Monday, October 25, 2004
Via Zemblan patriots J.D. and K.Z.: We are delinquent in bringing you John Dean's Friday column from FindLaw.com, in which he discusses (among other topics) the legacy of Lee Atwater, the tenacity of Karl Rove, and the curriculum vitae of Chief Justice William Rehnquist, the former poll goon whose duties included intimidating black voters in Arizona as part of "Operation Eagle Eye":
This next presidential election, on November 2, may be followed by post-election chaos unlike any we've ever knownYou have perhaps read that the aforementioned ex-poll goon is now in the hospital (admitted Friday; news suppressed until Monday) with what is probably an "aggressive or complicated" case of thyroid cancer. Rob at AmericaBlog wonders what's likely to happen if Election 2004 winds up in the Supreme Court with Rehnquist dead or incapacitated, and the other justices split 4-4 along the obvious ideological lines.
Look at the swirling, ugly currents currently at work in this conspicuously close race. There is Republicans' history of going negative to win elections. There is Karl Rove's disposition to challenge close elections in post-election brawls. And there is Democrats' (and others) new unwillingness to roll over, as was done in 2000. Finally, look at the fact that a half-dozen lawsuits are in the works in the key states and more are being developed.
This is a climate for trouble. A storm warning is appropriate. In the end, attorneys and legal strategy could prove as important, if not more so, to the outcome of this election as the traditional political strategists and strategy . . . .
There are still eight true swing states. In total, they have 95 electoral votes: IA-7, FL-27, ME-1, NH-4, NM-5, OH-20, PA-21, and WI-10.
It is in these states that election 2004 will ultimately be resolved - either in the voting booths, or in the courts. And note that none of these states, alone - even Florida, with its 27 votes - will give either candidate a win.
That means we could see simultaneous litigation in a number of states - chosen either because the polling was especially close, or because there are significant numbers of vulnerable votes to try to disqualify. It will be recalled that the possibility for multi-state litigation arose in 2000, before Florida became the focus; it could easily become a reality in 2004.
When I discussed this situation with several attorneys on both sides, I realized none are likely to back down. The Democrats intend to play hardball to win this time; the Republicans feel that Democrats aren't adhering to the letter of the law in registration efforts - and want to hold them to it . . . .
It may be days or weeks, if not months, before we know the final results of this presidential election. And given the Republican control of the government, if Karl Rove is on the losing side, it could be years: He will take every issue (if he is losing) to its ultimate appeal in every state he can.
The cost of such litigation will be great - with the capital of citizens' trust in their government, and its election processes, sinking along with the nation's (if not the world's) financial markets, which loathe uncertainty. After Bush v. Gore, is there any doubt how the high Court would resolve another round? This time, though, the Court, too, will pay more dearly. With persuasive power as its only source of authority, the Court's power will diminish as the American people's cynicism skyrockets.
It does not seem to trouble either Rove or Bush that they are moving us toward a Twenty-first Century civil war -- and that, once again, Southern conservatism is at its core. Only a miracle, it strikes me, can prevent this election from descending into post-election chaos. But given the alternatives, a miracle is what I am hoping for.