After the election, the lawyers

Both parties marshal forces, foreseeing suits over outcome

Ohio could be center of storm

Election 2004

9 days until Election Day, Tuesday, Nov. 2

October 24, 2004|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

CINCINNATI - When Phyllis G. Bossin volunteered this year to help Democrat John Kerry make inroads into this stretch of Ohio known for its staunch conservative leanings, she expected to be put to work planting yard signs and knocking on doors.

But Bossin brought something more valuable than shoe leather to the table in an election that could turn out to be the most litigious in history - legal expertise.

The well-established family practice attorney is homing in on the fine points of voting law as part of an unprecedented marshaling of legal forces by both political parties in anticipation of a possible post-Election Day contest that could rival the legal debacle in Florida four years ago. That dispute ended with the U.S. Supreme Court swinging the election to George W. Bush.

"I think the year 2000 changed everything for politics and for elections, and people really learned their lessons from that," said Bossin, the Kerry campaign's regional counsel for southwestern Ohio. "Because of the problems with the 2000 election, I think people wanted to be proactive instead of reactive."

For weeks, lawyers across the country have been wrangling over issues concerning who can vote in the Nov. 2 election and how it will be run, a task that has become especially crucial as polls continue to indicate a near dead heat between Kerry and Bush.

Some observers think Ohio, a swing state with 20 electoral votes, could become the perfect storm of this year's election, a state with old-fashioned balloting that could again yield hanging chads, and newfangled battles over provisional voters, a species given new prominence in 2002 reform legislation meant to cure the ailments of Florida.

Courts in Ohio and four other states have heard lawsuits challenging whether people who show up at the wrong precinct can vote and have issued varying rulings.

Prosecutors in several states are investigating possible fraud in voter-registration efforts. Lawsuits in Florida challenge last-minute voter registrations that were deemed invalid and electronic voting machines with no paper trail.

The legal efforts are aimed at preventing a possible repeat of the confusion that marred the 2000 presidential election and the court battles that followed.

They could just be a warm-up. Many observers say they expect another election night with no clear winner, followed by a legal fight that could decide the outcome.

`Tied up in courts'

"If the election is close, it's going to be tied up in the courts," said Henry E. Brady, a public policy and political science professor at the University of California, Berkeley who has closely studied the 2000 election. "People now know, in a way they didn't in Florida, where a lot of the problems are buried."

Both parties are bracing for that possibility.

Democrats have recruited as many as 10,000 lawyers who will be dispatched to help monitor the election in swing states, and the Kerry campaign has said that it has raised $3 million to cover the costs of any recount fights.

The Republicans have not disclosed the size of their legal fund, but the GOP also has thousands of lawyers heading to battleground states.

The potential for litigation exists on a number of fronts. A report by the nonpartisan research group Electionline.org warned last week that many of the ingredients for trouble that existed in 2000 remain and are compounded, in some instances, by the federal law passed two years later that was intended to bring greater uniformity to locally run elections.

New electronic voting technology is under scrutiny for possible computer hacking and for not providing a paper record of voters' choices, the report noted. More states now require voters to present identification at the polls, setting up possible clashes at precincts. Also, most states have no provision for automatically recounting votes in a close election.

The report also cautioned that "provisional ballots" could become this year's "hanging chads" that throw election results into chaos.

Language in the 2002 Help America Vote Act required that people who show up to vote but are not listed on the voter registration rolls be required to cast "provisional ballots" that would be counted only if their voter registration could be verified.

Adding to the potential problem is the possibility of huge crowds at the polls, in part because of aggressive registration drives by both parties and special interest groups. Turnout is expected to set records in the small number of battleground states that are expected to determine the next president, likely by the narrowest of margins, including Michigan, Pennsylvania, Wisconsin, Iowa and, again, Florida.

Ohio is where a number of observers think most potential election problems could converge.

700,000 new voters

The state, which Bush won in 2000 by 165,019 votes, has an estimated 700,000 newly registered voters.

Ohio is embroiled in lawsuits over voter registration forms and provisional ballots.

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