Lawyers rev up for post-election court battles

In Md., both parties muster legal forces

Maryland Votes 2006

October 31, 2006|By Gadi Dechter | Gadi Dechter,Sun reporter


A Page 1A article yesterday might have left a misimpression about the views of Tova Wang, an elections scholar at the nonpartisan Century Foundation, on elections litigation.

Wang's full comments were: "In a sense, within reason, it's not a bad thing, because you're trying to insure the integrity of the final vote total. But it can undermine confidence in the electoral system, the more time it takes."

Speaking about whether either party benefits more from such litigation, Wang said: "I don't think anybody benefits. I think it really harms everyone. It undermines democracy itself, and that's just bad for the country."

In addition to the usual get-out-the-vote campaigns, Democrats and Republicans in Maryland are planning major get-out-the-lawyer efforts to prepare for an election that could be fought as vigorously in Maryland's courts as at the polls.

Democrats plan to field a 500-person volunteer "legal protection team" on Election Day - composed mostly of attorneys - to guard against what they fear are GOP "voter intimidation" strategies in Democratic-leaning districts, party officials say.

Calling such suggestions "reprehensible," Republicans are enlisting their own army of volunteer lawyers and preparing for possible legal challenges on a range of fronts, from compromised electronic voting machines to no-show election workers and invalid absentee ballots.

Each side paints the other as the legal aggressor and says it is only mounting defensive strategies to safeguard the integrity of the Nov. 7 election.

"I think it really harms everyone," said Tova Wang, an elections scholar at the non-partisan Century Foundation, referring to the litigious atmosphere surrounding elections.

"It undermines democracy itself, and that's just bad for the country."

But with a faltering Republican Party's control of Congress at stake in next week's election, the prospect of lawsuits is high across the country, and Maryland is among the states most likely to have poll results contested in court, experts said.

That's because of a perfect storm of factors: close gubernatorial and U.S. Senate races, a glitch-filled primary in September that has eroded public confidence, and a likely record number of absentee voters - whose paper ballots experts say are more susceptible to fraud and demands for recounts than votes cast on electronic machines.

"The lesson that everyone seems to have taken from the 2000 presidential election is that Election Day isn't over on election night," said Doug Chapin, director of, a nonpartison election-monitoring organization that has identified Maryland as a "state to watch" for election-results court battles.

Marylanders' memories of election lawsuits goes back further than that 2000 contest that put George W. Bush into the White House by a razor-thin margin and prompted the federal government to demand that states replace the punch-card and lever voting systems that caused turmoil in Florida.

Claim of fraud

In Maryland's 1994 gubernatorial election, Republican nominee Ellen R. Sauerbrey claimed that fraud contributed to her defeat - by less than 6,000 votes - by Democrat Parris N. Glendening.

Sauerbrey lost her lawsuit, and one of her lawyers in that case said the outcome should serve as a cautionary tale to candidates or parties hoping to overturn initial election results.

"The standard [for contesting an election] is whether you can demonstrate a reasonable possibility of a different result had things been done right," said Byron Warnken, the University of Baltimore law professor who was part of Sauerbrey's legal team.

The crucial - and highly improbable ingredient - he said, is an extraordinarily close election.

"In our case, it was a little less than 6,000 votes, out of 1.45 million votes cast ... so the amount at issue was just about four-tenths of 1 percent [of the total vote]. That's a fairly close election, and we still weren't able to do it."

Recent polls of likely voters do not predict as close an election as that in the contests for governor and Senate.

Mayor Martin O'Malley, the Democratic challenger in the governor's race, has led incumbent Gov. Robert L. Ehrlich Jr., a Republican, by between 5 and 10 percentage points in independent polls. The margins in the Senate race have been similar, with Democratic Rep. Benjamin L. Cardin leading Republican Lt. Gov. Michael S. Steele.

While both parties are predicting victory, their lawyers are girding for a multitude of possible legal challenges.

Earlier this month, attorneys from the major parties - as well as those representing Cardin, Steele, O'Malley, Ehrlich and candidates for attorney general - met with elections administrators in Annapolis to share contact information and smooth out the logistics of potential litigation.

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