24 October 2004

Close election will lead to massive litigation

A close election in 2004 is likely to be far more heavily litigated than the 2000 election. The main factors:

  1. Karl Rove sues when losing

  2. More states are close than in 2000

  3. Unlike 2000, the Democrats aren't going to roll over

CNN.com - Preparing for post-election chaos by John W. Dean, Findlaw columnist and former counsel to President Nixon:

Look at the swirling, ugly currents at work ... a GOP history of going negative to win elections. There is Karl Rove's disposition to challenge close elections in post-election brawls. And there is a new unwillingness among Democrats to roll over.... Finally, look at the fact that a half-dozen lawsuits are in the works in the key states and more are being developed.

And it won't only be the Democrats heading to court. Indeed, in Florida in 2000, it was Bush who sued first -- while later falsely accusing Gore of starting the litigation.

[S]uing is a standard operating procedure for Karl Rove when he is losing (or has lost) a race....Make no mistake: If Bush loses, and it is very close, Rove will want to litigate as long as possible, going to the U.S. Supreme Court again if possible.

....

It may be days or weeks, if not months, before we know the final results of this presidential election. And given the Republican control of the government, if Karl Rove is on the losing side, it could be years: He will take every issue (if he is losing) to its ultimate appeal in every state he can.

Seattle PI: Prepare for litigation-filled post-election by Mary Deibel:

It's dawning on Americans that they may go to sleep Election Night, Nov. 2, and not know for weeks who won the presidency.

Close polls, technical glitches, human error and legal challenges threaten a nightmare replay of the 2000 race.

"We could have five or six Floridas including Florida itself, given the number of legal issues surfacing in one state or another so far in the 2004 race," says law professor Burt Neuborne, who spearheads voting reform efforts at New York University.

"If the issues are significant, the election could wind up in the Supreme Court, which broke the ice four years ago with Bush v. Gore," the 5-4 ruling that ended the 36-day Florida recount, effectively giving Florida's Electoral College votes and the 2000 presidential race to George W. Bush.

The justices sought to minimize Bush v. Gore as a one-way ticket not good for future trips. It was "a one-of-a-kind case," Justice Ruth Bader Ginsburg said later. "I doubt it will ever be cited as precedent by the court on anything."

That was wishful thinking to George Washington University constitutional scholar Jeffrey Rosen. He predicted early on that the ruling would prompt a flood of election-related lawsuits for local, state and federal office.

"Bush v. Gore exponentially increased the legalization of politics," Rosen told a recent gathering. "We might see weeks of uncertainty as a result" in the 2004 election cycle.

"Before Bush v. Gore, litigation wasn't a successful way to challenge an election; if legal challenges occurred, they were distant from an election's outcome and affected only future elections," says Vanderbilt law professor Suzanna Sherry. "Bush v. Gore opened the door to real-time lawsuits and arguments not previously available."

The campaigns aren't waiting. The Democratic National Committee will have 10,000 lawyers in battleground states Election Day, with six "SWAT squads" ready to deploy on orders from nominee John Kerry. The Florida team is headed by Steven Zack whose law partner, David Boies, argued Al Gore's case in Bush v. Gore.

Team Bush has similar plans with attorneys headed to 30,000 key precincts to challenge any voter whose registration seems suspect. The Republican National Committee is coordinating efforts through state parties, and Attorney General John Ashcroft has told all U.S. attorneys to stand by for fraud investigations.

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