Lawyers Invade Florida as Election Looms

Maybe it is appropriate that Election 2004 comes just two days after Halloween. Because it feels like this election is haunted, especially here in Florida.

It is the specter of Election 2000.

At the early voting precincts in Miami, the refrain from voters is consistent:

"I really want my vote to count," says Tara Pinder.

"With all the problems that we had in the 2000 election," says John Cheever, "I felt it my duty to get out, and hopefully my vote will be counted."

Making sure that votes are counted has become an obsession here and across the country. Both Republicans and Democrats have enlisted thousands of volunteers for small jobs -- watching precincts as people cast their votes -- and big jobs -- preparing to argue disputed outcomes that leave the winner in doubt.

Beyond admitting that they have enlisted a large number of their legal supporters and that they are raising millions of dollars, the Republicans are not revealing their strategy. The Democrats are a little less cagey. Many still believe it was Republican lawyers who stole the 2000 election from Al Gore. They are determined not to let that happen again.

The Democrats say they have enlisted more than 10,000 lawyers nationwide, including more than 2,500 in Florida.

"The world might disagree, but there's no such thing as having too many lawyers," said Chuck Lichtman, special lead counsel for Sen. John Kerry's campaign, at a recent legal training session attended by 85 lawyers in Fort Lauderdale. "What we have is a grass roots organization of an awful lot of lawyers coming together for purposes of protecting the vote."

It is not just grass roots. The Kerry campaign has reserved six jets for Election Night. They will be on the runway with legal SWAT teams on board, awaiting Kerry's orders to speed to any state where the outcome is in question.

Potential Flashpoints

There are several potential flashpoints:

PROVISIONAL VOTING: Under the 2002 Help America Vote Act all states must offer eligible voters whose names do not appear on the voters list a chance to cast a ballot. Those ballots are placed in an envelope. If the winning margin is less than the number of provisional ballots, the envelopes are to be opened. But not before lawyers for each party have a chance to contest the legitimacy of each ballot. And there could be thousands of them.

ELECTRONIC VOTING MACHINES: They are now being used in at least some counties in 25 states. In most states the machines generate no paper record. A serious malfunction of the machines leading to a loss of votes could open the door for the lawyers.

COLORADO'S AMENDMENT 36: Voters in Colorado will face a seemingly obscure but important decision on Election Day: Should the state's nine electoral votes be split, so that they are allocated in proportion to the popular vote rather than winner-take-all? If Amendment 36 passes it will become effective immediately. If that happens and the division of those votes determines the outcome of the election, legal challenges are inevitable.

"I think there's as much legal jockeying going as there is political jockeying," says Jan Baran, former general counsel to the Republican National Committee. "Everyone wants to be prepared for the uncertainty that seems certain to arise from these elections."

Lawyer David Boies argued on Gore's behalf after the 2000 election. Like Jan Baran, he worries about the effect of so many lawyers scrutinizing every twist and turn: "It's like an army," says Boies, "if you've got one you tend to use it. If you've got a lot of lawyers standing by, you tend to find a use for them and you could end up with a lot of unnecessary litigation."

Election law expert Richard Hasen, a professor at Loyola Law School in California, says lawyers are the new political reality. "I think election law has become more of a political strategy," he says. "When you plan your campaign -- at least on a national level -- you've got to take into account the possibility of some kind of litigation. If only defensively because the other side might try and do it."

Boies warns a close election could leave voters waiting days or weeks before a winner is declared.

Could it be Election 2000 all over again?

The only thing that will save the voters from the lawyers is a clear victory for one side or the other.