[Mb-civic] The Coming Post-Election Chaos By John W. Dean

[Michael Butler]

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    The Coming Post-Election Chaos
    By John W. Dean
    FindLaw

     Friday 22 October 2004
 A storm warning of things to come if the vote is as close as expected.

    This next presidential election, on November 2, may be followed by
post-election chaos unlike any we've ever known.

     Look at the swirling, ugly currents currently at work in this
conspicuously close race. There is Republicans' history of going negative to
win elections. There is Karl Rove's disposition to challenge close elections
in post-election brawls. And there is Democrats' (and others) new
unwillingness to roll over, as was done in 2000. Finally, look at the fact
that a half-dozen lawsuits are in the works in the key states and more are
being developed.

     This is a climate for trouble. A storm warning is appropriate. In the
end, attorneys and legal strategy could prove as important, if not more so,
to the outcome of this election as the traditional political strategists and
strategy.

     Let's go over each factor that spells trouble - and see how they may
combine.

     A GOP Disposition for Nasty Campaigns

    Before this year's race, 1988 presidential race between George H. W.
Bush and Michael Dukakis was well-known as the most foul of modern
campaigns. The Bush campaign used Willie Horton to smear their way to the
White House - with Lee Atwater playing the hardest of hardball.

     Horton was a convicted murderer. Massachusetts Governor Dukakis gave
him a prison furlough. Once furloughed, Horton held a white Maryland couple
hostage for twelve hours, raping the woman and stabbing the man. By using
these facts - and Horton's mug shot - in a heavy-handed negative
advertisement, Atwater turned the election for Bush. As a Southern,
especially, he must have understood how the ad catered to racial prejudice.

     In the 2000 Republican primary race, George W. Bush used similar
tactics against Senator John McCain. That's no surprise: Bush's political
strategist Karl Rove, and Bush himself, were protégées' and admires of Lee
Atwater. To my knowledge, all of Rove's campaigns have accentuated the
negative - often dwelling exclusively on nasty attacks. This one is no
exception.

     Thus, if Bush narrowly prevails on Election Day, the Democrats are
likely to be in a less than congenial mood - and especially likely to go to
court. And there will doubtless be fodder for litigation, given the GOP's
propensity to try to disqualify votes and voters.

     The GOP's Campaign Tactic of Attempting to Disqualify Votes and Voters

    In 1986, former Assistant United States Attorney James Brosnahan (today
a noted San Francisco trial attorney) testified - based on an investigation
the Justice Department had dispatched him to conduct - that as a young
Phoenix attorney, Justice William Rehnquist had been part of conservative
Republicans' 1962 efforts to disqualify black and Hispanic voters who showed
up to vote. Brosnahan's testimony was supported by no less than fourteen
additional witnesses. Rehnquist nevertheless became Chief Justice - thanks
to the continued support of conservative Republicans.

     During the 1964 Goldwater versus Johnson race, when I first heard of
such tactics, I was appalled to hear friends bragging about excluding
Johnson supporters from voting. Later, when I found myself working at the
Department of Justice for Richard Kleindienst, we discussed such tactics.

     Kleindienst served as director of field operations for Goldwater in
1964, and for Nixon in 1968. Remarkably, Kleindienst confided that he had
engaged in fewer dubious tactics in 1968 than in 1964. If such efforts were
mounted by the Nixon campaign in 1972, when I had a good overview of what
was going on, I am not aware of it.

     Even Nixon had his limits, and he was more interested in wooing white
Southerners into the Republican ranks. He did so, successfully, when such
Southern Democrats stalwarts and pillars of bigotry and racism as Senators
Strom Thrumond and Jesse Helms joined the GOP. They renewed the party's
effort to disqualify voters who, and votes, that did not see the world as
Republicans did. The racism became less blatant. After all, it had become a
crime - which called for new tactics. Yet the revised stratagems were (and
remain) anything but subtle.

     The 2000 presidential race in Florida is an excellent example.
Reportedly, Bush's Florida victory came courtesy of 537 votes out of some
six million. It's plain from this slim margin that the GOP's voter and vote
disqualifying tactics cost Vice President Al Gore the presidency. (In the
October 2004 issue of Vanity Fair, an excellent article entitled "The Path
To Florida" explains how the Republicans nullified and disqualified
literally hundreds of thousands of Florida votes.)

     This lesson has not been lost on the Democrats - who are likely to
refrain from conceding if they are losing in 2004 until all of the dubious
disqualifications in closely-won swing states are sorted out.

     Rove's Refusal to Accept Defeat: The Knee-jerk Response of Suing

    And it won't only be the Democrats heading to court. Indeed, in Florida
in 2000, it was Bush who sued first - while later falsely accusing Gore of
starting the litigation.

     Contrary to popular belief, it wasn't merely the closeness of the
tallying in what appeared to be unique circumstances in Florida that spawned
litigation. To the contrary, suing is a standard operating procedure for
Karl Rove when he is losing (or has lost) a race.

     A recent profile of Karl Rove in the November 2004 Atlantic Monthly,
entitled "Karl Rove In A Corner," examines how Rove operates in a close
race. While Rove has had only a few, his tactics are never pretty.

     The article describes "Rove's power, when challenged, to draw on an
animal ferocity that far exceeds the chest-thumping bravado common to
professional political operatives" - and notes that "Rove's fiercest
tendencies have been elided in national media coverage."

     Consider Rove's role in a 1994 judicial campaign for the Alabama
Supreme Court. Election returns showed his candidate had lost by 304 votes.
But Rove went to court - not only suing to overturn the election, but at the
same time, further campaigning to garner support for these efforts.

     These maneuvers went on and on and on. Rove's candidate and his
opponent both appeared for Inauguration Day ceremonies, although neither was
seated. Rove moved the matter from state to federal courts. And he appealed
whenever he could - all the way up to the U. S. Supreme Court, which stayed
the case almost a year after the election. In the end, Rove's man won -
purportedly by 262 votes.

     Doubtless, Rove was similarly prepared to take Bush's 2000 lawsuits as
far as necessary. Had the U.S. Supreme Court bumped the case back to the
Florida Supreme Court, and allowed the recount to conclude, doubtless Rove
would have again challenged the recount - all the way back up to the U.S.
Supreme Court if necessary.

     Make no mistake: If Bush loses, and it is very close, Rove will want to
litigate as long as possible, going to the U.S. Supreme Court (again) if
possible.

     Still Too Close to Call: The Conspicuous Closeness of the 2004 Race

    So far, no incumbent modern president has won or lost in a squeaker.
Even races that looked close in the polls were subject to a last-minute
surge in one direction. But we are now ten days away from the 2004 election,
with no surge yet in evidence.

     A late "October Surprise" might change that. Osama's arrest would
likely cause a surge for Bush. New and unequivocally damning evidence about
the justification for the Iraq war could create a surge for Kerry. (Suppose,
for instance, it became incontrovertible that, for instance, Bush and Cheney
knew that Saddam not only did not have WMD but also had terminal cancer.)

     Still, without such a surprise, this race may be an historical photo
finish. The electoral is deeply dived. Most of the undecided are now
decided. So a true surge for either candidate is unlikely.

     There is one wild card: Both sides - as well as many independent groups
- have recently registered hundreds of thousands of new voters.
Historically, newly registered voters have often not voted in the first
election for which they were eligible. But that could change; it's
impossible to know.

     Exactly how close will the race be? Of course, polls are an imperfect
measure, and they tend to be less reliable the closer it is to Election Day.
Still, as I write, and based on the consensus of polls I believe
(historically) the most reliable, the situation appears to be this:

     There are a total of 538 electoral votes. A simple majority of 270
wins. (If the candidates tie at 269, the tie is broken by the House of
Representatives.)

     President Bush seems to have a lock on 176 electoral votes from twenty
states: AL-9, AK-3, AZ-10, GA-15, ID-4, IN-10, KS-6, KY-8, LA-9, MS-6, MT-3,
NE-5, ND-3, OK-7, SC-3, TN-11, TX-34, UT-5, VA-13 and WY-3. Senator Kerry
seems to have a lock on 153 electoral votes in ten states and the District
of Columbia: CA-55, CT-7, DE-3, HI-4, IL-21, MD-10, MA-12, NY-31, RI-4, VT-3
and DC-3.

     Six states with 51 electoral votes tilt toward Bush: AR-6, CO-9, MO-11,
NV-5, NC-15 and WV-5. But six states with 63 electoral votes lean toward
Kerry: ME-3 (note that Maine apportions its four electoral votes, and one
vote still appears to be up for grabs), MI-17, MN-10, NJ-15, OR-7 and WA-11.

     Suppose all the tilting states indeed go in the direction in which they
are tilting. That gives Bush/Cheney 227 electoral votes, and Kerry/Edwards
216 votes.

     There are still eight true swing states. In total, they have 95
electoral votes: IA-7, FL-27, ME-1, NH-4, NM-5, OH-20, PA-21, and WI-10.

     It is in these states that election 2004 will ultimately be resolved -
either in the voting booths, or in the courts. And note that none of these
states, alone - even Florida, with its 27 votes - will give either candidate
a win.

     That means we could see simultaneous litigation in a number of states -
chosen either because the polling was especially close, or because there are
significant numbers of vulnerable votes to try to disqualify. It will be
recalled that the possibility for multi-state litigation arose in 2000,
before Florida became the focus; it could easily become a reality in 2004.

     An Election for Attorneys: Neither Side Will Budge If Litigation Begins

    When I discussed this situation with several attorneys on both sides, I
realized none are likely to back down. The Democrats intend to play hardball
to win this time; the Republicans feel that Democrats aren't adhering to the
letter of the law in registration efforts - and want to hold them to it.

     It is impossible to get a complete count, but it appears that at least
10,000 - and possibly as many as 150,000 - attorneys, paralegals and law
students will be working as observers, or handling election problems, on
November 2 - just in the swing states. They have been trained in the
relevant state's election laws, and they will focus on the casting and
counting of votes.

     With so many legal minds looking for problems and such combative
attitudes on both sides, litigation seems inevitable - especially if the
November 2 tally is close. And if litigation starts, it won't stop soon: A
game of litigation chicken - testing who will fold first - seems likely,
with each party bent on holding out.

     The Nightmare Scenario: An Election up in the Air for Months

    It may be days or weeks, if not months, before we know the final results
of this presidential election. And given the Republican control of the
government, if Karl Rove is on the losing side, it could be years: He will
take every issue (if he is losing) to its ultimate appeal in every state he
can.

     The cost of such litigation will be great - with the capital of
citizens' trust in their government, and its election processes, sinking
along with the nation's (if not the world') financial markets, which loathe
uncertainty. After Bush v. Gore, is there any doubt how the high Court would
resolve another round? This time, though, the Court, too, will pay more
dearly. With persuasive power as its only source of authority, the Court's
power will diminish as the American people's cynicism skyrockets.

     It does not seem to trouble either Rove or Bush that they are moving us
toward a Twenty-first Century civil war - and that, once again, Southern
conservatism is at its core. Only a miracle, it strikes me, can prevent this
election from descending into post-election chaos. But given the
alternatives, a miracle is what I am hoping for.

     John W. Dean, a FindLaw columnist, is a former counsel to the
president. 

 

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