Legal eagles preparing for voting challenges

By Alan Gomez

Palm Beach Post Staff Writer

Monday, November 01, 2004

WEST PALM BEACH ? With four years to learn from the mistakes and successes of the 2000 presidential election debacle, Republicans and Democrats have adopted the same strategy to handle potential problems coming out of Tuesday's race ? more lawyers.

The core group of attorneys who battled before the Florida Supreme Court and dragged the 2000 election on for 37 days remains largely intact. But those attorneys will be so hidden that one Democratic attorney joked they will spend election day holed up in Vice President Dick Cheney's "undisclosed location."

Voters, however, are likely to get a close-up look at the new lawyer recruits brought in for this election ? thousands of volunteer attorneys who will be monitoring precincts and challenging the qualifications of voters trying to cast their ballots.

Democrats estimate they have 3,000 volunteers in the state, and while Republicans won't give a number, they say it is comparable.

In any one precinct, voters may see Republican observers holding lists of voters they feel are not eligible and Democratic observers ready to challenge those challenges.

They may also see federal Department of Justice observers who are being mobilized across the country and federal prosecutors throughout the state.

And, just maybe, they'll even see observers from watchdog groups such as the People for the American Way Foundation and the NAACP, who have combined with other groups to form the Election Protection Coalition.

Even with all those attorneys and observers, there still is a chance that one candidate wins in a landslide, making legal challenges almost meaningless, or the election process runs smoothly enough in a tight election that the loser won't carry the election into the courtroom.

But Democratic and Republican attorneys see that as a fantasy.

"I think people are hoping that there won't be litigation," said Stephen Halpert, a University of Miami law professor who is lending his expertise on absentee ballots to the Republicans. "Maybe they hunger for a time when people who are down thought about the welfare of the country and decided that the uncertainty that would be created by voting challenges simply wasn't worth it. But after 2000, who knows?"

Accusations fly back, forth

Not surprisingly, the question of who will fire the first post-election legal volley is answered along party lines.

"We are trying to prevent litigation from occurring," said Mitchell Berger, one of the high-ranking Democratic attorneys gearing up for the election. "We want a bright, sunny day and everyone voting. They want a dark, cloudy day where people are turned away from the polls."

Republicans counter that it is the Democrats who are plotting their pleadings.

"They know they have many more friendly judges than lawyers, and they know they can't win a straight-up election, so they're attempting to destroy the election with lawsuits," said Sid Dinerstein, Republican Party chairman for Palm Beach County.

Election issues already have been litigated in recent weeks. Argued and largely settled were questions surrounding the validity of provisional ballots and the fairness of having 15 counties voting with touch-screen electronic voting machines while the rest of the state is using scanned paper ballots.

Similar issues have been wrestled with in courtrooms in other swing states, and judges across the country have ruled differently on several key issues.

That does not bode well for those hoping to know who their president is by the end of Election Day.

In Palm Beach County, one of the most heated spots during the 2000 recount, courthouse personnel are gearing up for a possible repeat. Officials have d their media regulations, and Chief Judge Edward Fine issued an administrative order last week allowing the clerk of the court to post any election-related lawsuits on the Internet.

Bob Jarvis, author of a book chronicling the 2000 recount and a professor at Nova Southeastern University, said their efforts could very well be needed, as the razor-thin margin of victory predicted by pollsters could lead to another legal onslaught.

"I think there is very good reason to be afraid if the pollsters turn out to be right," Jarvis said. "Because if they turn out to be right... there will be a lot of lawsuits."

Voters can expect scrutiny

With many of the pre-election issues mostly resolved for the time being, the focus now turns to figuring out which issues could extend Tuesday's election past Tuesday.

The basis of many of the arguments is simple: Democrats want everyone eligible to vote to do so, while Republicans want to make sure that only properly registered voters are voting, and only once.

Republicans are openly concerned that people who are ineligible to vote will be sending in fraudulent absentee ballots and flooding precincts on Tuesday, swaying the vote toward Sen. John Kerry.

Atop the list of potential trouble issues is the provisional ballot.

Called by some the potential hanging chads of the 2004 election, provisional ballots are cast for several reasons, as when someone successfully challenges the qualifications of a voter.

Poll watchers are allowed to challenge the qualifications of a voter ? with disqualifications including a false address, a felony record or mental incompetence ? if they have evidence to support their argument. The challenged voter can cast a provisional ballot that later goes before the peering eyes of the county canvassing board members.

Republicans also will be watching for voters who are registered to vote in two places. Tens of thousands of Palm Beach County residents are registered in the county and in areas surrounding New York City, causing Republicans to worry that they will try to vote twice.

"It's a felony to be registered in both states," local GOP Chairman Dinerstein said.

But Democrats call that stance ridiculous.

"That's not a problem," Berger said. "It's America. People move. It's only a felony if they try to vote twice."

County Judge Barry Cohen, chairman of the Palm Beach County Canvassing Board, has said he won't allow mini-trials when determining the validity of each provisional ballot. But attorneys feel he, and other judges faced with those ballots, will have to.

Add the fact that the Florida Supreme Court ruled provisional ballots cast in the wrong precinct will not be counted ? a finding mirrored by 27 other states, but rejected by 17 states ? and provisional ballots could become a post-election hold-up.

"Many experts believe that if there is a scenario for extending the election past Election Day, that's the scenario," Democratic attorney Kendall Coffey said.

The list goes on

Attorneys also worry about the accounting of absentee ballots.

"It's a very inherently problematic way of doing things," said Halpert, the absentee expert helping the Republicans. "They're an issue in every election."

Also at issue is the fact that 15 Florida counties will vote on touch-screen machines while the rest of the state works on the paper system.

That issue was raised by U.S. Rep. Robert Wexler, who sued the state claiming that paperless voting was unconstitutional. A federal judge called Wexler's claim "logical," but said it was not the issue and threw out the suit.

Lida Rodriguez-Taseff, a Miami attorney who heads the Miami-Dade Election Reform Coalition, will be concentrating on the poll-closing procedures on Election Day.

She said that moment, when poll workers tabulate the day's votes, is one that is not monitored closely enough.

She said the simple task of comparing the number of signatures of people who signed in to vote with the number of total votes spit out by the machines are not routinely done.

"Seventy precincts didn't do that comparison" during the primaries, she said. "It's amazing to me."

Other issues that may arise are voter intimidation and the accessibility of polling sites.

The combination of all those factors has everyone in the legal community on edge.

Secretary of State Glenda Hood's office is preparing for the onslaught.

Her spokeswoman, Alia Faraj, said more than 200 reporters from around the world have requested credentials to watch the stand-off firsthand in Tallahassee, and Hood's team of attorneys are ready to respond to any suits.

"We expect that there will be challenges, but we are prepared to continue to defend Florida law," Faraj said.

Add possible lawsuits in other swing states, and an Election Day decision seems increasingly impossible to imagine.

"Those are just our variations of the problems that every state has," said Jarvis, the Nova professor. "The day after whichever side loses, if it's very close, they have all these ways of saying, 'Look at these people who voted who shouldn't have voted,' or, 'Look at these people who didn't vote who should have voted.' So it can happen anywhere.

"And will it be here in Florida? Absolutely."