Election Day could go past Nov. 2

By Nancy Cook Lauer  Tallahassee Democrat  15 October 2004

Remember when "recount" meant to narrate, to tell a story in detail? Not so true anymore.

Welcome to the world of presidential elections. As Nov. 2 draws near, campaign coffers are swelling - and not just to pay for that last-minute push to bring undecided voters into the fold.

No, both Democrats and Republicans are looking ahead to that post-election challenge when the apparent loser in a close election will discover, lo and behold, that his voters were disenfranchised.

No one plans to be off-guard this year, as happened in 2000. The Democrats, as a matter of fact, have trained more than 10,000 lawyers to recognize that disenfranchisement when they see it and get to court forthwith to file a complaint.

Republicans are getting their post-election litigation plans together, as well, although they are less vocal about it.

In fact, among the two major parties, the international observers and the civil-rights groups, there may be more poll monitors at the polls come Election Day than voters themselves.

Practicing law

Democrats and some civil-rights groups have already been practicing their litigation in Florida, calling into question the lack of a paper trail on touch-screen voting machines, the law requiring that provisional ballots be cast in the correct precinct, and the state's plan to purge supposed felons from the rolls using an error-filled database.

The felon issue has been dispensed with - Secretary of State Glenda Hood gave in on that one - but the other lawsuits continue being fought in the courts. So many courts. A recent article in the Tallahassee Democrat recounted how five state and federal courts and a state administrative law judge all had their hands on one election case that remains unresolved.

It may be an election for president of the United States, but the power to conduct it rests almost entirely with the states.

Or so the law says. Some may remember the U.S. Supreme Court stepping into the fray four years ago and deciding that George W. Bush won the election in Florida.

State has authority

But the court was just interpreting Florida law, not imposing federal law onto the state, said Jack Maskell, a legislative attorney for the Congressional Research Service who last week published a report on who has the power to postpone a presidential election.

The U.S. Constitution, says Maskell, "clearly gives the authority to state legislatures to determine the manner in which electors are chosen." That's what former Florida House Speaker Tom Feeney said in 2000, when, in the midst of the hubbub over hanging, dimpled and pregnant chads, he convened the House to name electors for Bush.

Maskell's research found that there is no precedent for postponing a presidential election because of an emergency such as a terrorist threat or severe weather. States have been allowed to postpone congressional elections, however.

One thing is certain, though. Whether Election Day gets postponed or not, if it's at all close, it's sure to last well beyond Nov. 2.

See you in court!