Lawyers, e-voters, chads Oh my!

Teams assemble to jump into potential Florida-like problems before vote count starts

By Ian Hoffman, San Mateo County Times    31 October 2004

Americans learned in 2000 that watching recounts and courts decide a piano-wire tight election like the making of laws and sausages is not for the faint-hearted.

Yet four years later, they're as fixated as spectators at a trainwreck. Thousands, in fact, are rushing into the mayhem, not just for better seats but to jump in front of the train, seize the controls or at least tend the wounded.

It only begins with 10,000 Democratic election lawyers, plus seven litigation SWAT teams staged by fueled jets to deploy at a word from John Kerry, and an equal mobilization of Republican lawyers, an army rarely described to avoid the political image as the litigious party.

In military terms, the nation is shaping up as a battleground between the equivalent of two Army divisions of lawyers, trading charges of Democratic registration fraud and Republican voter suppression.

"They're basically able to fight four major legal wars simultaneously," said law professor Jonathan Turley of George Washington University. Partisan legal strategy calls for the loser to litigate any state's outcome if the vote difference is less then two percent, he said. "It's possible we could have not one but four major Floridas this time and the two parties are prepared to do just that."

Beyond them are three more divisions 6,000 lawyers and 25,000 tech wizards and civil-rights activists jetting on their own dime from California, New York and other states relegated by polls to the election sidelines. They're mostly working for the Election Protection Coalition, an assemblage of mostly left-leaning organizations now sworn to nonpartisanship.

"At the end of the day, if it's more politically expedient to ignore disenforcement in one community, that will be the decision of the parties. But that's not part of our calculus," said Vicky Beasley, national legal recruitment coordinator for the coalition.

Adding to the fray: two teams of international elections monitors and countless observers from nonprofit organizations.

At least eight giant law firms two of San Francisco's five largest among them are unleashing hundreds of attorneys pro bono to take voter complaints and fan out to battleground states. In San Francisco alone, three shifts of lawyers will juggle 120 toll-free phone lines at two call centers serving all 13 states of the American West. The largest number are coming from the Boston firm of Bingham McCutchen.

Voters in some swing-state precincts will be outnumbered by election observers, media and lawyers.

They're armed with laptops, cell phones, "election incident reporting" databases and emergency petitions to keep polls open in the event of broken down equipment or long lines due to registration challenges.

The chief lawyers in each swing state are known as commanders and their leader, Jonah Goldman of the Lawyers Committee for Civil Rights Under Law, has insisted in jest that he be addressed as "supreme allied commander." Together, they and voters will make 2004 the most scrutinized election in U.S. history.

But the mechanics of democracy are too gross to stand that examination, and Americans may have to get used to multiple courts in multiple states deciding who their president will be.

"The election will be a tie no matter what, and democracy is not very good at how that tie gets broken," said law professor Burt Neuborne of New York University. "Laws are for breaking those ties."

Still, some observers fear they will miss a telling piece of ugliness vote fraud, disenfranchisement or the subtle, low-key reprogramming of electronic voting machines, the boast of two separate teams of mercenary hackers.

"Our central concern is that there are problems we can't see," said Matt Zimmerman, staff attorney at the San Francisco-based Electronic Frontier Foundation and leader of a specially trained band of lawyers watching for problems with electronic voting. They've been given crash courses in the top seven types of e-voting machines, the symptoms of their failure and ways to keep polls open if the machines do break down.

"It's very important work, but it's still working around the edges," Zimmerman said.

Most of these reformists hail from the left, though a surprising number are Republican, libertarian or moderate. Most signed a nonpartisan oath to aid voters of any stripe. To listen to them, they have been nursing unease, if not anger, over the Florida debacle of 2000 and every missed chance at election reform since. Congress and the White House wrote a $3.9 billion check for voting reforms but ped the ball on implementation.

Now it's their turn.

Maame A.F. Ewusi-Mensa, a Yale-trained litigator at San Francisco's largest firm, Morrison Foerster, was shocked to hear of fliers distributed in inner-city neighborhoods warning people that if they hadn't paid their rent and went to vote, they could be arrested. Other flyers reminded voters "Don't forget to vote Nov. 3!"

A beneficiary of yesteryear's civil-rights crusades, she saw volunteering in the 2004 elections as a debt repaid.

"It just blew my mind," she said. "It was so wrong, and I felt there was something I could do as an attorney to help. And I liked the idea that it was nonpartisan."

Robert Brownstone, technology manager for Fenwick & West's Silicon Valley office, pulls out an oft-quoted statistic from 2000 2 million votes uncounted.

"As a lawyer and a citizen that creates a lot of anger on my part and a sense of injustice," he said. "In terms of what I'm ready to do, I have to put my partisan feelings aside to the extent I have any."

San Francisco solo practitioner Robert Schwartz decided the time for talking was over.

"I was angry about it. It just didn't seem right that the leadership of our country was decided in a way that everyone who voted didn't get their vote counted," he said. "I just thought to myself, 'It's time you do something rather than just complaining to friends that things are so screwed up or sending some money to an organization."

Today, he's in Broward County, Fla., at the center of controversy over thousands of lost absentee votes and a deceptively arcane e-voting issue zero tapes.

Legal experts suggest that one of the most serious drawbacks and boons of electronic voting the unambiguous reproduction of the same results, again and again could moot post-election suits over touchscreens that appear to be operating normally.

There are certainly going to be challenges, said GWU's Turley. But it leaves the court in a bind. These machines seem almost designed to prevent meaningful challenges by denying courts any evidence.

Lawyers volunteering for nonpartisan aid to voters say they don't anticipate being drawn into protracted court battles. Rather, they expect to intercede on voters' behalf to protect them from specious registration challenges, voting-machine breakdowns, intimidation and polling delays.

We're definitely hoping for a deterrent effect, said Ewusi-Mensa.