History's Most Litigious Election

Most believe that on Nov. 3, the winner of Election 2004—what many have dubbed the most important election of our lifetime—will seal the fate of the United States. But it seems the world will have to wait. Rather, it should be assumed that Thanksgiving dinner discussion will be dominated by current debate; that is, who will be the President of the United States for the next four years. Perhaps, if we’re lucky, we can move on to speculations of Cabinet appointment during winter break; but even this is overly optimistic.

As a consequence of the harrowing post-election recall of 2000, both Republicans and Democrats have more lawyers working on this election than on any ever before. When lawyers, paid advisors, volunteers and outside organizations are totaled, both Bush and Kerry camps have election law representatives numbering in the thousands. According to Bob Bauer, counsel to the Democratic National Committee, these teams of election lawyers, referred to as SWAT teams, “will have done nothing but prepare through the fall.” Republicans have prepared by creating a network of lawyers in battleground states, and augmenting them with reinforcements. The Bush-Cheney campaign says it is targeting 30,000 precincts in 17 states that were the scene of past election problems; Democrats cite a similar number. Republican and Democrat lawyers say that at least one court case contesting the election seems inevitable. In fact, Democrats already have litigation pending to contest voting procedures. Both camps will be eagerly ready and waiting on Election Day to go to whichever swing state might turn into the next Florida.

That Florida 2000 was a confluence of unique circumstances—technical voting problems, a near tie at the ballot box, and state law wherein post-election challenges were legal—is true. However, as improbable as the Florida fiasco seemed, it will almost certainly happen again, not in one, but in multiple states. Battleground states such as Ohio, Pennsylvania and Florida (again) are likely settings for post-election litigation. These states have large numbers of Electoral College votes, making small numbers of disputed ballots worth fighting for. According to Bobby Burchfield, a Republican election lawyer who represented President Bush in the 2000 election recall, “There’s no perfect process, and there are always creative lawyers who can come up with something to complain about if the election is close.”

Yet even more alarming than these uber-present SWAT teams, is the lack of election reform in the post-Bush v. Gore era. In 2002, Congress passed the Help America Vote Act to give states money to upgrade equipment, develop computer registration lists, and provide guidance through the newly created Election Assistance Commission. The actual election commissioners, however, weren’t appointed until Dec. 2003, and there is a conspicuous lack of funding. Moreover, the technical voting problems of the Florida ballot still exist; an estimated 32 million voters in 19 states will use the ill-fated punch cards. Thus we must prepare ourselves for an encore of the notorious hanging chads. The few reforms that have been instituted are still vulnerable to litigation post-election. For example, new electronic voting equipment that resemble ATMs are supposed to be far more accurate than the old punch card or lever systems, but lawyers still argue that they are susceptible to computer hackers and power failures.

It is unacceptable that the U.S. presidential election, a process which has occurred for over 200 years, will inevitably be lengthened and determined by lawyers and the courts—for a second time no less. This is a result of both the country and the states’ inability to institute effective election reform. States must streamline election procedures; technical glitches of the 2000 election should no longer be utilized in any state. Before the 2008 election, the U.S. government must amend the election process to ensure that campaigns are spending money on reaching out to voters—not on arguing over ballots long after the votes have been cast.

Elise M. Stefanik ’06, a Crimson editorial comper, is a government concentrator in Winthrop House.