The Precount: Our Post-Chad, Election Fad

Screen shot of ACORN Web site

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Having learned in Florida in 2000 how miserable it can be to litigate presidential elections after voting, America now seems eager to try to litigate its partisan disputes before the first Tuesday in November. Allegations of systematic voter fraud - or, concomitantly, partisan voter-roll purges - seem as numerous (and as well-publicized) these days as the relentless and vicious campaign commercials now inundating the airwaves of "purple" states (like mine).

The commercials are just plain evil. But our post-chad, 21st-Century-fad of racing to the courthouse to fight over election law in September and October actually is a good thing. There's nothing like the deadline pressure (and headlines) of a looming, destiny-changing election to get local bureaucrats, lawyers and judges to focus upon the nation's God-awfully vague election laws. And Lord knows we need that focus to generate some legal finality, if not actual clarity, about state registration rules.

Take Ohio, for example. Please. In 2004, the state endured a mess of an election. The Democrats alleged voter intimidation and other illegal tactics by Republicans. The Republicans alleged voter fraud and other illegal conduct by Democrats. And only John Kerry's admirable lack of appetite for another post-election recount fight kept the place from exploding with litigation. Remember, if you will, that the last presidential contest essentially ended in and around Columbus on the morning after the election when the campaign lawyers said there would be no litigation.

Clearly, despite becoming national laughingstocks, state officials of both parties weren't able to do enough in the intervening four years to alleviate enough partisan pressures and concerns over elections laws. There is plenty of blame to go around for that. As staff writer Dennis J. Willard wrote in Sunday's Akron Beacon Journal: "If the [state's election] laws are vague and hard to understand or they have loopholes, such as a window of days when newly registered voters were eligible to cast absentee ballots immediately, then Republicans have no one to blame but themselves for poorly crafted legislation" since they were in charge of the legislature when those laws were enacted.

But, in this election cycle, the Republicans get to blame the Democratic Secretary of State, Jennifer Brunner, for the chaos they say is occurring over new voter rolls. Brunner succeeded J. Kenneth Blackwell, who infamously "ran" Ohio's last presidential election despite serving simultaneously as a state co-chair of the Bush-Cheney campaign. The state GOP sued Brunner in federal court a few weeks ago under the Help America Vote Act of 2002, an Orwellian piece of legislation that people now seem to be using mostly to hurt not "help" their fellow Americans have a chance to vote.

The GOP, worried about unprecedented registration drives by groups like ACORN (and the Democratic Party), demanded under the HAVA that Brunner cross-check voter registration information via a county-wide distribution of a statewide list of potential discrepancies in registration information. The idea, for the Republicans, is that giving such information to county officials would make it more likely that "suspect" voters are turned away without voting on Election Day. And suspect voters, apparently, at least in Ohio, are usually Democratic voters. A McCain spokesman late last week said that it is "no longer in question" but that Brunner is a "partisan" trying to "minimize the level of fairness and transparency in this election."

But as is often the case during a campaign, there is at least, at the moment, a lot more accusation and a lot less proof than meets the eye. Brunner responded to the lawsuit by claiming under Ohio law her office is culpable for, and capable of, sifting through the new registrations to separate legitimately bad ones (like Mickey Mouse) from ministerial ones (like a missing letter in a name or address). Ohio's argument boiled down to this: let's not throw the baby (the good votes) out with the bathwater (the bad votes) especially before we can determine which are which.

It was a cynical lawsuit based upon an ineffectual law supported by dubious proof. And it lasted less than two weeks. Two lower federal courts ruled for the GOP and against Brunner but the United States Supreme Court, forever sullied by Bush v. Gore, quickly and wisely kept the federal judiciary out of the fray this time. The Justices ruled per curiam (together as a group) that because Congress didn't specifically authorize it in HAVA, the GOP, as a private party, didn't have the right to sue for enforcement of its cross-matching provision.

You may agree or disagree with this result. But at least it is a result; a wee bit of clarity before the election. I mean, if election litigation is now as American as "voting early and often," we might as well get our court battles over with before the polls open. So welcome to the 21st Century - where thanks to lawsuits elections soon will last almost as long as the eternal campaigns which preceded them.
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