Lawyers Prepared for Post-Election Senate Battles

Posted October 27, 2004 at 6:34pm

Lawyers are already fanned out across the country, ready to pounce on Election Day irregularities or oversee recount efforts in Senate battleground states.

Some of the tightest Senate races are expected to trigger automatic recount laws or spawn court challenges, and in light of the heightened tension surrounding this year’s presidential race, no one wants to be caught off guard.

“The key is to have a game plan in place going into election night and to have people ready to go,” said Dan Allen, spokesman for the National Republican Senatorial Committee. “We’re making sure [our campaigns] are all very, very familiar with state laws and ready to go just in case.”

The fact that campaigns have hired lawyers to pore over local election laws and bone up on how to challenge questionable ballots and that they have recruited volunteers to observe polling places for irregularities is a product of hard feelings remaining from the 2000 presidential race and a desire not to be caught flat-footed again, political watchers say.

“The intense scrutiny of the election process we have been seeing everywhere will inevitably trickle down to all races,” said Steven Huefner, an associate professor of law at the Moritz College of Law at Ohio State University, who is following legal challenges in battleground states. “Any race within the margin of error is likely to generate litigation.”

Candidates in what are arguably the three tightest Senate races — Alaska, Florida and South Dakota, which are all considered tossups — have been preparing for such eventualities all along.

“We have had legal counsel the entire campaign,” said Dick Wadhams, campaign manager for former Rep. John Thune (R-S.D.), who is challenging Senate Minority Leader Tom Daschle (D) in the marquee Senate race of the cycle. “We’ll be prepared for any eventuality.”

Thune declined to contest the 2002 results even though he lost to Sen. Tim Johnson (D-S.D.) by a mere 524 votes, leading both his camp and Daschle’s to lawyer up early this year.

Their sizeable legal teams — both sides declined to say how many lawyers are working for them — will also be looking out for charges of voter intimidation or voter fraud, especially on the state’s vast American Indian reservations.

Wadhams played down scenarios in which the contest could drag on for weeks, saying of his legal team: “We hope that they will be terribly bored on Election Day.”

In Alaska, where recounts are automatic if the leader is ahead by less than half of 1 percent of all votes cast, lawyers from the Last Frontier and the Lower 48 will also be on the look out for similar problems among the state’s significant American Indian population.

Additionally, Democrats are prepared to challenge anything they think does not pass the smell test.

“Gov. Frank Murkowski [R] and his lieutenant governor have been ruled out of order five times by eight judges for trying to inject politics into the elections process,” said Matt McKenna, spokesman for former Gov. Tony Knowles (D), who has been basically tied with appointed Sen. Lisa Murkowski (R) for a year.

In Alaska, the lieutenant governor also heads up the state elections division. Lt. Gov. Loren Leman (R) has been the source of several controversies involving ballot initiatives, including being ordered by the Alaska Supreme Court to put a voter-driven initiative on Senate succession back on the ballot. The measure is seen as a potential source of embarrassment for Lisa Murkowski, who was appointed to the Senate by her father.

Earlier this year, Leman determined that the state Legislature had passed a law similar enough to the proposal preventing the governor from making appointments to the Senate as to render it unnecessary.

The state’s high court disagreed.

An Anchorage judge also ordered Leman to reword the summary accompanying the initiative after backers successfully argued that it was biased against their referendum.

Randy Ruedrich, chairman of the Alaska Republican Party, said any challenge based on Leman’s involvement would go nowhere.

“Leman tried to interpret a way to characterize what the initiative said to the best of his ability,” Ruedrich said. “I would consider any challenge totally frivolous because the elections division is made up of nonpolitical, longtime employees.”

One political observer, who did not want to be named, said Democrats could have a stronger case than Republicans let on because of several of Leman’s decisions throughout the election cycle.

But Alaska Republicans have their own complaints and worries.

Ruedrich said his lawyers will be on the lookout for any “improper” inducements for voting, such as offers of free gas. Ruedrich charged that Knowles’ supporters offered just that to voters when he ran for re-election as governor in 1998.

McKenna scoffed at the allegation and said the Knowles campaign is also ready for a potential recount.

“We have lawyers in place,” he said. “We expect, as we have for a year, that this is going to be a really close election, and we want to make sure that every vote counts.”

That is the theme both sides are sounding nationally as the clock winds down.

“We have lawyers … who have been in contact with our campaigns in our competitive states to make sure that they are ready to deal with legal issues and challenges … and other possible irregularities on Election Day,” said Brad Woodhouse, spokesman for the Democratic Senatorial Campaign Committee. “We’re prepared, as I think the other side is, to contest vigorously any close race.”

And no race might be more vigorously contested than the one between former Housing and Urban Development Secretary Mel Martinez (R) and former Florida Education Secretary Betty Castor (D) as they slug it out for the Sunshine State’s open Senate seat. Because Florida is the place that started all the post-Election Day trauma in 2000, both parties are already armed for battle, and that preparedness will trickle down to the Senate campaigns.

“The party here has recruited thousands of lawyers for Election Day, and when early voting started there was a problem with a polling place in Tampa and lawyers from our office had to take care of that,” said Castor spokesman Matt Burgess. “We have a team of volunteer lawyers prepared for things like that.”

Florida law also calls for an automatic recount if the difference between candidates is less than half of 1 percent.

Elizabeth Garrett, director of the University of Southern California-Caltech Center on Law and Politics, stressed that while Senate challenges and recounts are possible, and even likely, the Senate itself has the ultimate responsibility to determine who the winner of a contested race is.

The Constitution states, “Each House shall be the judge of the elections, returns and qualifications of its own Members.”