See you in Columbus!
"Swing State Swarm"
Lily Henning
Legal Times
10-12-2004
Richard Siehl isn't sitting this one out.
Four years ago, during the most hotly contested presidential election in history, Siehl was in the hub of the action on Election Day -- right in the middle of Florida.
The problem was that Siehl, a Republican lawyer from Columbus, Ohio, was in Florida tending to a client, not battling Democrats.
On Nov. 2, it will be different. He will be in Columbus -- in the heart of another swing state -- standing by at his office to advise Republicans on legal disputes that might arise in Franklin County, where Al Gore beat George W. Bush by 1 percent of the vote in 2000. "We are ground zero in the mother of battleground states," he says.
Siehl is at the vanguard of a new age in American politics, when a presidential election is viewed as much as an opportunity for lawyers as for voters. He's doing his duty in keeping by the telephone, part of what he calls a GOP "flying squad."
"It never occurred to me that I should stay in Ohio in 2000," Siehl says. A partner at Baker & Hostetler, he has organized a dozen Republican election law attorneys to be on call in Franklin County on Election Day. "But there's a big difference for me this year."
The difference, of course, is the vote recount in Florida four years ago and the Supreme Court's decision in Bush v. Gore, which ended the recount and, in effect, handed the election to Bush. The litigation surrounding the Florida recount four years ago drew high-profile lawyers from across the country. The legal effort this time around is overwhelmingly local.
"All politics is local," Siehl says. "Lawyers from Washington, D.C., might be brought in by either party, the hotshot experts. But they're going to go to court accompanied by local lawyers."
Ohio, along with a handful of other so-called battleground states, such as Pennsylvania and -- yes -- Florida, are test subjects of what can best be called an ongoing experiment in both law and politics. In a coordinated effort, teams of lawyers from state parties and the presidential campaigns of George W. Bush and John Kerry are working in states such as these, which have a significant number of electoral votes and were won by slim majorities in the last election.
"Lawyers will be reporting back to a much more organized structure this year than four years ago," says Christopher Malone, an election expert at Pace University in New York. "This time, it's a pre-emptive strike."
OHIO: THE HEART OF IT ALL
For Siehl and his Republican comrades in Ohio, pre-emption in large part involves preparing for litigation over recounts, as opposed to staking out polling places looking for disenfranchised voters, as Democrats say they plan to do.
But both Ohio Republicans and their Democratic counterparts are cagey about their legal strategies, unwilling to say how many lawyers they will deploy throughout the state on Election Day or to specify the voting districts they plan to target.
David Sullivan, the voter protection coordinator in Ohio for the Democrats, says that he won't comment on numbers because "it's not a useful exercise" and it "could help the opponent."
Even so, each side blames the other for the lawyering up.
"Democrats have been so aggressive about building this legal structure that they could employ on Election Day that they're essentially forcing us to do the same," says Ohio Republican Party spokesman Jason Mauk. "We can't stand by and allow them to throw the election into legal chaos without proper checks and balances and alternatives."
Democrats counter that they are reacting to attempts by Republicans in the 2000 election to suppress voting in some regions.
"We are not looking to legalize issues that don't require legalization," says Sullivan, the Democrat. "Our goal is to handle things with as much informality and flexibility as possible. We are in a purely defensive posture."
Phyllis Bossin, regional counsel for the Kerry campaign in southwestern Ohio, insists as well that her party's strategy doesn't center around the kind of litigation that marked the 2000 Florida recount. Local legal counsel will report to Bossin from each of the dozen counties in her region, she says.
"We aren't going to be standing there waiting to run to the courthouse and file lawsuits," says Bossin, who has her own firm in Cincinnati.
But that doesn't mean the action hasn't already started.
COURTING TROUBLE
Democrats filed suit Sept. 27 in Toledo, Ohio, against Secretary of State Kenneth Blackwell, opposing an order he issued Sept. 16 to county election boards, instructing them not to give provisional ballots to voters who appear at the wrong precinct on Election Day. Provisional ballots are ballots cast by voters whose names do not appear on rosters in the precinct in which they are trying to vote. The ballots are separated and reviewed so the voter's registration can be confirmed.
Democrats want voters to be able to cast provisional ballots at any polling place in the county in which they are registered to vote, even if they aren't in their own precinct. They say that Blackwell, a Republican, isn't interpreting the Help America Vote Act correctly, contending that Blackwell's order ignores a key provision of the act that encourages provisional ballots as a way to ensure that voters who are eligible to vote can do so.
The 2002 law was drafted partially in response to the recount meltdown in Florida. The most significant reform of federal election law since the Voting Rights Act of 1965, the legislation gives increased power to the states, withdrawing some of it from the counties, and mandates the use of electronic voting systems by 2006.
Citing the events of four years ago, some Democrats say they would rather avoid going to court altogether. Hence, a focus on monitoring votes, as opposed to litigating recounts.
"If we end up in litigation, we ultimately know what the answer is probably going to be: 5-4 against us," says Florida lawyer Mitchell Berger, who was part of the legal team that represented Gore in the high court case and who now is helping Kerry. "Litigation is not exactly my preferred strategy."
While Democrats argue that they want to protect voters and prevent problems so lawsuits aren't necessary, Republicans say they still must prepare to fend off what they say could be a barrage of litigation from Democratic lawyers.
Eric Buermann, general counsel for the Miami-Dade County Republican Party, says that "litigation goes with the territory" but that anticipating what form the lawsuits could take on Election Day ultimately is guesswork.
"It's hard to prepare when you don't know what someone might say in all of their creativity," Buermann says. "It's safe to say that the lawyers are boned up on the law, but we haven't typed up anything in advance."
There's money at the ready for such suits. On Sept. 30, the Federal Election Commission decided that both campaigns can use some of their campaign funds to cover any recount litigation costs.
According to FEC records, Bush had about $6 million and Kerry about $4.6 million in their legal funds at the most recent tally, at the end of August.
And both candidates are raising additional money.
In a letter posted on the Kerry campaign's Web site, campaign manager Mary Beth Cahill tells supporters: "[A]s the recount began, Al Gore's campaign was already outgunned, outmanned, and outmatched -- we learned one lesson: Be prepared. With the race so close in so many states, we need to be prepared for any possibility -- and that means being ready for any recounts." The GOP hasn't made a similar public appeal, but in 2000, Bush raised $14 million in the Florida dispute.
PENNSYLVANIA STATION
Ronald Hicks Jr., the solicitor for the Allegheny County Republican Party, says that he views his role as unambiguously local.
"We handle the nuts-and-bolts questions that arise on Election Day," says Hicks, a partner with Meyer, Unkovic & Scott in Pittsburgh, at the heart of Allegheny County.
But in many ways, Hicks is on the front lines of the national election in Allegheny County, where industrial jobs have dried up and drained the local economy and where voters often side with Democrats on economic issues and Republicans on social ones.
Gore won the county in 2000. This time around, Republicans are aiming at the county's suburban vote in neighborhoods with half-million-dollar homes and names like Squirrel Hill and South Hills, rather than its urban core, Hicks says.
With a staff of 12 attorneys, Hicks will be ready to answer any legal queries local Republican Party officials have on Election Day.
And any disputes that arise could be resolved quickly, since judges in Pennsylvania will work in shifts on that day and the courts will stay open until after the polls close at 7 p.m. to hear cases related to the election, he says.
One of the party's lawyers will also be present when the county elections board counts ballots -- which is when the lawyers can challenge absentee ballots. Hicks says that, in Pennsylvania, provisional ballots are counted by the county within a few days of the election, and a lawyer from the party will also be on hand and will challenge votes then, if necessary. He expects provisional balloting could "cause problems," since it is the first time that Pennsylvania will use the ballots in a general election.
FLOODING FLORIDA
And then there's Florida.
Two thousand lawyers trained by the Democratic Party will monitor the polls throughout the state, says Charles Lichtman, a partner at Mitchell Berger's firm, Berger Singerman, and special counsel to Kerry's campaign in Florida.
According to the Florida elections division, each party is allowed one monitor per voting precinct. The monitors must be registered to vote in the county in which they observe the election, the division says. So the Kerry campaign has searched for local lawyers.
Cori Flam, who will oversee legal observers in 11 counties in central Florida as special counsel to Kerry's campaign, says 100 lawyers, many of them Floridians, have responded to her request for Election Day volunteers.
"It's very important to have Florida lawyers," Flam says. "They know the lay of the land better and have a sense of the local community and local needs."
Flam is recruiting lawyers in counties like hurricane-ravaged Volusia and Broward to be a part of the party's legal effort in Florida. The response in those counties, where votes were manually recounted in 2000 and in which Gore won, has been strong, Flam says.
"People who didn't have power in their houses and their offices were calling me back because they wanted to help," Flam says.
Lawyers outside of the polls will wear hats and T-shirts identifying themselves as Democrats and legal professionals, she says. The law requires them to stand 50 feet from a polling place.
That means lawyers who aren't official poll monitors -- and there will be many -- will be hanging around polling places armed with BlackBerries and cell phones, reporting problems back to campaign legal teams.
That will be the case in other states, as well. "Assume everybody is going to be wired in to know what's going on," says Ohio's Siehl.
Berger, the Democratic lawyer, says that he will also place lawyers for the Kerry campaign in every county campaign supervisor's office on Election Day. That way, if a problem comes up at the polls, the campaign will have a direct line to the supervisors -- and presumably get faster answers than they did in 2000, he says.
"It was frustrating trying to contact supervisors and not getting phone calls returned," Berger says. "We're going to hold them accountable with respect to enforcing law the right way."
Of course, if the election itself isn't close, particularly in battleground states such as Florida, Pennsylvania and Ohio, much of the tension over vote counts and lawsuits could quickly dissipate.
"If one candidate is ahead by more than one-half of 1 percent, you're not going to go through that kind of effort," says Ohio's Siehl. "It's not worth the tens of thousands of dollars to engage in lengthy election litigation. It has to be close enough to matter." |
