Lawyered Up

The legal nightmare that never materialized.

Like bombs that never detonated, most of the cataclysmic legal battles we’d all been anticipating are scattered inert across the country this morning, with the last among them the fight over Ohio’s provisional ballots. Those potential landmines included a lawsuit in Pennsylvania over absentee ballots, last-minute suits in Florida over late-to-arrive absentee ballots, and yesterday’s skirmishes in Ohio over challengers at polling places. Similarly, Colorado’s looming legal crisis vaporized with the failure of Amendment 36, the effort to reapportion the state’s electoral votes. Those fights are now moot or irrelevant. In the end, the 2004 election was decided by the voters, not the courts, a result that’s far better for all of us in the long run.

Ohio really could have been the new Florida. The final numbers showed George W. Bush leading Kerry with a margin of approximately 135,000 votes. Depending on whom you asked this morning, the number of provisional ballots is greater than that: Ohio Secretary of State J. Kenneth Blackwell said that as many as 150,000 of the state ballots were provisional, other elections officials have put that number over 200,000. Any way you sliced it, that’s less than the “margin of litigation” and it opened up the possibility of a host of new election challenges

Provisional ballots, already established under existing Ohio state law, were mandated nationally under the federal statute passed to remedy 2000 election foul-ups, the Help America Vote Act. HAVA provides that every state must issue a provisional ballot to any voter not listed on the rolls. But despite HAVA’s best intentions, it set no standards for counting those votes. The state of Ohio does have standards for counting them, but it’s not at all clear now whether those standards would have survived the week. The most worrisome issue pending in the courts this morning was a suit filed Tuesday, challenging the guidelines set by Secretary of State Kenneth Blackwell for validating provisional ballots. By asking only that voters produce “acceptable” proof of their identities to obtain a provisional ballot, Republicans argued that county election officials were free to set varying standards across the state. This, they claimed, violates the principle of equal protection and statewide uniformity required by the Supreme Court in, yes, Bush v. Gore.

Beyond that, there was the looming possibility of a statewide recount, once the provisional ballots were finally counted. Ohio law provides for such a recount if the margin is less than a quarter of 1 percent. And as Rick Hasen observed this morning, if the provisional ballots narrow the margin between Bush and Kerry even further, the mandatory recount would have been triggered. Since many Ohio counties still use punch-cards, we could have then seen a replay of Hanging Chad-Gate; disputes over every ambiguous punch card ballot across the state.

Statistically, none of this really mattered in the end. Although the provisional ballots were concentrated largely in the state’s three big cities, all Democratic strongholds, Kerry would have needed to win virtually all of them to close the gap with Bush. Moreover, the vast majority of those ballots would have needed to be deemed valid to offer Kerry even a chance of catching up. Democrats were quick to point out that Ohio law is traditionally generous in validating such ballots. Ninety one percent of the 98,000 provisional ballots cast in the 2000 election were deemed legitimate. But that was before HAVA broadened the definition of provisional ballots, allowing anyone whose name was not found on the rolls to fill one in. Republicans argued that if rigorous statewide standards were used, only 7 to 20 percent of those votes would be counted.

The real reason Ohio didn’t become Florida isn’t just that Kerry lost the popular vote, unlike Gore four years ago, or that the margins were too close to beat. The reason was that much maligned lawyers all around the country did their jobs. There’s a reason we all talk trash about ambulance chasers, yet would never dream of buying a house, or writing a will, without an attorney: Lawyers are troubleshooters and problem-solvers, sherpas through ambiguous terrain. This election they did precisely what they were meant to do: learned from the last time, monitored the rough patches, interceded in the close cases, and backed off when it became irrelevant. The law, at its best, anticipates trouble and builds systems to protect against it. That is what John Kerry recognized this morning, and we are all better off for it.