Historians will probably debate the consequences of the 2000 Presidential election forever. But one legacy of that contest is already apparent: Lawyers have become a far more important part of the campaign process. This year, both Democrats and Republicans have retained hundreds of attorneys across the country. They are already fighting in swing states over the rules on voter registration, poll identification, and provisional voting — and will be ready to race into court on Nov. 2 should there be any electoral irregularities.
This year’s legal brinksmanship is driven in large part by the closeness of the race and ambiguities in federal election reforms passed in the wake of the 2000 mess. But that doesn’t necessarily mean that it’s a one-time event. Sadly, there’s reason to believe that a permanent change is instead taking place in American politics. Lawyers will no longer be merely marginal players who counsel candidates on arcane campaign finance laws, but key strategic advisers who try to change the rules of the electoral battlefield to favor their clients.
The inescapable truth is that candidates who are aggressively willing to litigate every phase of the voting process — from absentee balloting before election day to the recounts afterwards — can gain a clear edge over opponents. Political law experts interviewed by BusinessWeek estimated this advantage to be as high as one full percentage point. While that’s not enough to lock up most races, it will tilt a lot more of them than you’d guess.
As a result, the legal genie has escaped the bottle. There will be much more pressure, in tight races, for politicians at all levels of government to exploit the tactical advantages that can be supplied by aggressive lawyers. In the wake of the Florida recount battle, “it is sort of accepted that people will bring a lawsuit after a close election,” says Kenneth A. Gross, a political law partner at Skadden, Arps, Slate, Meagher & Flom LLP. “In the past, it was sort of taboo, like you were a sore loser.”
The lawyering of American elections could bring vast changes to the political process — just as the arrival of increased litigation permanently changed the health-care system and the workplace. Despite recent reforms, American elections still have an overall error rate of about 1% to 2%, according to Samuel Issacharoff, a specialist in campaign law at Columbia Law School. So if armies of attorneys start scrutinizing close races in search of problems, they’ll find them.