The Clinton Herald, Clinton, Iowa

AP story section

November 2, 2012

Campaigns lawyered up for election overtime chance

MIAMI — Legions of lawyers are ready to enter the fray in case Election Day turns on a legal challenge. One nightmare scenario would be for the results in a battleground state like Florida or Ohio to be too close to call, with thousands of absentee or provisional ballots yet to be counted.

The key, experts say, is whether the difference in votes between the two candidates is within what’s known as the “margin of litigation” — that is, the number of outstanding votes must be much greater than the margin separating Obama and Romney when the smoke clears. And, it must be in a state that’s decisive.

“You’d have to have a state whose Electoral College votes are absolutely pivotal or there would have to be a massive problem involving voters,” said Richard Hasen, law professor at the University of California, Irvine, and founding editor of the Election Law Journal. “There not only have to be problems in an election. They have to be widespread enough or the margin close enough that litigating would actually make a difference.”

Legal and campaign officials on both sides say lawyers are poised at both the national level and in the key states to respond immediately if a court challenge is needed. The political parties have gained a lot of experience in legal fights over U.S. Senate and House seats. The last major legal battle over the presidency was the 2000 race, settled by the U.S. Supreme Court favoring George W. Bush over Al Gore.

On the Republican side, Washington attorney Benjamin Ginsberg leads the team. Ginsberg was deeply involved in the 2000 court fight as national counsel to the Bush campaign. Ginsberg is assisted by Kathryn Biber, the Romney campaign’s general counsel, and Lee Rudofsky, who is the campaign’s Election Day operations director.

Calling the shots for the Democrats is Robert Bauer, another well-known Washington lawyer, who is a former Obama White House counsel and Democratic National Committee attorney. Bauer oversees hundreds of lawyers who have volunteered to set up shop in “boiler room” operations in battleground states and across the country.

Both sides will have local attorneys on the team as well.

The Obama campaign also has built up a computerized system to track Election Day incidents in real time. Democratic poll monitors and operatives can call in incidents as they occur and the computer-based system will quickly give campaign officials in Chicago the ability to track and compare the reports and respond quickly.

“No one’s going to be flat-footed here, or for that matter anyplace else,” said Stephen Hunter Johnson, general counsel to the Miami-Dade County Democratic Party. “Whatever the challenges are, we’re up and ready.”

Lawyers will observe at targeted polling places, joined by tea party activists and voting abuse critics on the Republican side and civil rights and union groups on the Democratic side. And in crucial battleground states such as Ohio, Florida, Wisconsin and Virginia, Republicans have added legal and political muscle from governors, secretaries of state and GOP-dominated legislatures.

Some legal skirmishes have already begun. Bauer, for instance, wrote this week to Wisconsin’s secretary of state raising questions about reports that some Romney poll watchers were being trained with information that could mislead or intimidate voters. State officials said they did not find evidence of egregious transgressions, but the issue could resurface in a potential postelection legal fight.

Election law experts say it’s most likely that litigation over the presidency would come down to Florida or Ohio and probably involve either absentee ballots or provisional votes, meaning those that must be verified later by local election officials for a variety of reasons, such as a voter showing up at the wrong precinct, not having proper identification or having their eligibility to vote called into question by a poll watcher.

Edward Foley, director of the election law program at Ohio State University, came up with a hypothetical scenario in which Romney leads Ohio by 10,000 votes the day after the election — but there are 150,000 outstanding provisional ballots that must be examined. Ohio law gives voters 10 days, until Nov. 17, to provide officials with any information needed to show they are eligible to vote.

Under this scenario, if Obama were trailing, Foley said the president’s legal team would try to “rescue” as many provisional ballots as possible and likely would head to court to obtain lists of voters’ names they could contact. A similar fight took place in Washington state in a 2004 Senate race, he noted.

“It would not surprise me if there emerged a legal tussle over the availability of this information,” Foley wrote in a recent article on the scenario.

That would mean Americans might not know the identity of their next president until well into November.

The provisional votes also could come up in Florida, the other big battleground state. University of Florida political science professor Daniel Smith noted than in the August primary about 22 percent of all provisional ballots were rejected by local canvassing boards. That too could become a source of court battles over the validity of such rejections, if the initial outcome in Florida is close enough.

“There’s no question we’re going to have a boatload of provisional ballots as well as overseas ballots that are not going to be tabulated until after Nov. 6,” Smith said.

Sometimes evidence of election problems doesn’t lead to litigation, even though it could. In 2004, Democratic nominee John Kerry initially refused to concede because of issues with provisional ballots and other problems in Ohio. But the day after the election, when Bush’s lead in the state swelled to about 100,000 votes, it was clear a court fight wouldn’t matter and the Democratic lawyers backed off.

It’s all about the margin, said Johnson of the Miami-Dade Democrats, who said:

“Litigation can be expected unless there’s a clear outcome on Election Day.”

 

1
Text Only
AP story section
  • Iraq violence threatens OPEC's precarious balance NEW YORK (AP) -- The oil market has balanced out quite nicely for OPEC in recent years. Now, upheaval in Iraq shows that balance may be more precarious than it has seemed. Dramatic changes in oil production around the globe have offset each other ins

    June 13, 2014

  • Board of Trade Grain mixed, livestock mostly higher CHICAGO (AP) -- Grain futures were mixed Thursday in early trading on the Chicago Board of Trade. Wheat for July delivery was 1 cent higher at $5.9025 a bushel; July corn was 1.25 cents lower at $4.4075 a bushel; July oats were unchanged at $3.4625 a

    June 13, 2014

  • Health campaign among nation's costliest CHICAGO -- President Barack Obama's home state agreed to spend $33 million in federal money promoting his health care law, hiring a high-priced public relations firm for work that initially was mocked and spending far more per enrollee on television

    June 13, 2014

  • Some states roll back teacher tenure protections WASHINGTON (AP) -- Even before a judge's scathing ruling against California's teacher tenure policies, the once-sacred protections that make it harder to fire teachers already had been weakened in many states -- and even removed altogether in some pl

    June 13, 2014

  • Tigers' Scherzer outduels Sale CHICAGO -- Max Scherzer already has a Cy Young Award. Now he has a complete game. Scherzer tossed a three-hitter in his 179th career start for his first complete game and Victor Martinez hit his 16th homer to lead the Detroit Tigers to a 4-0 win over

    June 13, 2014

  • $40M casino for rural Iowa approved BURLINGTON (AP) -- The Iowa Racing and Gaming Commission has voted 3-2 to grant a license for a $40 million casino development that would be located in rural central Iowa. Supporters of the Jefferson casino burst into applause during a meeting in Bur

    June 13, 2014

  • Principal case leads to two hearings RED OAK -- Two hearings are planned related to a southwest Iowa school district's plan to fire a high school principal. The Council Bluffs Daily Nonpareil reported the effort to fire Red Oak High School Principal Jedd Sherman will be the subject of a

    June 13, 2014

  • U.S. split outgrows voting booth WASHINGTON (AP) -- Political polarization in America has broken out of the voting booth. A new survey from the Pew Research Center finds Americans are divided by ideology and partisanship not only when they cast ballots, but also in choosing where to

    June 13, 2014

  • Cubs' offense no help for Samardzija PITTSBURGH -- Jeff Samardzija has some advice his pitching brethren when it comes to facing streaking Andrew McCutchen. Don't. The way the Chicago Cubs' ace looks at it, trying to get the Pittsburgh Pirates' star out at the moment only opens yourself

    June 13, 2014

  • State to reopen Juvenile Home DES MOINES -- A district court judge on Wednesday ordered the state to reopen the Iowa Juvenile Home, telling Gov. Terry Branstad he cannot unilaterally change a law approved by the state Legislature. Judge Scott Rosenberg said the home in Toledo was

    February 6, 2014

AP Video
Facebook
National News