What Could Go Wrong: Part III

Galvanized by the 2000 recount and this year's close race, the presidential campaigns, their national parties and several private groups will deploy what is perhaps the largest vote monitoring effort in American history next Tuesday.

Thousands of poll watchers and lawyers are braced for traditional problems like alleged voter intimidation and fraud. But new dangers may also undermine Election Day: So-called provisional ballots and computer voting are raising eyebrows.

Some worry the mere presence of so many lawyers and monitors could erode the perceived legitimacy of the election.

"I think it could be a very serious problem," said Sen. John McCain in an interview outside the final presidential debate in Tempe.

"There is no doubt that there are questions about voting procedures," the Arizona Republican continued. "If we see a very close election in some of these states, the lawyers are mobilized. So yes, I'm concerned about it."

It's also possible that major controversies could erupt over some of the routine problems that occur during national elections — which, after all, happen only once every four years and involve tens of millions of voters in thousands of polling places in 50 states.

The 2004 election has already been the subject of court battles, from a dispute in Florida over touchscreen voting to a raft of lawsuits over provisional ballots, the special forms that voters must fill out if they claim to be registered but don't show up on the rolls or lack proper identification.

This is the final article in a three-part series examining the potential problems on Election Day and beyond. Part I focuses on questions about voting technology. Part II deals with concerns about registration fraud and voting rights.

While the 2000 election eventually involved plenty of lawyers, "they didn't have the kinds of troops in the field working those issues until Wednesday – until the day after," said Suzanne Haik Terrell, a former Louisiana elections commissioner and voting law expert.

"I think now there's a lot more preemptive action being taken," she said. "A lot of lawsuits have been filed and answered and voting hasn't even begun."

As the lawyers litigate, private groups like People For The American Way are enlisting volunteers to monitor polling sites on Nov. 2. The ACLU has alerted state affiliates to beware intimidation tactics. Computer experts are being recruited to observe electronic voting. Government lawyers will also be in the field.

"I have never seen the level of concern about an election that we are seeing now," said Laughlin McDonald, director of the ACLU's voting rights project. "People are mobilizing in a way that's without any precedent."

In preparation for legal trouble the Kerry-Edwards campaign boasts an army of 10,000 lawyers, including a quick response team ready to hop-scotch the country via jets.

Generally, Republicans have localized their legal defense.

"Look, we have broad based support in lawyers; we have a lot of lawyers that support our grass roots effort," a Bush-Cheney attorney quipped who spoke on the condition of anonymity. "I do not have a S.W.A.T. team I'm aware of. If we do, I want to be part of it and I want the jacket."

In a conference call last week, Bush-Cheney campaign officials claimed Democrats rejected a proposal to place a representative of both parties and a media member in every election precinct. They refused to get into details about their own preparations.

"We don't have any plans to aggressively challenge any one," said Bush campaign director Ken Mehlman. "We obviously will do whatever we have to do to defend challenges and defends lawsuits."

Republicans have taken steps to question suspect ballots in Ohio. In a blow to that effort, a U.S. District Court judge Wednesday issued an order effectively halting Republican hopes to preemptively challenge 35,000 they called suspicious voters.

"The decision is a strong statement that voting rights come first and foremost," said Democratic National Committee spokeswoman Jenny Backus. "This ruling turns over and displaces what we think is a key component of the Republican strategy for this campaign, which is to systematically challenge the voting rights, the voting registration, and the votes, of hundreds of thousands of Americans."

Following the ruling, Ohio Republicans said they intend to go ahead with their plan to place 3,400 monitors in precincts that are predominately Democratic.

Provisional ballots are a key unknown variable of Election Day. Mandated by the Help America Vote Act of 2002, states are required to provide such ballots in the event that a voter does not appear properly registered.

With the U.S. Court of Appeals for the 6th Circuit ruling Tuesday that provisional ballots cast outside a voter's registered precinct are invalid, legal opinions nationwide have favored the Bush-Edwards campaign. The GOP has argued for strict interpretation of HAVA.

"The Republican position is that you have to uphold the law...you don't see us challenging the law in the 11th hour or in some cases, the middle of the election, because of early voting," said Mark Wallace, Bush-Cheney deputy campaign manager who is overseeing much of the legal fight. "I would generally say my biggest concern is these attempts by the Democratic side to challenge these laws in the very late hours and try to take out statutory law and throw it into the court."

Though HAVA does not dictate exactly under what conditions provisional ballots should be counted, the prevailing understanding is that a battle between party officials will only ensue if the number of provisional ballots outweighs the margin of victory.

Democrats are expected to cast the bulk of provisional ballots, so many Democratic votes might not be counted until after Nov. 2. That means the margin in key states following Election Day could immediately favor Republicans. Democrats are worried they will be cast in a negative light for battling to validate provisional ballots in the days that follow.

Republicans argue the Democratic game plan is to claim intimidation regardless of whether it has occurred. They point to a DNC election manual that suggests, "If no signs of intimidation techniques have emerged yet, launch a 'pre-emptive strike.'"

Democrats shoot back that their efforts are justified by past attempts to suppress the vote.

With Democratic-leaning precincts being targeted by Republicans, the Kerry-Edwards campaign is decrying the effort as an attempt to stunt Democrats support. Underlying the concerns in Florida, Ohio and other swing states is that these precincts tend to be heavily made-up of minorities.

"It is the biggest concern, that the voter suppression schemes are widespread," said senior Kerry-Edwards adviser Rev. Jesse Jackson. The leading civil rights activist was also interviewed outside the final debate.

To offset concern over much of the electorate's distrust of the 2000 election, for the first time in U.S. history there will be international observers monitoring American polls. Both parties say they welcome such oversight.

"I've monitored a few elections overseas and around the world myself and I'm glad they are there; they'll lend legitimacy to this campaign," McCain said.

The international effort will not be alone. Several groups are recruiting volunteers to watch voting nationwide.

Election Protection, sponsored by groups including the liberal advocacy organization People for the American Way and the NAACP National Voter Fund, will enlist some 20,000 volunteers, including 5,000 lawyers and law students, working in 17 states and at 38 "legal command posts."

"It's the largest voting rights mobilization ever," said People for the American Way president Ralph Neas in a conference call last week. "This will be to 2004 what freedom summer was to 1964."

A telephone hotline will also allow PFAW to identify patterns of complaints and respond.

"We can have a team of lawyers go into court or go to the press," Neas said. "I'm not sure what we'll do first. We certainly intend to share it with the world as soon as possible."

Usually, election monitoring is left to the Justice Department, which enforces the Voting Rights Act. The department announced Thursday that it will dispatch on Election Day 840 federal observers and more than 250 Civil Rights Division lawyers to 86 jurisdictions in 25 states, from Brooklyn, N.Y. to Kodiak Island, Alaska.

The DOJ Web site has a prominent notice, in English and Spanish, telling voters to contact the department if they think they have "been denied the right to vote based on your race, color, or language minority status."

However, some civil rights groups have expressed alarm at Attorney General John Ashcroft's new emphasis on policing "voter integrity" as opposed to merely "voter rights." The former term generally refers to voter fraud, the latter to efforts that suppress votes.

The Justice Department says it is only enforcing existing laws. But McDonald of the ACLU said the voter integrity movement "has a pretty suspect history in the United States," and links it to past efforts to disenfranchise minorities.
By David Paul Kuhn and Jarrett Murphy