From the WSJ Opinion Archives
Have You Registered to Sue?
The Floridification of American politics.
We may be on the way to turning Election Day into Election Month through a new legal quagmire: election through litigation. Yesterday's races promise to throw up a series of demands for recounts, lawsuits and seating challenges in Congress. "We're waiting for the day that pols can just cut out the middleman and settle all elections in court," jokes the political newsletter Hotline.
More seriously, the 2000 election debacle in Florida may have marked a permanent change in how elections can be decided, much as the battle over the Supreme Court nomination of Robert Bork changed the politics of judicial appointments. "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 to hit the ground running if anything happens."
In a country of 170,000 polling places, some screw-ups and chicanery are inevitable, and this year there will be lawyers galore either to uncover or to imagine them. The level of suspicion between the two parties since the Florida fiasco is deep and enduring. Republicans point to well-publicized cases of Democrats inventing illegal registrations on Indian reservations in South Dakota and plying the mentally ill in Wisconsin with quarters and food to cast absentee ballots as examples of widespread fraud. "Ballot security and preventing voter fraud are just code words for voter intimidation and suppression," responds Democratic National Committee spokeswoman Maria Cardona.
There are clear signs that the warring camps are going to see each other in court. Bill Clinton said last week that he's never seen an election with so many potential irregularities. The Justice Department has deployed 432 observers to 14 states, its greatest Election Day effort since the civil rights era. But in Florida, the civil rights coalition monitoring voting says it has "no confidence" in the Justice Department because it "refused to act" on the evidence of "massive voter disenfranchisement" in the 2000 election. But if Janet Reno didn't find such evidence in 10 weeks after an election when she was still attorney general, it's likely there wasn't any.
Nonetheless, Democrats continue to claim massive numbers of minorities are being blocked from voting. They deployed an army of 10,000 lawyers on Election Day for possible recount battles and court challenges. In Florida, nearly 1,000 lawyers monitored the polls yesterday--many carrying signs--so voters with a problem could turn to a voter-chasing on-site lawyer. Republicans had at least 1,500 lawyers on call yesterday.
Democrats are certain to outgun the Republicans in the legal arms race. One reason they were able to deploy 10,000 lawyers is the tight connection they enjoy with the Association of Trial Lawyers of America. This year, ATLA became the largest single contributor to federal candidates, almost exclusively to Democrats. Fred Baron, a recent ATLA president, told a seminar in July that he objected to an editorial in this paper claiming that "the plaintiffs bar is all but running the Senate." He pointed to the editorial and said, "Now I really, strongly disagree with that. Particularly the 'all but.'"
The same sweeping claim could be made about the extent of trial lawyer influence in the Democratic Party. The Florida recount allowed trial lawyers to make the argument to Democrats that lawyers could be as important as voters in determining elections and they should invest heavily in legal muscle. The trial lawyers had an enormous stake in retaining a Democratic Senate this year. The Daschle Senate blocked efforts by the Bush White House to cap liability in asbestos-related claims. It held up a terrorism insurance bill because it wouldn't give them the right to sue property owners. The new corporate-misconduct law passed this summer forces companies to make new disclosures that will produce a flurry of new shareholder suits.
In the lead-up to yesterday's vote, Lance Block, former president of the Academy of Florida Trial Lawyers, boasted that his office was "ground zero" for the deployment of Democratic lawyers to polling places. In Colorado, a Democratic request to the Colorado Trial Lawyers Association for pro bono election help was swiftly forwarded to all its members.
The lawsuits are already being filed. Democrats have sued in New Jersey and Florida demanding copies of the briefing books Republicans prepared to alert poll watchers to potential fraud. In Arkansas, a suit claims voter intimidation by Republicans. On Monday night, Tennessee Democrats sued in federal court alleging that a GOP e-mail suggesting poll workers "challenge voters who concern you" was actually an illegal attempt to suppress voting.
In South Dakota, site of the most hotly contested Senate race, Democratic lawyer James Leach wrote to Federal District Judge Lawrence Piersol last month asking if the party should file a request for a possible injunction with him since two other federal judges would be unavailable. The letter raised eyebrows because Judge Piersol is a former Democratic state legislator who was the lead lawyer in the bitter 1978 recount that won Tom Daschle his first race for Congress by 139 votes. Meanwhile, South Dakota Republicans have hinted at their own postelection challenge if the Senate race is decided by absentee ballots and there's evidence some were illegal. Maka Duta, a contract worker for the Democrats who authorities say will be charged with forgery in connection with absentee-ballot applications, has put out a press release claiming her work was directly overseen by supervisors at state Democratic headquarters.
A lawsuit is also likely if the Senate race is close in Minnesota. A state court ruled that voters who had already cast absentee votes for the late Paul Wellstone could have replacement ballots mailed to them. But since the ruling came down only late last Thursday, many of those ballots will arrive after Election Day. State law says late ballots can't be counted, but Democrats may well challenge that in court.
In Missouri, site of another close Senate race, voters for the first time will be able to cast provisional ballots if their names don't appear on the rolls. St. Louis, which has known problems with phantom voters, originally requested 45,000 provisional ballots in a city that typically casts only 125,000 votes. If the number of provisional ballots exceed the margin of victory in the Senate race, you can bet a lawyer will echo the Florida 2000 argument that "every vote must count," regardless of eligibility. In the future, candidates will have to hope their vote totals are beyond the "margin of litigation."
The recent surge in the number of absentee ballots has dramatically increased the potential for fraud. In 1997, the mayor of Miami was removed from office after it was learned 56 absentee-ballot "vote brokers" had forged ballots. It shouldn't surprise anyone then that this year Miami election officials hired the Center for Democracy, which normally observes elections in places like Guatemala and Russia, to send 20 election monitors to south Florida.
Now that our elections are being scrutinized the way the U.S. looks at developing countries, who will monitor the lawyers as they turn American politics into another breeding ground for endless litigation? A brand new federal law will give states money for better election systems and training, but at the state level we still need clearer laws and better protections against fraud if we are to avoid the further Floridification of our politics.
