Legal War Rooms Prep for Election Battle

Oct. 28, 20008—, 2008 -- With the election merely days away, exhausted political aides are rounding their last laps and preparing to pass the baton to a fresher, less sleep-deprived team: the lawyers.

Thousands of lawyers from both parties have recently stepped from behind the scenes in efforts to protect or challenge issues, like voter registration cards, data bases, voting machines, and early and absentee ballots, in preparation for Election Day next Tuesday.

While "political war rooms" have existed for years to bring together a campaign's political brain trust for strategy sessions, "legal war rooms" are a relatively new and growing phenomenon born after the contentious 2000 presidential election between George Bush and Al Gore that was finally decided by the Supreme Court.

"Since Bush v. Gore, there's a greater awareness of what can happen on the legal side of the equation," says Benjamin L. Ginsberg, who, as national counsel for Bush/Cheney, played a central role in the Florida recount. "It was a singularly historic event in the lives of lawyers, and no one wants to miss it if the Fickle Finger of Fate actually strikes again in our lifetimes."

On election night 2000, both parties realized they didn't have enough lawyers on the ground, and had to fly in legal teams to scramble and understand issues like "hanging chads."

The campaigns have learned a lot in eight years.

"The most effective way to build the legal team is to develop it as part of the campaign's Election Day operation," says Ginsberg, "and that lead time does allow for more boots on the ground by Election Day."

Battleground states will have war rooms bursting with legal talent on election night, but the campaigns have different priorities. Republicans, in general, are worried about the issue of voter fraud and Democrats are concerned with any effort to intimidate or suppress the vote.

"Our first hope is that voters will be the ultimate decider of elections," says Ben Porritt, spokesman for John McCain. "But 2000 made us aware we had to be prepared for all types of scenarios on Election Day."

The McCain campaign has lawyers, volunteers and staffers who will serve as poll watchers in major battleground states.

The Obama campaign began its "legal war room" efforts earlier in the campaign season, deciding to link its national political and legal teams with local lawyers in counties where they hoped to pave the way for record turnouts of young, low income and minority voters who may not have participated in an election before.

Lawyers worked to make the process of voting as trouble free as possible. "We see voter protection as an element of turnout," says one Obama official on background.

"We have put in extra resources" explained Bob Bauer, the general counsel for the Obama campaign on a recent conference call, "to make sure voters have access to the franchise." Bauer said the campaign began last summer to "work on what needed to be done."

One Indiana election board official, who has been contacted several times by lawyers affiliated with the Obama campaign, was stunned by the campaign's early efforts in Indiana, which has unexpectedly become a battleground state.

"They are a very together bunch," says Monroe County Clerk Jim Fielder, a Republican. Fielder, who has held his job since 1979, says, "I have never seen anything like this. We have met several times and gone over concerns."

Republican officials acknowledge that the Obama campaign has spent more resources in developing a more robust legal team throughout the country, but the Republican National Committee and the McCain campaign have worked to publicize the issue of voter fraud, specifically the efforts of the Association of Community Organizations for Reform Now (ACORN) to register new voters.

ACORN at one time boasted of registering 1.3 million new voters. It has stepped back from that number and admitted that a small fraction of its employees had submitted false voter registration forms. Several state investigations into the group have since been launched.

"This is a quasi criminal Democrat-affiliated organization," SeanCairncross, the RNC's chief counsel said recently. Cairncross has participated in almost daily conference calls the last few weeks to bring attention to the group.

In the last debate John McCain accused ACORN of "one of the greatest frauds of voter history in this country, maybe destroying the fabric of democracy in this country."

ACORN says the Republican attacks are without merit and point to the relatively low statistics of convictions for voter fraud nationwide. Bauer calls it a "smear campaign."

"Any Democrat that says voter fraud doesn't exist is clearly not paying attention to what's happening in the country," says Porritt. "ACORN is conducting voter registration fraud with a purpose to flood election officials with faulty voter registrations in an attempt to suppress the vote" of legitimate voters.

Legal challenges feed on one necessary element: a tight race. One Republican aide, unwilling to talk on the record, says, "If the race is not close, the legal challenges will not be a large part of the conversation."

But so far, this election promises to have a vigorous legal component.

"Both parties are seeking what they believe is a fair vote," says Ginsberg. "Republicans will work hard to make sure there is no fraudulent voting. Democrats fear vote suppression and have an elaborate organization to guard against that."

Ginsberg, who is a partner at Patton Boggs adds, "Many over-caffeinated lawyers on both sides will be out Election Day."

And Attorney General Michael Mukasey, appointed by President Bush in part to restore morale in the Department of Justice after his predecessor, Judge Alberto Gonzales, resigned amid allegations that he allowed improper political considerations to taint the work of the department, is being called upon by both sides to keep a careful watch.

Bauer has written four letters to the attorney general, expressing concern that the Department of Justice could be "drawn by pressure from Republican party officials, candidates and operatives, into improper and illegal involvement in this year's election."

House Minority Leader John Boehner, R-Ohio, wrote a letter to Bush last week asking him to direct Mukasey to investigate possible violations of legislation passed in 2002, called the Help America Vote Act in Ohio.

"Given that Election Day is less than two weeks away, immediate action by the department is not only warranted, but also crucial," wrote Boehner.

A Bush spokesperson said the president would forward the letter to his attorney general as "standard procedure." Mukasey has also received letters from Democratic members of Congress, outside groups serving as surrogates for both campaigns, and civil rights groups.

For the political camps, the race feels like it is almost over. Some lawyers might argue that it could be just beginning.