- The Washington Times - Thursday, October 28, 2004

It’s disappointing, but perhaps no surprise, that the legal battle for the presidency is well underway even though four days remain before the election. The lawyer brigades are out on both sides.

As of last week, Democrats have revealed, more than 10,000 DNC-coordinated lawyers began descending on battleground states to monitor polling stations and challenge rulings. They have already begun filing lawsuits to enact last-minute changes to voting rules in Florida and Ohio in the hopes of swinging those hotly contested states to Democratic favor, and they’ll draw on a $3 million legal fund raised by the Kerry campaign to fight recount battles in as many as five states, The Washington Post reported last week.

Republicans, meanwhile, are following suit with an unspecified number of lawyers they vow will counter whatever the Democrats can muster. Hayden Dempsey, head of the Bush-Cheney legal team in Florida, says Republicans are “far better prepared to respond than before,” and reportedly has more than 250 lawyers in Florida at his disposal. The San Jose Mercury News reported Wednesday an exodus of lawyers and other would-be poll-watchers — presumably mostly Kerry backers — leaving the San Francisco Bay area for Ohio, New Mexico, Nevada and elsewhere to push their favored candidate. In a different era this would have been called carpetbagging. These days, it’s just another part of the post-Bush v. Gore political landscape.

Back in 2000, the pundits urged Al Gore to heed what Richard Nixon did in 1960 when, in a close election and with better electoral-fraud evidence than anything Mr. Gore could point to, Mr. Nixon conceded the election to John F. Kennedy despite having considerable grounds for challenge. Fraud in Chicago was systematic and rampant, and evidence emerged that the Texas count was manipulated, too.

But with party hacks and campaign subordinates urging him to seek a recount, Nixon went on a much-deserved vacation. After the campaign, as New York Herald Tribune political reporter Earl Mazo recounted it years later, Nixon personally asked reporters to stop investigating charges of fraud. Mr. Mazo had already visited an empty house in Chicago that registered 56 votes for Kennedy, verified first-hand other oddities of the city’s political scene under Mayor Daley and had a Pulitzer on his mind for reporting it. But Nixon implored him to stop in person, saying “the country couldn’t afford a constitutional crisis at the height of the Cold War,” as The Post retold the story in 2000. The investigations ended.

How things have changed. These days, the lawyer brigades are quickly becoming a permanent feature of our national electoral life. The consensus emerging is the inverse of what Nixon wanted: Eternal vigilance and a routine recourse to litigation. In all likelihood, this will make unwarranted judicial intervention in the electoral process a regular feature of voting season.

If the heightened scrutiny of electoral processes results in increased vote-counting accuracy and more democratically representative elections, then the election 2000 experience will have been for the good. No one should hold his breath for that outcome. Human being what we are, we jockey for partisan advantage. Election by litigation is what inevitably results from the on-the-spot adjudication the lawyer brigades are now demanding. The truth is that electoral fraud and voting irregularities happen in every election, and that these have only now come to the fore because hotly contested elections in increasingly litigious environments seem to demand them. In reality, they don’t. But our political culture suffers all the same.

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