It’s almost over. This is welcome news, because we’ve reached a point now where the 2008 presidential campaign and its sundry subplots (Hillary Clinton’s tears, Mitt Romney’s fibbing, Jeremiah Wright’s America-damning, Sarah Palin’s cheery xenophobia-mongering, etc.) feel like an affliction without beginning or end. In less than a week, though, the polling places will close, the votes will be tallied, and we’ll know, finally, who’s going to become the next president of the United States.
Or maybe we won’t. Right now, most polls seem to augur well for Barack Obama: with precious few exceptions, they suggest that he’ll rout John McCain in the Electoral College and become the first Democrat to win the presidency with a majority of the popular vote since Jimmy Carter.
Then again, Ohio is still in play. So is Florida, and North Carolina, and Colorado, and (judging from the McCain camp’s ongoing efforts there) Pennsylvania. If a last-minute twist or two (Joe Biden talking, Osama Bin Laden doing YouTube) nudges a few of these swing states into the McCain column, the putative rout could instead end up being painfully close.
And what then? In a recent sit-down with Fox News’s Chris Wallace, McCain suggested that, if he loses, he’ll gracefully retreat to his pre-campaign existence. “I have to go back and live in Arizona,” he said. “Be in the United States Senate representing them, a wonderful family, daughters and sons that I’m so proud of, and a life that’s been blessed.”
But a radically different picture emerged in an interview that former Missouri senator John Danforth, the co-chair of McCain’s “Honest and Open Election Committee,” did with National Public Radio. Judging from Danforth’s comments, the ongoing GOP fuss over the low-income advocacy group ACORN (the Association of Community Organizations for Reform Now) isn’t just a way to whip up the conservative base and dissuade newly registered Democratic voters. It’s also a possible prelude to post-election litigation aimed at reversing an Obama victory. As Danforth told NPR, “If there are a number of states where the election is close — and there have been many, many people registered by this organization ACORN — and where there are numerous cases of fraudulent registration, then the contest could go on for a very long time.”
So if you’re anticipating an Obama victory — or simply ready for the nonstop torrent of political white noise to finally end — you’d better hope that the outcome on November 4 is emphatic and unambiguous. Because if it’s not, we could be in for a battle that makes the 2000 Florida recount look tame.
Preparing for a meltdown
Not surprisingly, Democratic operatives aren’t eager to consider the possibility of the courts reversing an Obama win. During a recent conference call for reporters, I asked Joe Sandler, the Democratic National Committee’s general counsel, if he thought the GOP was preparing for post-election litigation. His reply — “I can’t speak to their motivation, but our view is that the administration of this election is going exceedingly well and being conducted with exceptional fairness.” — didn’t really answer the question.
Charles Lichtman, who’s heading up a 5000-lawyer Democratic team in Florida, was more direct. Post-election-day litigation “just doesn’t work,” he tells the Phoenix (an odd statement, since it worked out okay for George W. Bush in 2000). What’s more, Lichtman adds, a situation in which the election would again be decided in the courts is “almost a statistical impossibility.”
In fairness, no one thinks such a situation is likely, exactly. But other observers are more inclined to take it seriously. “What I’ve been telling people,” says Rick Hasen, a professor at Loyola Law School in Los Angeles and author of the Election Law blog, “is that they need to prepare for a low-risk chance of a catastrophe, just like you’d prepare for a nuclear meltdown. It’s very unlikely to happen. But the result would be so catastrophic that it’s prudent to take whatever reasonable precautions you can.”
Unfortunately, the precautions Hasen has been proposing for years — including, for example, clearer rules for counting provisional ballots and a shift toward nonpartisan election administration — haven’t been implemented. Consequently, if the election is close, there’ll be plenty of loopholes and ambiguities for the loser to exploit in hopes of becoming the winner.
By way of example, consider the battleground state of Ohio. Recent legal developments there seem to suggest that Ohio won’t be fertile ground for post-election wrangling. On October 17, the US Supreme Court sided with Ohio’s Democratic secretary of state Jennifer Brunner, and against the Ohio Republican Party, staying a temporary restraining order that the Ohio GOP had obtained against Brunner from the Sixth US Circuit Court of Appeals.
Here’s what happened: citing the 2002 Help America Vote Act (HAVA), the Ohio GOP had argued that Brunner should cross-check hundreds of thousands of new voter registrations against a state database — and then tell state election officials how to deal with registrations that didn’t have an exact match. Brunner, however, argued that such cross-checking could force thousands of legitimate voters to vote with provisional ballots — which are easily disqualified, and aren’t counted until 10 days after the election. Following the Supreme Court’s ruling, the Ohio GOP voluntarily withdrew their suit, opting instead to try to hammer out a settlement with Brunner.
