John W. Dean / FindLaw – 2004-10-24 11:27:21

http://writ.corporate.findlaw.com/dean/20041022.html

(October 22, 2004) — This next presidential election, on November 2, may be followed by post-election chaos unlike any we’ve ever known.

Look at the swirling, ugly currents currently at work in this conspicuously close race. There is Republicans’ history of going negative to win elections. There is Karl Rove’s disposition to challenge close elections in post-election brawls. And there is Democrats’ (and others) new unwillingness to roll over, as was done in 2000.

Finally, look at the fact that a half-dozen lawsuits are in the works in the key states and more are being developed.

This is a climate for trouble. A storm warning is appropriate. In the end, attorneys and legal strategy could prove as important, if not more so, to the outcome of this election as the traditional political strategists and strategy.

Let’s go over each factor that spells trouble — and see how they may combine.

A GOP Disposition for Nasty Campaigns
Before this year’s race, 1988 presidential race between George H. W. Bush and Michael Dukakis was well-known as the most foul of modern campaigns. The Bush campaign used Willie Horton to smear their way to the White House — with Lee Atwater playing the hardest of hardball.

Horton was a convicted murderer. Massachusetts Governor Dukakis gave him a prison furlough. Once furloughed, Horton held a white Maryland couple hostage for twelve hours, raping the woman and stabbing the man.

By using these facts – and Horton’s mug shot — in a heavy-handed negative advertisement, Atwater turned the election for Bush. As a Southern, especially, he must have understood how the ad catered to racial prejudice.

In the 2000 Republican primary race, George W. Bush used similar tactics against Senator John McCain. That’s no surprise: Bush’s political strategist Karl Rove, and Bush himself, were protégées’ and admires of Lee Atwater. To my knowledge, all of Rove’s campaigns have accentuated the negative — often dwelling exclusively on nasty attacks. This one is no exception.

Thus, if Bush narrowly prevails on Election Day, the Democrats are likely to be in a less than congenial mood – and especially likely to go to court. And there will doubtless be fodder for litigation, given the GOP’s propensity to try to disqualify votes and voters.

The GOP’s Campaign Tactic of Attempting to Disqualify Votes and Voters

In 1986, former Assistant United States Attorney James Brosnahan (today a noted San Francisco trial attorney) testified – based on an investigation the Justice Department had dispatched him to conduct — that as a young Phoenix attorney, Justice William Rehnquist had been part of conservative Republicans’ 1962 efforts to disqualify black and Hispanic voters who showed up to vote.

Brosnahan’s testimony was supported by no less than 14 additional witnesses. Rehnquist nevertheless became Chief Justice — thanks to the continued support of conservative Republicans.

During the 1964 Goldwater versus Johnson race, when I first heard of such tactics, I was appalled to hear friends bragging about excluding Johnson supporters from voting. Later, when I found myself working at the Department of Justice for Richard Kleindienst, we discussed such tactics.

Kleindienst served as director of field operations for Goldwater in 1964, and for Nixon in 1968. Remarkably, Kleindienst confided that he had engaged in fewer dubious tactics in 1968 than in 1964. If such efforts were mounted by the Nixon campaign in 1972, when I had a good overview of what was going on, I am not aware of it.

Even Nixon had his limits, and he was more interested in wooing white Southerners into the Republican ranks. He did so, successfully, when such Southern Democrats stalwarts and pillars of bigotry and racism as Senators Strom Thrumond and Jesse Helms joined the GOP.

They renewed the party’s effort to disqualify voters who, and votes, that did not see the world as Republicans did. The racism became less blatant. After all, it had become a crime — which called for new tactics. Yet the revised stratagems were (and remain) anything but subtle.

The 2000 presidential race in Florida is an excellent example. Reportedly, Bush’s Florida victory came courtesy of 537 votes out of some six million. It’s plain from this slim margin that the GOP’s voter and vote disqualifying tactics cost Vice President Al Gore the presidency.

(In the October 2004 issue of Vanity Fair, an excellent article entitled “The Path To Florida” explains how the Republicans nullified and disqualified literally hundreds of thousands of Florida votes.)

This lesson has not been lost on the Democrats — who are likely to refrain from conceding if they are losing in 2004 until all of the dubious disqualifications in closely-won swing states are sorted out.

Rove’s Refusal to Accept Defeat: The Knee-jerk Response of Suing
And it won’t only be the Democrats heading to court. Indeed, in Florida in 2000, it was Bush who sued first — while later falsely accusing Gore of starting the litigation.

Contrary to popular belief, it wasn’t merely the closeness of the tallying in what appeared to be unique circumstances in Florida that spawned litigation. To the contrary, suing is a standard operating procedure for Karl Rove when he is losing (or has lost) a race.

A recent profile of Karl Rove in the November 2004 Atlantic Monthly, entitled “Karl Rove In A Corner,” examines how Rove operates in a close race. While Rove has had only a few, his tactics are never pretty.

The article describes “Rove’s power, when challenged, to draw on an animal ferocity that far exceeds the chest-thumping bravado common to professional political operatives” — and notes that “Rove’s fiercest tendencies have been elided in national media coverage.”

Consider Rove’s role in a 1994 judicial campaign for the Alabama Supreme Court. Election returns showed his candidate had lost by 304 votes. But Rove went to court – not only suing to overturn the election, but at the same time, further campaigning to garner support for these efforts.

These maneuvers went on and on and on. Rove’s candidate and his opponent both appeared for Inauguration Day ceremonies, although neither was seated. Rove moved the matter from state to federal courts. And he appealed whenever he could — all the way up to the US Supreme Court, which stayed the case almost a year after the election. In the end, Rove’s man won — purportedly by 262 votes.

Doubtless, Rove was similarly prepared to take Bush’s 2000 lawsuits as far as necessary. Had the US Supreme Court bumped the case back to the Florida Supreme Court, and allowed the recount to conclude, doubtless Rove would have again challenged the recount — all the way back up to the US Supreme Court if necessary.

Make no mistake: If Bush loses, and it is very close, Rove will want to litigate as long as possible, going to the US Supreme Court (again) if possible.

Still Too Close to Call: The Conspicuous Closeness of the 2004 Race

So far, no incumbent modern president has won or lost in a squeaker. Even races that looked close in the polls were subject to a last-minute surge in one direction. But we are now ten days away from the 2004 election, with no surge yet in evidence.

A late “October Surprise” might change that. Osama’s arrest would likely cause a surge for Bush. New and unequivocally damning evidence about the justification for the Iraq war could create a surge for Kerry. (Suppose, for instance, it became incontrovertible that, for instance, Bush and Cheney knew that Saddam not only did not have WMD but also had terminal cancer.)

Still, without such a surprise, this race may be an historical photo finish. The electoral is deeply dived. Most of the undecided are now decided. So a true surge for either candidate is unlikely.

There is one wild card: Both sides — as well as many independent groups — have recently registered hundreds of thousands of new voters. Historically, newly registered voters have often not voted in the first election for which they were eligible. But that could change; it’s impossible to know.

Exactly how close will the race be? Of course, polls are an imperfect measure, and they tend to be less reliable the closer it is to Election Day. Still, as I write, and based on the consensus of polls I believe (historically) the most reliable, the situation appears to be this:

There are a total of 538 electoral votes. A simple majority of 270 wins. (If the candidates tie at 269, the tie is broken by the House of Representatives.)

President Bush seems to have a lock on 176 electoral votes from 20 states:
AL-9, AK-3, AZ-10, GA-15, ID-4, IN-10, KS-6, KY-8, LA-9, MS-6, MT-3, NE-5, ND-3, OK-7, SC-3, TN-11, TX-34, UT-5, VA-13 and WY-3. Senator Kerry seems to have a lock on 153 electoral votes in ten states and the District of Columbia:
CA-55, CT-7, DE-3, HI-4, IL-21, MD-10, MA-12, NY-31, RI-4, VT-3 and DC-3.

Six states with 51 electoral votes tilt toward Bush: AR-6, CO-9, MO-11, NV-5, NC-15 and WV-5. But six states with 63 electoral votes lean toward Kerry: ME-3 (note that Maine apportions its four electoral votes, and one vote still appears to be up for grabs), MI-17, MN-10, NJ-15, OR-7 and WA-11.

Suppose all the tilting states indeed go in the direction in which they are tilting. That gives Bush/Cheney 227 electoral votes, and Kerry/Edwards 216 votes.

There are still eight true swing states. In total, they have 95 electoral votes: IA-7, FL-27, ME-1, NH-4, NM-5, OH-20, PA-21, and WI-10.

It is in these states that election 2004 will ultimately be resolved — either in the voting booths, or in the courts. And note that none of these states, alone — even Florida, with its 27 votes — will give either candidate a win.

That means we could see simultaneous litigation in a number of states — chosen either because the polling was especially close, or because there are significant numbers of vulnerable votes to try to disqualify. It will be recalled that the possibility for multi-state litigation arose in 2000, before Florida became the focus; it could easily become a reality in 2004.

An Election for Attorneys: Neither Side Will Budge If Litigation Begins

When I discussed this situation with several attorneys on both sides, I realized none are likely to back down. The Democrats intend to play hardball to win this time; the Republicans feel that Democrats aren’t adhering to the letter of the law in registration efforts – and want to hold them to it.

It is impossible to get a complete count, but it appears that at least 10,000 — and possibly as many as 150,000 — attorneys, paralegals and law students will be working as observers, or handling election problems, on November 2 — just in the swing states. They have been trained in the relevant state’s election laws, and they will focus on the casting and counting of votes.

With so many legal minds looking for problems and such combative attitudes on both sides, litigation seems inevitable – especially if the November 2 tally is close. And if litigation starts, it won’t stop soon: A game of litigation chicken — testing who will fold first – seems likely, with each party bent on holding out.

The Nightmare Scenario: An Election up in the Air for Months

It may be days or weeks, if not months, before we know the final results of this presidential election. And given the Republican control of the government, if Karl Rove is on the losing side, it could be years: He will take every issue (if he is losing) to its ultimate appeal in every state he can.

The cost of such litigation will be great — with the capital of citizens’ trust in their government, and its election processes, sinking along with the nation’s (if not the world’) financial markets, which loathe uncertainty.

After Bush v. Gore, is there any doubt how the high Court would resolve another round? This time, though, the Court, too, will pay more dearly. With persuasive power as its only source of authority, the Court’s power will diminish as the American people’s cynicism skyrockets.

It does not seem to trouble either Rove or Bush that they are moving us toward a Twenty-first Century civil war — and that, once again, Southern conservatism is at its core. Only a miracle, it strikes me, can prevent this election from descending into post-election chaos. But given the alternatives, a miracle is what I am hoping for.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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