John Fund has a column today in the Opinion Journal that should give just about everyone a headache. He points out that since the 2000 election when Al Gore broke a sort of psychic barrier by filing lawsuits, the number of elections contested in court has skyrocketed. And it could happen again, but even worse, this year. He points out that if the results of the voting in within "the margin of litigation", the outcome of the election may not be known for quite some time.
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:
• 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."
Go read the whole thing. You might as well get a headache, too. Misery loves company.
Recently, I’ve heard two or three dems interviewed that are already setting the stage for challenges. Cynthia Mckinney, for one, made remarks the other day disparaging the electronic voting machines and as much said that recounts and legal challenges would be in order in those precincts that used that method of voting. I realize that she is less than credible. However, her remarks, if they are to be believed, open the door for future problems.
Once again Fund is making things up – Gore v Bush was filed by the Bush campaign.
That was my statement, not Fund’s and it was based on Gore taking the election into the Florida courts. Bush v Gore was taking the Florida decision to the USSC.