Two, Three, Many Floridas
It's statistically improbable that we could have another post-election presidential selection for, oh, another century or so. The prospect of two in a row is one of those things--like a plague of frogs--that can drive you into an obsessive reading of the Book of Revelations.
But if, on November 3, the outcome in the electoral college is again in doubt in one, two, or three key states, you can expect a raft of litigation that could make what happened in Florida last time look like a moot court tournament.
So says The New York Times, in a front-page piece today that's as interesting as it is depressing. "The legal preparations," says James Dao, "are very real--and very large. With more than two weeks to go before polls open, lawyers recruited by the two parties and independent groups have begun flooding into Ohio, Florida, Pennsylvania, and other swing states. Already, those lawyers are preparing strategies to challenge new voters at the polls, to keep polling stations open late if lines are long and to demand recounts if victory margins are razor-thin."
Some of this activity simply reflects the ancient desire of Democrats to maximize opportunities to vote and have votes counted, and the equally ancient Republican desire to minimize such opportunities, which the GOP likes to think of as conducive to "voter fraud." Few Republicans, of course, make a credible case that there's much of a prospect for multiple voting or ballot-box stuffing; most of their "anti-fraud" efforts really boil down to a determination to entrap perfectly eligible voters in technical violations of questionable laws, or involuntary mistakes made in marking confusing ballots. Right beneath the surface of all the "anti-fraud" rhetoric is the unsavory belief that voters who cannot negotiate weird and inefficient election laws and ballots don't deserve to vote, anyway--a belief that is starkly contrary to more than a century's worth of constitutional progress towards elimination of any "ballot tests" other than citizenship and adulthood.
So I'm perfectly happy to see flotillas of lawyers deployed to make sure Americans have every chance to vote, if only to offset the flotillas of lawyers eager to deny them that right.
But hey, didn't Congress pass legislation a couple of years ago designed to stop the madness and reinforce some uniformity of election laws and procedures? Sure enough: legislation optimistically entitled the Help America Vote Act did indeed get signed into law in 2002, but it's created almost as much confusion as it's resolved, because: (a) it has to be implemented by state and local election officials, including Republican secretaries of state in Ohio and Florida who sure as hell don't seem very interested in Helping America Vote unless it votes the "right" way; (b) it introduced the idea of "provisional" voting for people who aren't on precinct registration lists, but didn't make it clear how such ballots would be challenged and judged; and (c) it encouraged, but did not require or really regulate, new technologies for casting and counting ballots, creating even more inconsistency and confusion than existed four years ago.
But aside from the inadequacies of HAVA, the other looming menace this year is the precedent set by the U.S. Supreme Court in Bush v. Gore. As Jeffrey Rosen recently explained in The New Republic, the Supremes didn't just decide one presidential election: they created an "equal protection" argument that could enable partisan lawyers to get a wing-tipped foot through the door of federal court on a whole host of electoral claims. So: we have a system where state and local officials make all the calls on Election Day, and a potentially unlimited climate for state and federal litigation to question any of these decisions if they arguably affect the results in any state. We could wind up with two, three, many Floridas.
If that happens, folks, it's going to be time to create a large, loud, abrasive grass-roots campaign to standardize voting rights and procedures in this country once and for all. Look, I've spent a majority of my own career in state government, and I respect the role of the states as "laboratories of democracy." But when it comes to the right to participate in democracy's most fundamental ritual--namely, elections--we cannot let a few partisan state officials and their black-robed cheerleaders in a politicized judiciary turn the states into the laboratories of Dr. Frankenstein.