- The Washington Times - Tuesday, November 5, 2002

Today, Americans will go to the polls to determine the shape of our local, state and federal government. Amid a sluggish economy and threats against the nation, the stakes are high, and no more so than at the national level. While Republicans seem likely to keep the House, control of the Senate is very much up for grabs with a number of races that can go down to the wire. The less determinate those outcomes are, however, the greater the chances for another election-day result lawsuits.

Already this election cycle has produced at least three legal challenges. In New Jersey, Democrats convinced a court to override state election law when it was clear that their first candidate, the scandal-plagued Sen. Robert Torricelli, would lose. Following the death of Sen. Paul Wellstone in Minnesota, Democrats challenged the law remedying the disposition of that state's absentee ballots. And last Thursday, former Attorney General Janet Reno and Rep. Carrie Meek, both Democrats, filed suit in Miami-Dade County to block Republican observers from scouting for voting irregularities in fraud-heavy polling places never mind that, according to the New York Times, Democrats plan to dispatch 10,000 lawyers nationwide to do the same.

All this election-day lawyering by Democrats will not make things easier for the voter. A quick look at the Minnesota ruling on absentee ballots should make that clear. "If a voter casts a second regular absentee ballot and an absentee official supplemental ballot, the second regular absentee ballot shall be counted for all races except the office of United States Senator. The official supplemental ballot shall be counted for the office of United States Senator." Got it?

But then, making things easier was never really the point. The suits are an effort to undo the laws that prove inconvenient to the party's election goals and the murkier the remedy the better. Ill-considered court solutions, such as the one in Minnesota, only establish the basis for a legal appeal should the results not be favorable. Not surprisingly, Democratic operatives have already prepared lawsuits alleging the judge's ruling "disenfranchises" voters.

But this isn't just Minnesota's headache. Like negative advertisements and direct mail before, lawyers have become a new weapon in the parties' election arsenal since November 2000. And why not? Excessive lawyering in Florida led to the dimpled chad and thousands of extra votes for Al Gore. In Missouri, it kept the polls open in urban precincts and the state's Senate seat in Democratic hands. Now no campaign strategist can ignore this systematic pre-organizing for post-election challenges. Indeed, he would be negligent not to prepare the lawyers.

As unseemly as all the lawsuits are, they're certainly not illegal. But the courts have it in their authority to broadly or narrowly construe different areas of the law. For example, they broadly construe fundamental rights, but narrowly construe forfeiture provisions in home mortgage documents. As we move, inevitably, into a period of greater post-election litigation, the courts would be wise to narrowly construe challenges to election results particularly when plaintiffs offer novel and ingenious theories for relief.

There is a powerful national interest in prompt finality of election-day results. There is also an important democratic value in not holding the electoral process up to ridicule as happened in Florida in 2000. While the legislative and executive branches of government should move steadily to improve election technologies, the judiciary should exercise reasonable patience and forebearance before leaping to fix mistakes. We have a right to continue to be proud of our two centuries of legitimate, if often imperfect, elections.


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