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JOHN FUND ON THE TRAIL

This Time, Get It Right

Instead of "lawyering up," both parties should be working to prevent another Florida.

June 21, 2004

Ronald Reagan's death led warring political camps to call a temporary truce. Everyone seemed to agree that politics back in Reagan's era weren't quite as much of a blood sport and that a return to some civility and cooperation across party lines would be welcome.

As the presidential campaigns pick up their brickbats again, it's time to look toward November and see if we might avoid recounts, lawsuits and challenges. But the campaigns are preparing for another Florida. "Both sides are lawyering up and we could see Florida-style challenges in every close state," says Doug Chapin of Electionline.org, which monitors electoral reforms.

The level of suspicion between the two parties is greater than ever. John Kerry says he believes Al Gore "won" the 2000 election and has assembled a team of 2,000 lawyers to "challenge anyplace in America where you cannot trace the vote and count the votes." Republicans have their own legal team to combat fake voter registrations, absentee-ballot fraud and residents of nursing homes being overly "assisted" to cast votes. Maria Cardona of the New Democrat Network dismisses such concerns, saying "ballot security and preventing voter fraud are just code words for voter intimidation and suppression." Liberal legal groups are suing to set aside laws in some of the 11 states that require photo ID at the polls on the grounds they discriminate against the poor and minorities.

It doesn't help that the federal government is way behind in implementing the Help America Vote Act. HAVA is designed to distribute $3.9 billion to the states for election improvements, but many states will be in no better shape come November than they were in 2000. Some 50 million Americans will vote on ATM-style touch-screen machines, but many of those will lack a paper trail. Internet chat rooms and talk radio shows are filled with speculation that these "black boxes" won't count votes properly. In January, a special election in Florida was decided by 12 votes, but touch-screen machines failed to record the votes of 134 people who signed voting registers. No recount was possible; there was no paper trail.

In a rare example of bipartisan agreement, Reps. Rush Holt (D., N.J.) and Tom Davis (R., Va.) both back amending HAVA to require voting systems to produce a verifiable paper record. Sen. Hillary Clinton, who supports a Senate version of the idea, says another contested election will cause people to "fundamentally lose confidence in our democracy and in their vote."

More bipartisan approaches are needed if we are to avoid a legal quagmire of election through litigation this November. Last week Ed Gillespie, chairman of the Republican National Committee, sent a letter to Terry McAuliffe, his Democratic counterpart, suggesting they find ways the two parties can work together to protect the integrity of the election process.

One of his ideas is that in close battleground states each party identify precincts where it fears there will be problems on Election Day. "Each of us would be responsible for recruiting a volunteer for each named precinct," he wrote. "Similarly bipartisan teams would be assigned to cover multiple precincts to respond to and investigate reports of problems. The teams would agree on avenues of appeals that could be taken to the courts, if needed." Journalists could be embedded with the teams, à la the Iraq war, to report on developments. This wouldn't eliminate the threat of lawsuits, but it would surely reduce it.

Donna Brazile, who served as Al Gore's campaign manager in 2000 and shares his outrage over the 2000 Florida outcome, nonetheless believes the two parties have some common interests. "Both should want every voter having information and training to cast a ballot that counts," she says. "And if that's done, both parties should support steps to ensure every vote cast is a valid and proper one."

Mr. Gore's decision to contest the Florida election in 2000 until the bitter end may have permanently changed the way close elections are decided, in much the same way that judicial nomination battles have changed. If the election is close this November, endless lawsuits and recriminations could poison of public opinion and create a climate of illegitimacy around any final winner. Voters are used to having the final word in an election. Let's take steps to keep it that way, so we can minimize the use of scorched-earth tactics of trial lawyers to settle elections. The Floridification of our politics isn't something anyone should want.

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