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Legacy Content / RULES OF THE GAME

Camps Lawyer Up For High-Pressure Election Day

Record Registration Meets Unprecedented Legal Blitz In Battle To Determine Which Votes Count

October 27, 2008

As the election enters its home stretch, lawyers and activists are organizing in unprecedented numbers to field questions from voters, watch for problems at the polls and brush up for a possible day in court.

This could prove both a blessing and a curse in an election that's been defined by increasingly bitter battles over who's really eligible to vote.

On the plus side, the growing cottage industry of voter protection advocates can guide voters through the often tangled process of finding the right polling place, bringing the right ID, and coping with long lines or voting machine snafus.

 

Increasingly, election litigation is becoming inevitable.

Given the record numbers of Americans who've signed up to cast ballots for the first time this year, those voters could use all the help they can get. Election Protection, a coalition of more than 100 national public interest and civil rights groups run by the Lawyers' Committee for Civil Rights Under Law, is already fielding up to 4,000 calls per day on its 1-866-OUR-VOTE hot line.

The downside is that too much oversight, particularly from law enforcement officials, could intimidate voters and increase pressure on already overextended election workers. The worst-case scenario, of course, is a contested election à la Florida 2000 that throws the outcome into the hands of the federal courts.

At this stage, poll numbers appear to point away from a squeaker election, lessening the threat of a make-or-break legal challenge. Still, some experts see recent GOP attacks on the community activist group ACORN as a strategy to lay the groundwork for a court fight. Republican nominee John McCain's warnings of widespread voter fraud by ACORN have been coupled with multiple lawsuits by GOP state officials challenging voter rolls.

"Playing up ACORN, playing up the potential for voter fraud by the McCain campaign and by the [Republican National Committee], lays the groundwork for an election challenge in the unlikely event that the election [is] very close," said Richard L. Hasen, a professor at Loyola Law School in Los Angeles.

On the flip side, Democratic nominee Barack Obama has assembled the party's largest-ever team of lawyers. The campaign has reportedly put together a multimillion-dollar program that deploys thousands of lawyers to oversee the election at the state and local level.

In Florida alone, state Democratic Party counsel Charles H. Lichtman has marshaled a team of 5,000 lawyers, law students and paralegals to work inside and outside polling stations on Election Day. The goal is not to prepare for litigation, Lichtman said, but to help voters navigate the practical mechanics of voting, from machines to IDs, polling places and questions about voter lists.

"The American public does not want to see litigation related to elections," said Lichtman, a partner with the Florida law firm of Berger Singerman, who ran Al Gore's recount operation for Broward County in 2000. "And by and large, history has shown that it's not hugely successful in any event."

Increasingly, though, election litigation is becoming inevitable. As Hasen noted in a recent FindLaw commentary, the number of election cases has gone up from an average of 96 before 2000 to about 230 cases a year since then.

The use of provisional ballots may also boost the risk of a legal tussle. The Help America Vote Act of 2002 requires election officials to offer provisional ballots to voters whose registration is in question. The surge in new voters, coupled with voter roll problems and controversies, make such questions more likely this year. But rules for counting provisional ballots vary from state to state, and their use tends to encourage lawsuits. "If you have provisional ballots, it increases the margin of litigation," said Daniel Tokaji, a law professor at Ohio State University.

Both Democrats and civil rights advocates also warn that federal oversight may go too far. Obama lawyer Bob Bauer has written repeatedly to Attorney General Michael Mukasey, most recently to express concern that GOP pressure might improperly involve the Justice Department in the election. House Minority Leader John Boehner, R-Ohio, joined with other GOP members of the Ohio congressional delegation in an Oct. 20 letter to asking Mukasey to intervene in a dispute over the accuracy of state voter lists. President Bush also weighed in on Oct. 24 at Boehner's request, asking Mukasey to look into the matter.

The FBI has reportedly launched an investigation into voter fraud allegations at ACORN -- prompting complaints from Democrats that the probe itself was improperly leaked. Bauer recently told reporters in a conference call that "we have had clear-cut attempts by the part of Republican elected officials to manipulate and pressure the Justice Department."

After a meeting with Mukasey earlier this year, civil rights leaders similarly discouraged the attorney general from following through on plans to send federal prosecutors to monitor the polls, warning that it could intimidate voters.

At their best, voter protection efforts educate voters, trouble-shoot problems and help overburdened poll workers keep the lines moving on Election Day. The trick for both lawyers and advocates will be to constructively help voters without disrupting the election. Noted Doug Chapin, director of Electionline.org, in a recent briefing with reporters: "Any attention to the process is a good thing -- as long as people aren't getting in the way of the process."

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