Election Day is still weeks away, but both parties are already gearing up for post-election legal battles over the House and Senate race outcomes.
Recounts in close races are only one scenario among many that party operatives refer to as “overtime” or “post- election activities.” Lawyers and campaign committees are trying to be ready for whatever they may face on the morning of Nov. 7.
“On a weekly basis, we have been doing training with lawyers in key districts,” a national GOP operative said. “Each state is different; each process is different.”
Party committees are also actively fundraising to cover post-election legal fees.
Aides say that elections can be lost after the polls have closed and that being caught unprepared for a post-election dispute could be fatal to a campaign. One Democratic operative said he considers preparations for legal challenges as important as get-out-the-vote efforts.
Parties want their legal teams and trained observers in place when election officials begin officially canvassing the votes. The party representatives monitor the process to ensure rules are being followed.
“The next day, with or without you, election officials will start doing the canvass,” said Arizona attorney and political operative Chris DeRose, who has participated in post-election legal matters for local and federal Republican campaigns.
Party committees pay particular attention to races expected to be close. Lawyers have already been assigned to some of those contests.
The committees maintain lists of personnel experienced in post-election activities. Some are local talent, others are from Washington, D.C. “Where there are local attorneys who are part of the program, who are trained, that is preferable,” the GOP strategist said. “Where there is no such thing, there are Washington folks who can be deployed.”
Two recent political traumas have convinced party officials of the importance of being prepared for post-election battles. Democrats say the 2000 presidential election was lost in the Florida recount, while Republicans blame the 2008 Minnesota Senate race recount for handing the Democrats a supermajority.
“When a presidential campaign can be won or lost by 537 votes, every professional campaign needs to have a very robust recount plan,” said C.R. Wooters, a Democratic operative and veteran of the 2000 Florida recount.
The biggest dispute in Florida was how to count ballots with hanging chads. These days, the legal issues are likely to involve local voting problems.
According to election law expert Nathaniel Persily of Columbia Law School, the greatest causes for concern include insufficient ballots, machine breakdowns, arbitrary application of the law and long lines. “The more pernicious problems with American elections come from errors and mistakes rather than intentional manipulation of the process,” he said. “But lawyers are prepared for both.”
Persily added that provisional and absentee ballots are where the “most vicious fights” are likely to occur. But he added that the 2000 Florida recount proved it is impossible to predict where problems will occur.
While recounts in federal elections are rare, they occur more frequently in House races than in Senate contests. And overall, recounts are more common in state and local races. It’s considered inevitable that the courts will decide some race somewhere in each election cycle.
Campaign aides would rather not think about the potential anxiety of post-election legal wrangling. Some groan when the topic is broached. Those who would discuss the matter approached it with superstition and dread. “We don’t use the R word around here!” one Democratic operative joked.
Persily had another take.
“I continue to say the election administrator’s prayer: God, whatever happens, don’t let it be close,” he said.