NEW YORK, Oct. 10 2004 LAWFUEL – Law news, legal, attorney, law firm news The election is still weeks away, the
votes aren’t even close to being counted and already lawsuits are in the
courts, tales of trashed ballots are in the news and allegations about dirty
tricks are in the air. In the October 18 Newsweek cover story, “Will Your Vote
Be Counted?” (on newsstands Monday, October 11), Newsweek examines the
potential glitches, legal fights and even terror scares that are hovering over
this Election Day. Awful as it is to contemplate, we may be headed for a
repeat of the 2000 election mess-the millions of uncounted votes, the
shameless legal maneuvering, the prospect of winners’ being decided by judges.
And this time, there are worries about possible terror strikes around Election
Day. “These are concerns,” says DeForest Soaries Jr., chairman of the U.S.
Election Assistance Commission.
Soaries recently returned from Florida, where he found that hundreds of
polling places had been destroyed by the hurricanes, a problem that could lead
to mass confusion next month. “Now,” he tells Newsweek, Florida (and every
other state) has to “prepare for a hurricane called Election Day.”
This time around, nothing is going to be overlooked. Even if the
presidential race is won by a convincing margin, there is now a vast new
industry of lawyers, consultants and interest groups with a stake in fighting
it out, whether or not there’s something to fight about. “Election Day is no
longer the light at the end of the tunnel,” says Doug Chapin, of
http:www.electionline.org. “It’s the light of an oncoming train.” But that
doesn’t trouble Soaries. “I don’t feel pressure to finish so Katie Couric will
be able to declare the winner the next morning,” he says. “There are times
when it takes longer, and that’s what counts are for. It proves our system
works.”
Newsweek lists the scenarios that pose potential problems for Election
Day:
* THE TECH FACTOR: This year, about 30 percent of voters will face newer,
electronic systems. Yet the leek touchscreens are far from glitch-free
and they have no paper trail if a recount is needed. If Bush vs. Kerry
comes down to a few hundred votes in Florida, or parts of Ohio-both
states that use touchscreen machines without paper backups-there’s no
way to put the results under the microscope. Nevada is the only state
that currently has paper backups on all its machines. Voters can read
the paper ballot through a glass window. When they hit the screen to
approve it, the paper drops into a sealed box.
* THE FIRST-TIMERS: A much bigger problem is how to handle the torrent of
people registering to vote for the first time. So far, at least a
million new voters have signed up. New Mexico has added more than
100,000 new applications; Clark County, Nev., alone is up 190,000.
Washington state is swamped with 300,000 applications. Officials are
frantically trying to get the new names on the mailing lists that tell
them where to vote, and on the rolls themselves, so they won’t be
turned away when they get there. The federal government requires states
to give voters provisional ballots if their names aren’t on the list.
The ballots are supposed to be sorted out and counted in the hours and
days after the election. Trouble is, the law is worded so vaguely that
no one can say for sure what it means.
* THE EARLY VOTES: There are millions of absentee ballots, early ballots,
military ballots and overseas ballots pouring in from every corner of
the planet. To lock in their votes-and to skirt the perils of
provisional ballots-both sides are pushing hard to get as many of their
supporters as possible to vote early. Every one of these ballots will
have to be checked, counted and certified, usually by hand. So do all
the ballots from the 500,000 soldiers stationed overseas, not to
mention millions of votes from American civilians living abroad.
* HERE COME THE LAWYERS: On Election Day, both parties will send
thousands of legal observers to battleground states, ready to start
swinging. In Florida alone, Democrats and Republicans may dispatch as
many as 2,000 lawyers each. If a polling place is held open past
closing time, the attorneys will file instant motions with the courts
to get them closed down. That is, unless their guy is losing. Then
they’ll argue the need to let everyone in the door. Lawyers around the
country have already drawn up fill-in-the-box pleadings to put before
judges on every imaginable issue. In the most hotly contested
precincts, expect to see lawyers from both parties at every polling
place. On top of that, the Democrats will have five “SWAT” teams of
famous attorneys on standby, along with a fleet of private planes,
ready to jet them off to electoral trouble spots on a moment’s notice.
A recent ruling allowed the presidential candidates to use campaign
compliance funds for legal challenges.
In a separate story, Washington Bureau Chief Daniel Klaidman looks at what
would happen if there were a terrorist attack on Election Day. By tradition
and law, U.S. elections have always been administered at the state and local
levels. Right now, in the event of an attack on Nov. 2, the federal government
would not have the power to step in and postpone voting. Only states, counties
or even cities could freeze balloting.
The question is whether the federal government can play a more central
role without provoking age-old fears of martial law. Under the Constitution,
Congress does have authority to regulate national elections, including setting
dates. Some have argued that Congress could establish a commission that would
have the authority to reschedule federal elections in the event of a national
emergency. But lawyers question whether such power could be delegated to a
panel of individuals, Klaidman reports.
