Tuesday, October 26, 2004
By PAULCAMPOS
SCRIPPS HOWARD NEWS SERVICE
One of the more specialized skills lawyers develop is the ability to express outrage regarding events that haven't happened. This talent is coming in handy in Colorado right now, as hundreds of attorneys draft complaints about cases of voter fraud and disenfranchisement that "took place" sometime in the future, i.e., on Nov. 2.
The combination of a close presidential race and Amendment 36 -- a ballot initiative that could divide Colorado's electoral votes and thereby decide the election -- threatens to transform the state into a legal free-fire zone. Put it this way: If the identity of the next president ends up depending on the passage and enforcement of Amendment 36, then we'll see a series of lawsuits that will make Bush v. Gore look like a modest exercise of judicial discretion.
Colorado is merely a particularly stark example of the sort of situation shaping up in several battleground states. As presidential campaigns become more technologically sophisticated, they become better at targeting potential swing voters, and determining exactly where those voters are.
That's why, in the final weeks of this election, the major candidates are ignoring most of the nation, while they focus ever-more intense efforts on just a few states. This inevitably increases the odds of a repeat of the 2000 Florida fiasco.
Among other things, the 2000 election litigation revealed how inaccurate our current balloting process is. It thereby ensured that, if the 2004 election ends up hinging on a margin of just 1 or 2 percent of the vote in a couple of key states, the apparent loser will have every incentive to challenge the balloting process in court.
Indeed, I've spoken to several election law experts who think the odds are good that the winner of the 2004 presidential election won't be known for weeks after the voting is over. (Such an outcome would allow the Bush administration to take credit for giving Afghanistan an electoral process that looks like America's.)
Supreme decision
This growing tendency to treat Election Day as an invitation to file a series of lawsuits has some rather dire consequences for democracy. Whatever one may think of the legal merits of Bush v. Gore, everyone can agree that, as a political matter, installing the nation's chief executive on the basis of a 5-4 vote of the Supreme Court is a terrible way to pick a president.
As true as that was in 2000, a similar outcome in 2004 might well produce the sort of crisis of legitimacy that many people predicted four years ago, but never transpired.
I dislike alarmist predictions, but I don't think it's alarmist to contemplate the consequences of something like a repeat of the 2000 election. And I'm not exaggerating when I say that a tainted Bush re-election would trigger paranoid fantasies among many otherwise responsible people.
Indeed, a deep conviction that the Bush presidency is the worst in modern American history (a sentiment I've heard expressed by several otherwise moderate Democrats), combined with a widespread visceral loathing for the man himself, make the prospect of another questionable Bush win something that could produce a potentially radical reaction among even some establishment political figures.
On the other hand, if Kerry were to win a disputed election, an equally pronounced streak of paranoia could well be triggered among Republicans. Such an outcome would feed fears that the ever-shadowy "liberal elite" had stolen the election, thereby effectively surrendering the nation's sovereignty to terrorists and Frenchmen, if not to the Prince of Darkness himself.
Fasten your seatbelts: it's going to be a bumpy night.
X Paul Campos is a law professor at the University of Colorado.