provisional ballots. These ballots, which are cast by voters who do not appear on the rolls, will be sealed in envelopes and not counted unless the voter’s eligibility can later be verified.

Federal judges have ruled in Ohio and Michigan that voters who show up at the wrong precinct in their county can cast provisional ballots instead of going to the correct precinct and voting there. (In Florida, on the other hand, the state supreme court ruled that provisional ballots must be cast in the correct precinct to be counted.) If the Ohio and Michigan decisions stand, not only will it facilitate voting fraud, but legitimate voters also could end up voting in the wrong place for or against a congressman who does not represent them. The Ohio ruling is under an expedited appeal to the 6th U.S. Circuit Court of Appeals, and the final ruling, unless it comes next week, could determine the outcome of the election some time after November 2.

In Ohio, recent registration efforts by left-wing groups have caused a bevy of fraudulent voter registrations, as elections officials in three counties learned when 27,000 voter cards were returned to them in the mail as undeliverable. One Ohio man was arrested for allegedly forging registrations for Mary Poppins, Michael Jordan, and George Foreman. Given the likely presence of many fraudulent names on the Ohio voter rolls, Republicans could find themselves challenging provisional ballots and the eligibility of some voters and if Bush were to lose the state narrowly.

Democratic Handbook

A Democratic handbook recently obtained by reporters urges party officials to voice complaints about voter intimidation in advance, even if no such intimidation occurs. “If no signs of intimidation techniques have emerged yet,” the manual advises, “launch a pre-emptive strike.”

True to that playbook, Kerry and his running mate, Sen. John Edwards (D.-N.C.), have been repeating for weeks the baseless assertion that as many as a million African American voters were disenfranchised in the 2000 election.

Both presidential campaigns have also assembled legal teams in all of Florida’s 67 counties. The Bush team is headed up by Barry Richard, who argued part of Bush v. Gore before the Supreme Court in 2000. The Kerry team is chaired by Stephen Zack, who litigated on Gore’s behalf and is a law partner of David Boies, who argued Gore’s side in Bush v. Gore.


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