The 2004 Election Legal Challenges: We All Lose, Not Because He Won

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Anyone who is capable of getting
themselves made President should on
no account be allowed to do the job.”
– Douglas Adams, The Hitchhiker’s
Guide to the Galaxy
“The United States is a nation of laws:
badly written and randomly enforced.”
– Frank Zappa

As you read this article, there is a decent chance
legal challenges are delaying the final results of the presidential
election, assuming the outcomes said legal challenges
might affect the final electoral balance. Analysis
of the pre-election electoral landscape of my home state,
Florida, leads some to believe that we are indeed likely
to see another delay in the final results from there and
possibly Ohio. With 20 electoral votes, an Ohio delay
will likely lead to a similar situation we saw in 2000: a
contested election days or even weeks after voting.
The Democrats have recruited as many as 20,000
lawyers that will be rapidly deployed in case of legal
challenges, and the Republicans have a similar number.
Lawyers for both sides will be at polling stations, prepared
to head-off any problems as they develop. “There
are people who felt that the Democrats didn’t fight hard
enough [in 2000]. That’s not going to happen [this
time],” said DNC Chairman Terry McAuliffe, in
response to RNC accusations that Democrats intend to
circumvent the electoral process through the courts.
The major parties have been planning for post-2004
election legal campaigns well before primary races were
completed. The Bush and Kerry Campaigns already have
well funded legal accounts, raising an important question
about the scope of campaign finance laws as they relate
to this type money. One could make the case that if a
candidate was unable to “buy” the election through the
normal electoral process, the status of legal-challenge
fundraising could allow them to “buy” the election
through the court system.
Al Gore was vilified by partisans as a “poor loser”
when he decided to pursue legal remedy (at least halfheartedly)
in the 2000 election to force ballots in Florida
to be counted. In this election, we are likely to see most
legal-challenge initiations made by Democrats, as we
saw in 2000. Is this because Democrats are poor electoral
sports? Ralph Nader might believe such, given the
difficulty he’s had surmounting Democratic legal challenges
to ballot access in many states (despite circumstantial
Republican help).
While I certainly wouldn’t defend ballot access challenges,
Democrats may be more likely to pursue legal
action after the election because of the make-up of the
party’s constituency. Minorities, the poor, and inexperienced
voters are disproportionately more likely to identify
as Democrats. These are also segments of the electorate
that are most likely to be disenfranchised in some
way. (We didn’t hear about the disenfranchisement of the
religious right or CEOs in 2000, did we?). These groups
are also likely to be geographically concentrated,
increasing the chances that polling problems in certain
communities might constitute the basis for legitimate
equal protection violation claims.
The fact that elections are being decided in the court
system may be troubling to you. It may seem as if, somehow,
elections have gotten “worse” starting with 2000. I
disagree. Before 2000, ballots were lost in elections.
Votes were miscounted. And yes, like in the 2000 election
in Florida, poor and minority voters were systematically
disenfranchised. These problems have always
Polls indicate that a majority of Americans believe the
election will be decided in the courts. The fact that elections
now have an assumed judicial component is not a
problem in itself, but rather an indication of a greater ill
in the American electoral system.
If anything, court challenges may be the best development
for American democracy since the barring of poll
taxes. While having the President chosen by the courts is
not ideal democracy, it makes it difficult to ignore problems
of unequal ballot access, election irregularities,
equal representation disasters, and the general malaise of
U.S. democracy. Addressing these problems require both
institutional reform and practical changes in the way
elections are run. And, hopefully, enough people will
become sick of appointed judges deciding the outcomes
of elections to initiate some meaningful change in how
citizens in the U.S. choose their government.
As you read this, however, it may also be the case that
there was a clear winner on Nov. 2, and there were little
or no legal challenges. Remember, though, just because
there were no challenges based on racial discrimination,
improper election management, or uncounted ballots
doesn’t mean it didn’t happen. It surely did. Now lets do
something about it.
If you are interested in working towards electoral
reform, contact the author at

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