It’s become a truism of elections that both camps will “lawyer up” before the big day. Briefcase-to-briefcase, wingtip-to-wingtip, the legal emissaries of both Barack Obama and John McCain seem to be taking their cues from the 2000 election, which—according to some accounts—was either decided in a Florida skirmish known as the “Brooks Brothers Riot” that ended the manual recount in Miami-Dade County, or—according to more mainstream accounts—in the august halls of the U.S. Supreme Court along crassly partisan lines. Ready or not, here they come.
This time around, each camp has again amassed small battalions of lawyers—and the private jets necessary—to parachute into local disputes at contested polling places. Forget what the opinion polls say going into Nov. 4. To paraphrase Boss Tweed, when it comes right down to it, it’s not the votes that count, but the vote counters. And it’s the armies of lawyers who will be on guard to ensure the votes get counted.
A report issued last week by the Pew Center on the States, titled “What if We Had an Election and Everybody Came,” warns of impending Election Day mayhem: “Like the infamous Nor’easter that sank the Andrea Gail, another perfect storm may be brewing, only this one has the potential to combine a record turnout with an insufficient number of poll workers and a voting system still in flux.” Thanks to the 2002 Help America Vote Act (which currently appears to be doing nothing of the sort) Ohio Republicans were emboldened to bring a novel dispute over the eligibility of newly registered voters that went all the way to the U.S. Supreme Court last week. That leaves 49 states, 11 days, and thousands of quick-thinking attorneys to enjoin, protest, and litigate every other possible election claim ranging from dead men casting ballots to touch-screen voting machines with minds of their own.
To that end, Obama and McCain have signed up thousands of lawyers, although neither campaign wants to discuss exact numbers or litigation strategy. Both campaigns have also deftly reached out to citizen-lawyers in this election, even seeking lawyer volunteers on their Web sites—some of whom report being called back almost before they have entered their information.
What will these attorneys be looking for on Nov. 4, and what do they plan to do if they find it? With an estimated 9 million new voters registered, lawyers on each side will be ghost-busting their election nightmare of choice: Democrats claim Republicans seek to suppress the vote—particularly student and minority votes—through polling-place intimidation, threatening robo calls, and illegal voter-roll purges. Republicans respond—indeed John McCain expressly announced at the final debate—that Democrats are “destroying the fabric of democracy” by signing up Mickey, Minnie, Donald, and Daisy, who will all then vote in coordinated efforts to steal the election. (There is virtually no empirical evidence for this type of polling-place vote fraud, but as the Supreme Court recently indicated, when it comes to quadrennial elections, paranoid public hysteria should always be met with greater or equal levels of paranoid judicial hysteria.)
Pre-emptive lawsuits have already been filed and resolved, which is, in some sense, far preferable to litigating recounts in December. Lawyers for the Democrats have evinced a readiness to litigate vote suppression early and often, just last week prevailing over Ohio Republicans’ efforts to force the state to name 200,000 new voters whose registrations don’t match government databases. Obama lawyers also filed suit in Michigan to stop Republicans allegedly planning to use mortgage foreclosure lists to challenge voters. That suit settled with an agreement not to do so. On the other side, lawsuits filed by the state Republican Party in Montana (challenging the registrations of mostly college students and Native Americans) and Wisconsin (also seeking to match new voters to state databases) have met with little success. And in addition to these pre-emptive legal teams, both campaigns will also have a second string of elite lawyers on standby in the event that the election goes into constitutional overtime.
But what about the thousands of lawyers who will be pressed into service on Election Day itself? Thankfully, they don’t all work for the two campaigns. Jonah Goldman, director of the nonpartisan National Campaign for Fair Elections, says they will deploy 10,000 legal volunteers on Election Day; some will be tasked with manning hotlines and others will be on the ground at the polls. Elite New York law firms will oversee call centers, including one Spanish-language hot line, all intended to provide “nonpartisan straight advice,” to voters encountering problems, says Goldman. Professor Richard L. Hasen, who teaches election law at Loyola Law School, confirms that most of the thousands of lawyers working on Election Day will not necessarily be racing to a courthouse to file dramatic pleadings, but hanging around the polling places, making sure new voters are not being harassed, using faulty machines, or forced to use provisional ballots (if Democrats) or that election officials are properly checking everybody’s IDs (if Republican). If nothing else, all these teams of vigilant lawyers will be watching one another, which in a tense and angry election year may not be such a bad thing.
Election litigation is a boom industry, even in a crumbling economy. Hasen recently published a study indicating that the number of lawsuits filed over elections rose from an average of 94 in the four years before the 2000 election to an average of 230 in the six years after. Paradoxically, the best way to inoculate America against the growing pandemic of “vote fraud” allegations from the political right, and the anxiety over widespread voter intimidation and suppression from the left, may be by throwing more lawyers at it. That’s why the single most important role for the armies of attorneys working the 2008 election may ultimately just be to be there: to avert the biggest conflicts and bear witness to the small ones. Send in enough lawyers, and you may just ensure that a watched polling place never boils.
A 2006 Harris poll found that only 18 percent of Americans trust attorneys completely. That’s a sad and unfair reflection on the contempt we feel for the profession in this day and age. One can’t help but wonder what it says about public confidence in our voting systems, then, that despite our almost complete lack of faith in them, we will rely almost exclusively on lawyers to protect the integrity of this election.
A version of this piece appears in Newsweek.