WASHINGTON — Both presidential campaigns are preparing to refight the damaging 2000 recount battle in the case of a near-tie in Tuesday's vote, with a particular focus on the swing states of Ohio, Colorado, Florida, Virginia and even Pennsylvania.
The legal teams being assembled behind the scenes by both sides could have significant issues to litigate in any of those states — and likely any other decisive state where Tuesday's balloting ends up "too close to call." Extended litigation, all sides agree, is a nightmare scenario: It would deepen national divisions and call into question the legitimacy of the ultimate victor.
But both camps are both ready to fight, and both have their generals already in place. Ben Ginsberg, a key lawyer from President George W. Bush’s 2000 legal team, served as national counsel for Mitt Romney’s 2008 campaign and is leading the team’s efforts this year.
Robert Bauer, who was President Clinton’s lawyer, served as Obama’s White House counsel and is now leading the campaign’s efforts just down the street from 1600 Pennsylvania Ave.
Although their offices are less than 2 miles apart in Downtown Washington, D.C. — with Bauer’s firm, Perkins Coie, located a few blocks from the White House and Ginsberg’s firm, Patton Boggs, located just east of Georgetown — their eyes are focused elsewhere as each team prepares for countless possible flash points on Election Day.
The outlines of the fight have become perennial: Democrats focus on to access to the polls, mounting “voter protection” efforts connected to encouraging early voting and averting problems related to implementation of voter ID laws, in discussing their legal efforts. Republicans are talking up concerns about “voter fraud,” from questions about fraudulent registrations to efforts that would result in people voting in multiple states.
Both sides already have shown their willingness to engage: The Obama campaign successfully challenged a provision in Ohio's early voting law, and the Republican National Committee sent a letter to several state's secretaries of state — including in Ohio and Colorado — warning of "voting machine errors"
University of California, Irvine, law professor Rick Hasen, one of the country's leading election law experts, told BuzzFeed on Thursday that the states in which a close outcome would most likely lead Ginsberg and Bauer’s legal teams into court would be Ohio, Florida, Colorado, Virginia and Pennsylvania. Automatic recounts are triggered if the elections in those states are within 0.5 percent in Florida, Colorado or Pennsylvania or 0.25 percent in Ohio.
With the Real Clear Politics electoral map showing 11 states in the toss-up category — including Ohio, Florida, Colorado, Virginia and Pennsylvania, with their 89 electoral votes of the 270 needed to win the presidency — Election Day could hinge on the outcome in any of these states.
One unexpected unknown is the impact of Hurricane Sandy, which BuzzFeed reported already has had an impact on early voting — and which could continue to have an impact going forward. Concerns on that front center on Pennsylvania, the likeliest of Sandy's victims to be in play on Tuesday.
"The question there is whether election officials will be able to get their polling places open and, if they need to move some polling place locations, if they’ll be able to get the information to voters in time," Hasen said.
The primary concern, though, is in Ohio, where a recent court ruling would lead to the counting of thousands of provisional ballots cast that weren’t counted in 2008. Hasen said the increased number of provisional ballots makes it more likely such ballots — despite being a very small percentage of overall votes — nonetheless could prove decisive. Ohio’s provisional ballots, however, don’t even start being counted until Nov. 17.
“It’s entirely plausible that if the election comes down to Ohio, we won’t know the winner of the election for a couple weeks,” Hasen said, alluding to a recent video of a four-year-old girl weeping over election chatter. “That would make the Bronco Bama girl cry a lot more.”
Ohio Attorney General Mike DeWine, a Republican, lost an appeal to the Sixth Circuit Court of Appeals on the issue of whether voters ballots should be counted if they are in the right polling location but are sent, due to poll-worker error, to vote in the wrong precinct. For now, they will be counted, but DeWine and his staff still could appeal that ruling.
In Florida, ongoing questions — lingering, really, since 2000 — continue to be raised about the state's election preparation.
"I don’t think Florida has its act together," Hasen said. Noting problems already found with tens of thousands of ballots in Palm Beach County, Hasen said, "Aside from the fact that this doesn’t give people confidence that they’re votes are being fairly and accurately counted, Florida remains a place where there’s a lot of partisanship in how elections are run and a lot of variation with how elections are run across counties. It’s very closely fought and highly polarized place.”
In Colorado, questions about the partisanship of the Republican secretary of state, Scott Gessler, could lead to a difficult recount. "If it comes down to Colorado," Hasen said, "I expect there is going to be litigation and a tough recount atmosphere.”
Questions about voter registration issues, including voting in Virginia's college communities, could be at play in the Old Dominion state should Obama be able to pull out a win there.
In Pennsylvania, the implementation of an unusual court ruling regarding the state's voter ID law could arise in any post-election litigation. Under the ruling, the state can ask for ID at the polling place but it can’t deny someone a ballot if they don’t have ID, and rules around the requirement that voters without ID be given a provisional ballot have already led to soem confusion.
If the election gets closer in Pennsylvania, as the Romney campaign already claims it has, then expect Democrats to be looking for evidence of voters being turned away from the polls because they lacked an ID.
And while voting technology has improved from a dozen years ago, Hasen and other observers argue that other elements of election administration have gotten worse.
“Election law has become part of parties’ political strategy. You have election legislation being passed on party-line votes to help one party or another,” he noted. “We still have partisans running our elections, Democratic and Republican election administrators administer elections differently, even when they’re trying to do a fair job.”
Hasen also added one other way an “overtime” election would be different — and, in his view, more difficult — this time around.
“The other piece of this is the rise of social media, which was not around in 2000, which I think exacerbates partisan tensions in the event that we have an election go in to overtime.”