By Jo Becker Washington Post Staff Writer Wednesday, October 20, 2004; Page A01
The ballots have yet to be counted, much less recounted. But attorneys for President Bush and John F. Kerry are already engaged in an intense legal battle for the presidency that could once again give the courts a say in who is declared the winner.
With less than two weeks to go before Election Day, an unprecedented number of lawsuits challenging basic election rules are pending in many of the battleground states. Both sides are in the final stages of training thousands of lawyers who will descend on the polls on Nov. 2 to watch for voter fraud or intimidation.
Each campaign has teams of attorneys ready in the event of a recount in one or more states. Both are hitting up donors to pay the legal tabs in case there is a disputed outcome that leaves the winner in doubt after the polls close.
Four years after the election between Bush and then-Vice President Al Gore deadlocked in Florida and produced a 36-day legal whirlwind ultimately decided by the U.S. Supreme Court, courtroom battles have become as routine a part of the campaign as rallies and television ads.
The result, experts say, is a race shaping up to be the most litigious in U.S. history.
"Bush v. Gore really let the genie out of the bottle," said Richard L. Hasen, an election law professor at Loyola Law School in Los Angeles. "Election law has become just another part of the political strategy of the parties."
Both sides say they have assembled what amounts to the largest virtual law firms in the country, relying on new volunteers as well as old hands who cut their teeth in the 2000 recount.
In Florida, the Kerry team is headed by Miami lawyer Steven Zack, whose partner, David Boies, argued Gore's case before the U.S. Supreme Court in 2000. Bush's Florida team is headed by Hayden Dempsey, who in 2000 worked as a lawyer for Florida Gov. Jeb Bush. Barry Richard, a Tallahassee lawyer who argued Bush's case before the Florida Supreme Court four years ago, is on tap to defend the president again if necessary.
Nationwide, the Democrats plan to have more than 10,000 lawyers standing by at the polls in battleground states to identify and address voting problems, particularly in the heavily minority precincts that saw a disproportionate number of ballots discarded in 2000. About 2,000 lawyers will be stationed in Florida alone, Democrats say.
With memories of Palm Beach County's infamous "butterfly ballot" still fresh, the legal team is scrutinizing ballot designs and has money set aside for conducting a public education campaign should a confusing ballot layout make that necessary.
Meanwhile, Democratic legal specialists are ready to wage recount battles in as many as five states at once. The Kerry campaign said it has raised more than $3 million for legal expenses.
"This has been one of the top, if not the top, priorities," said the Kerry campaign's general counsel, Marc Elias. "The legal team is satisfied that we are working for a candidate who will not shy away from a full engagement with the other side."
Republicans say they will have lawyers covering 30,000 precincts who will be prepared to challenge at the polls the eligibility of voters whose registrations seem suspect. The GOP has assigned its state party organizations to lead the effort.
In Florida, Dempsey said he is primarily concerned with ensuring that fraud and illegal voting by felons do not dilute the votes of those eligible to cast ballots. Republican sources say Dempsey will command a core team of about 265 lawyers, but he is not saying.
"I have no doubt that we will have more than enough," he said. "If we go into a recount situation, we are far better prepared to respond than before."
And although Bush-Cheney general counsel Tom Josefiak said in an interview that "this election needs to be decided by the voters, not a bunch of lawyers," in a fundraising letter he sent out over the weekend he implored donors to "make sure we have the resources to defend the outcome of this election if it comes under attack." The GOP would not say how much it has raised.
Not surprisingly, the legal efforts have provided both sides with political fodder.
Democrats point to a history of Republican "ballot integrity" initiatives and charge that the GOP is trying to intimidate black voters, who overwhelmingly support Kerry over Bush.
Republicans counter that the Democrats are cynically using the issue of minority-vote suppression to motivate their political base, pointing to a party handbook that advises lawyers to mount "preemptive strikes" to raise awareness about past voter intimidation efforts even in places where none currently exists.
Democrats have been particularly aggressive in the pre-Election Day legal skirmishing. By filing lawsuits now, Democrats say, they hope to avoid a recount altogether.
"We're going to protect our vote, and by doing that, we think we'll win," said Bob Bauer, the Democratic Party's national counsel for voter protection. Lawsuits filed by the party and Democratic interest groups in Florida and Ohio, another critical state, seek to prevent local election officials from rejecting thousands of incomplete registrations. The lawsuits contend that in both states, Republican election chiefs are requiring that forms contain information that is irrelevant to determining a voter's eligibility.
The parties are also fighting over "provisional ballots" given to people who show up at the polls and do not find their names on voter rolls. The Help America Vote Act passed by Congress in 2002 required that those ballots be counted if it can be determined after Election Day that the voters were eligible.
A number of Republican election chiefs have decided that those ballots should be counted only if they are cast in the voters' proper precincts. Democrats, who contend that provisional ballots will be used mainly by poor and minority voters who tend to move a lot, have sued in several states. Some federal courts have upheld those rules, but others, including one in Michigan yesterday, have sided with the Democrats in ruling that the provisional ballots should be counted regardless of where they are cast.
Both sides are keeping an eye on Colorado, where a ballot initiative could change the way that state's nine electoral votes are allocated, from a winner-take-all approach to one that divvies them up based on the popular vote. If the presidential election comes down to Colorado's electoral votes, they say, a legal battle to decide the presidency could once again land at the door of the U.S. Supreme Court.
The effort is not confined to the two parties. A coalition of civil rights groups have put together an "Election Protection" program to deploy 6,000 lawyers and law students to assist minority voters. And the Republican National Lawyers Association, which is not formally affiliated with the GOP, has trained about 1,000 lawyers to watch out for unlawful activities at the polls.
The fact that some of the rules are still in flux so close to the election has some experts concerned that poll workers could add to the chaos of Election Day by giving voters incorrect information.
Add that to all the lawyers who will be at the polls, said Doug Chapin, director of electionline.org, a group that tracks election reform, and "it's going to be impossible to get through Election Day without some kind of major problem somewhere."