Lithwick: Why We Need Election Day Lawyers

It's become a truism of elections that both camps "lawyer up" before the big day. Briefcase to briefcase, wingtip to wingtip, both Barack Obama's and John McCain's campaigns 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.

This time, each camp has amassed small battalions of lawyers—and the private jets necessary—to parachute them 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.

A report issued last week by the Pew Center on the States, titled "What If We Had an Election and Everyone Came?,"warns of 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 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. That leaves 49 states and hundreds of attorneys to enjoin, dispute and litigate claims of dead men casting ballots and touchscreen voting machines with minds of their own.

To that end, Obama and McCain have signed up thousands of lawyers to serve on Election Day, although neither campaign wants to discuss exact numbers or litigation strategy. Both campaigns have deftly tapped citizen-lawyers in this election, even seeking lawyer volunteers on their Web sites, some of whom report being called back almost instantly. 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, lawyers on each side are ghostbusting 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 that Democrats are "destroying the fabric of democracy" by signing up Mickey, Minnie, Donald and Daisy, who then vote in coordinated efforts to steal the election. (There is virtually no empirical evidence for such polling-place vote fraud, but as the Supreme Court recently indicated, when it comes to quadrennial elections, public hysteria should always be met with equal levels of 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 recently prevailing over Ohio Republicans' efforts to force the state to name 200,000 new voters whose registrations didn't match government databases. Obama lawyers filed suit in Michigan to stop Republicans allegedly planning to use mortgage foreclosure lists to challenge voters. On the other side, lawsuits filed by the state Republican parties in Montana and Wisconsin have met with little success thus far. Both sides also have elite lawyers on standby in case the election goes into constitutional overtime.

And what about the thousands of lawyers who will be pressed into service on Election Day? Thankfully, they don't all work for the campaigns. Jonah Goldman, director of the nonpartisan National Campaign for Fair Elections, says it will deploy 10,000 legal volunteers on Election Day to man hotlines and monitor the polls.

Most of them will be making sure new voters are having their IDs properly checked but are not being harassed, using faulty machines or being forced to use provisional ballots, says Prof. Richard L. Hasen, who teaches election law at Loyola Law School. If nothing else, all these lawyers will be watching each other, which in a tense election year may not be such a bad thing, suggests Hasen.

Election litigation is a boom industry, even in a crumbling economy. Hasen has 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, it may be that the best way to inoculate America against the pandemic of "vote fraud" allegations and the rise in voter intimidation and suppression is by throwing more lawyers and lawsuits at it. The single most important role for all the lawyers in the 2008 election may be to avert the bigger 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 lawyers completely. It's a sad comment on our public confidence in voting that we nevertheless trust them absolutely next week to protect the integrity of the election system.