Litigation Day Control of Congress may be decided in the courts, starting Nov. 8.
Monday, October 23, 2006 Everyone is speculating about which party will control Congress after next month's voting. But we may not know for a while. We could see either party pursue the kind of lawsuits that Al Gore unleashed in Florida in 2000 and contest any number of tight races that are within the "margin of litigation." Recounts and even seating challenges in Congress could stretch on for weeks--another endless election. "We're waiting for the day that pols can cut out the middleman and settle all elections in court," jokes the political newsletter Hotline.
"In 2000 in Florida, we broke a psychic barrier," says Doug Chapin, director of the nonpartisan Election Reform Information Project. "Election night is not necessarily the finish line anymore. Both sides are lawyering up." Indeed, in 1998 the number of court cases challenging elections totaled 104, by 2004 that number had climbed to 361.
Even though the Bush-Gore fiasco did prompt calls for reform and the passage of the 2002 Help America Vote Act, that law didn't become fully operational until this January and was relatively modest in scope. Many of the kinks and difficulties engendered by HAVA will have to be sorted out in this election. "There hasn't been enough improvement in the system so we can actually have greater confidence in the election process," says Rick Hasen, a law professor who runs the blog Electionlawblog.org. Here are some potential sticking points:
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New laws. Many states have adopted new computerized voting lists that have purged ineligible or dead voters. Others have adopted voter identification laws. Both measures will provide fodder for lawsuits. Last Thursday, for example, the Supreme Court unanimously vacated a Ninth Circuit opinion enjoining the use of Arizona's new voter ID law on the grounds it would disenfranchise voters.
The court, clearly sympathetic to those who believe voter ID will cut on down on voter fraud, turned the disenfranchisement argument around on its opponents. The unsigned decision noted that anyone without ID could cast a provisional ballot that would be verified later and that fraud "drives honest citizens out of the democratic process . . . voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised."
Notwithstanding the court's ruling, such laws have the potential to trigger postelection litigation. "We're expecting arguments at the polls in these states that will slow everything down," says Barbara Burt, an elections reform director for Common Cause.
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New technology. Many states and counties will be using electronic voting machines for the first time, and in some places there have been delays in the delivery and setup of the machines. A large majority of Election Day workers are elderly and uncomfortable with new technology, which makes training difficult. A shortage of technical workers to service broken machines has forced vendors in some states to advertise for such workers on job sites such as Monster.com.
Then there is the possibility that pure incompetence will throw an election into chaos. Last month's Maryland primary almost melted down after election officials in affluent Montgomery County forgot to deliver access keys to the electronic machines before polls opened. Some polling places ran out of paper provisional ballots, and thousands of prospective voters gave up and went home. For next month's election, both Gov. Bob Ehrlich and his Democratic challenger, Martin O'Malley, are suggesting voters consider casting an absentee ballot to dodge potential problems at the polls.
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Absentee ballots. When top officials such as those in Maryland call for general use of absentee ballots, a fundamental erosion of trust in the voting system is taking place. The growth of absentee ballots has been explosive in recent years, exceeding 30% of all ballots cast in 2004 in such states as California, Washington and Iowa. When combined with the early voting many states now allow, about one out of four Americans will vote on a day other than Election Day this year. John Fortier of the American Enterprise Institute concludes in his new book, "Absentee and Early Voting," that "there are now many election days, beginning in September and only culminating on the traditional November date."
But absentee ballots aren't the answer to election fears. They clearly increase the potential for fraud "The lack of at-the-polls accountability and protection from intimidation makes absentee ballots the tool of choice for those who commit fraud," the Florida Department of Law Enforcement concluded in 1998 after a mayoral election in Miami was thrown out when it was learned "vote brokers" had submitted hundreds of phony absentee ballots. More recently, in Wise County, Va., three elected officials were charged this past March with 900 counts of ballot fraud. They had filled out absentee ballot applications for others, intercepted the ballots in the mail, and then filled them out themselves. Last year a Connecticut state representative admitted, according to the Hartford Courant, that he "illegally induced elderly residents of the Betty Knox housing complex in Hartford to cast absentee ballots for him." He got off with a $10,000 fine and community service.
Mr. Fortier says that greater measures to combat absentee ballot fraud are needed, such as using computer software to check signatures and investigating those that don't match. Similarly, an inked-space could be provided for voters to submit a fingerprint with their absentee ballot--a precaution that is taken in Mexico and several other countries. To provide for voter convenience, Mr. Fortier suggests expanding the number of hours a day that states allow early voting at government buildings, although he believes the early voting period should be limited to 10 days before an election to ensure that as many voters as possible have the same information available to them when they make their choices.
At this late stage, it's unrealistic to believe that many of the potential problems in this year's election can be guarded against. So after the inevitable recounts and court cases that will accompany any very close election, there is also the chance that this year's disappointed candidates will take their case to Congress. Both the House and Senate are each legally the final judge of any disputed election. If control of each chamber hinges on a couple of razor-thin races, look for lengthy floor debates to be held over who really won each seat.
Sometimes such disputes can drag on. In 1974, New Hampshire Democrat John Durkin ran for the Senate and very narrowly lost. A recount then overturned that original result and gave him a 10-vote lead over Republican Louis Wyman. But the state's Ballot Law Commission recounted the ballots again and found Wyman the winner by two votes. Mr. Durkin had no real evidence of fraud, but he contested the election anyway. The Democratic-controlled Senate sided with him and refused to honor the state's certification. The seat remained vacant for seven months. The debate over it spanned 100 hours over a month's time with 35 inconclusive roll calls--and at the time Democrats had a solid Senate majority. Imagine how bitter the debate would be over contested seats if the Senate is closely divided after next month's elections. (The 1975 impasse ended only after Mr. Durkin agreed to a special election, which he won.)
Ten years later, it was the House's turn to have a vicious dispute over a contested election, this time in Indiana. After a recount, Republican Richard McIntyre was declared the winner by 34 votes over Democratic incumbent Frank McCloskey. The Indiana secretary of state, a Republican, certified the McIntyre victory, but the Democratic House refused to seat him and left the seat vacant for four months while a special task force recounted all the ballots. The task force decided--and the full House agreed along party lines--that the Democrat had won by four votes. Republicans charged that the Democrats had recounted the ballots until their man was ahead and then promptly shut down the count. Newt Gingrich, the future House speaker, labeled the refusal to seat the certified winner "the Watergate of the House," and led a walkout of GOP members from the chamber.
"The problem with these kinds of close votes . . . [is that] it always produces wounds on the losing side," Leon Panetta, a Democratic former congressman who was a member of the 1984 task force and later President Clinton's chief of staff, told Roll Call, the Capitol Hill newspaper. "And if there are already existing divisions, it will certainly exacerbate those differences, there is no question about it." In other words, if you think this campaign is angry and bitter, wait till you see the debate over any contested elections.
Just as the no-holds-barred debate over Robert Bork's ill-fated appointment to the Supreme Court in 1987 changed the politics of judicial nominations permanently, the Bush-Gore Florida election contest in 2000 might have changed the way close elections are decided. Regardless of the eventual winner in any contested election, the country may be the loser if the result is a poisoning of public opinion and the creation of a climate of illegitimacy around any final winner.
Voters are still used to having the final word in an election. But that could change if the election next month degenerates into the decisions in voting booths quickly being fought over by often unelected judges and trial lawyers practicing scorched-earth tactics. Brad Smith, a law professor and former chairman of the Federal Election Commission, says the trend toward "election by litigation" isn't healthy and ways should be found to minimize its spread. "It's good to have added attention on elections and federal money to run them," he told the Associated Press. "But people have to relax, be reasonable and have some level of good faith." Right now, there's precious little evidence of any of that kind of behavior out on the campaign trail.
http://opinionjournal.com/diary/?id=110009139
