BY DANIEL HENNINGER
Friday, October 29, 2004 12:01 a.m. EDT
Next Tuesday you get to vote for President. Next Wednesday, the lawyers get to decide who won.
Why get upset? We've allowed the lawyers to ruin most everything else in American life--from the practice of medicine to the practice of prayer. Might as well let them drive the entire political system over the cliff.
"Right now we have 10,000 lawyers out in the battleground states on Election Day, and that number is growing by the day." So Michael Whouley told the Associated Press last week. Mr. Whouley is commander in chief of the division of lawyers Mr. Kerry has drafted to invade the voting precincts of Ohio, Florida and any other state still inhabited by enough free-thinking Republicans and Democrats to make the election there close.
Bob Bauer, counsel to the Democratic National Committee, said last month: "Our SWAT teams . . . will have done nothing but prepare through the fall. We want to be able to send teams out to fight these wars simultaneously."
SWAT teams? These "wars?" As Al Davis, the political philosopher who runs the Oakland Raiders, might have described the current state of our politics: "Just sue, baby."
Beyond this army of white shirts with a license to throw rocks at the vote, the Democratic rear brims with legal go-fers and spear-carriers. Yesterday Common Cause, which preposterously still identifies itself as "nonpartisan," sent out an e-mail announcing it will have teams of analysts--"including political scientists"--to take voters' phone calls about "registration problems, mechanical problems and voter identification issues, among others." The New York Public Interest Research Group, NYPIRG, says it is formally affiliating itself with the Common Cause effort.
Also yesterday the Department of Justice announced plans to send 840 federal observers plus 250 civil-rights division personnel across the country to "protect election-related civil rights." Some of the places on the watch-list are household words in the annals of election-day card tricks: Cicero, Ill.; East Chicago, Ind.; Shannon County, S.D. (the Pine Ridge Indian reservation, where the state's disputed 2002 Senate election ran aground); Passaic County, N.J.; Suffolk County, N.Y.; and most amusing of all, Manhattan itself.
The Republicans of course are massing their own army of litigators whose purpose is to "respond" (counter-sue) the moment after Mr. Kerry's lawyers file. (And people thought trial-attorney superstar John Edwards was brought on to the ticket for his charisma.)
At this rate, casting a ballot Tuesday will amount to little more than giving a deposition in the legal Armageddon that is the 2004 election.
Republican legal strategists expect the Wednesday-morning attack to come from Mr. Kerry's lawyers on two fronts: close states and minority precincts inside those states.
If a state result is close enough to challenge, Democratic lawyers likely would file suit in state or federal court, hoping to find a sympathetic judge who'd rule that Mr. Kerry had won the state. The assumption behind this strategy is that the U.S. Supreme Court will have no stomach in 2004 for revisiting Bush v. Gore on a Republican appeal. Liberal law academicians softened up the Justices by carpet-bombing Bush v. Gore with vitriolic public denunciations. Alan Dershowitz, characteristically, called it "the single most corrupt decision in Supreme Court history." If the Court abandons the field, a lower court judge's pro-Kerry state ruling could stand.
Randomized judicial assignments normally would make this a long-odds strategy, but if the Kerry lawyers file 12 state lawsuits, they need only one win to score big.
If the Democratic legal team needs votes to raise the nominal Wednesday morning total, the GOP's first-responders expect they'll sue to find them in minority precincts. For months the Democrats have been talking about "minority intimidation" at the polls. John Kerry himself said in July, "Don't tell us that disenfranchising a million African-Americans and stealing their votes is the best we can do in America."
This has loaded the intimidating burden of "racism" onto any Republican challenge to irregularities in minority precincts, for example over registration or the new "provisional" ballots. Under the new, paradoxically named, Help America Vote Act passed by Congress, a person can show up to vote, claim to be registered and force befuddled election officials to verify the truth of this assertion later. But the unlisted "voter" gets to vote.
Ohio is widely expected to be the Gettysburg in this partisan war. That's because many Ohioans still vote with punchcards. This is the source of the famous "undercount" phenomenon: a ballot with a clearly punched-out vote for sheriff, but an uncertain "punch" for President. A forced recount in one of these precincts has upside only for Mr. Kerry. If the precinct historically votes Democratic, the chances that any of the undercount is for Mr. Bush would be almost statistically zero and the chances for Mr. Kerry are huge--or so a local election official might conclude after being sued.
This scenario is almost certainly why Justice Department monitors are going to places like Wayne County (Detroit), Philadelphia County, Bernalillo County (Albuquerque) and eight world-famous counties in Florida.
I asked a noted expert on election law if there was an easy way to shut down the legal war once it starts. He said, "No." It would simply grind forward.
The easiest way to avoid this humiliation would be to produce a clear electoral college/popular vote win. And so Republicans are urging supporters beaten down by constant pistol-whippings from liberal friends in New York and California to get out and vote.
The second cleanest solution--once unthinkable--is to output an electoral-college tie and quickly let the House of Representatives elect George Bush. This is the political solution we should have gotten in 2000. In 2004 it probably would produce the street riots recently adduced by Mrs. Edwards. Still, that's better than letting the lawyers turn the United States' 55th presidential election into the laughingstock of Venezuela.
Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on OpinionJournal.com.
|