Newspapers and magazines have been full of stories raising the disturbing possibility that the 2004 presidential election could once again end up in the courts: Will we wake up on Nov. 3 not knowing whether George W. Bush or John Kerry will be president for the next four years? Will the Supreme Court intervene again? How did things end up this way? Didn't the country learn anything from the Florida debacle of 2000?
The chances of post-election litigation affecting the outcome of this election are in fact small—probably well under 10 percent. It is not that Election Day problems are unlikely—I think they are guaranteed—but they would have to occur in a place where the resolution of the problem could affect the outcome of the election. Think battleground states like Florida, Ohio, Pennsylvania, or Colorado. We should hardly find that statistic comforting: Even a small probability of a big disaster is worth concern. Here I consider five nightmare scenarios for how the election could remain in doubt after Nov. 2 and how all of them raise the possibility of court intervention. Ironically, the Florida debacle and our reactions to it have increased, not decreased, the chances of a post-election problem.
Nightmare Scenario No. 1: Litigation Following Voting Glitch
The one lesson you would have thought everyone learned from Florida 2000 is that we need to use reliable equipment to cast ballots. After all, it was Florida's antiquated punch-card voting system—along with legal wrangling over whether and how punch-card votes should be counted—that led to the Supreme Court's decision in Bush v. Goreending the Florida recounts and handing that election to George W. Bush.
After the election, the well-respected Caltech-MIT Voting Study found that 1.5 million votes were lost because of punch cards, and there were many other problems caused by both machinery failures and poor ballot design. Yet many jurisdictions dawdled in changing their technology, and some changed it only because of litigation. A great number of jurisdictions waited for congressional funding. Congress, enmeshed in partisan bickering, only finally passed the Help America Vote Act in late 2002, providing such funding. (Congress then failed to fully fund it—but that's another sad story.)
So, now we have jurisdictions rolling out their voting equipment for the first or second time for use in a presidential election. This is like opening the first draft of your play on Broadway. We should expect technical problems with new systems, especially when those systems have to be operated by overworked, underpaid, and undertrained poll workers. Just think of an 80-year-old poll worker trying to reboot a new electronic voting machine. And only last week in Florida—which decided to move to electronic voting—we witnessed the spectacle of outgoing Palm Beach County elections official Theresa LaPore (of "butterfly ballot" fame) explaining away a computer crash that forced a pre-election test of electronic voting machines to be postponed.
Voting glitches can cause any number of problems that may end up in court. We could see a demand for a recount (something that could be compounded into an even bigger problem if the recount involves a problem with electronic voting machines that fail to produce a paper record). Widespread machine failure could cause delays at the polls—which will inevitably lead to calls to keep them open longer, followed by potential litigation over whatever administrative or legal decision is made. And with the parties expected to have armies of lawyers in battleground polling areas on Election Day, you can be sure any problem will be pounced on promptly.
Nightmare Scenario No. 2: Litigation Over Whose Vote Counts
The Help America Vote Act, which was supposed to make things better after Florida, may make things much worse in the short term. One HAVA provision requires states to allow voters who believe themselves eligible to vote, but whose names do not appear on the voter rolls, to cast a "provisional ballot," with election officials later determining whether those ballots should be counted. But HAVA is unclear on whether a voter who casts a vote in the wrong precinct (but the right county) is entitled to have that vote counted.
You would think that with two weeks to go before the election, this ambiguity would have been resolved. But litigation in at least four states on this issue is just getting under way. Courts have reached somewhat conflicting decisions on this issue in Ohio, Florida, Colorado, and Missouri, and further appeals and decisions are coming. The issues may not be finally resolved in time for Election Day.
So, imagine the vote in a battleground state hangs by a few thousand votes before the provisional ballots are examined (itself a time consuming process, by the way). Whether that state goes to Bush or Kerry could then turn on the legal question of HAVA interpretation—an issue that could go all the way to the Supreme Court.
Other litigation over whose vote counts is already under way, including a challenge to the Florida secretary of state's decision to disqualify new registrants who fail to check a box confirming they are American citizens, even if they signed the oath on the registration form affirming their American citizenship. There are also disputes about the number of ballots available in Milwaukee, alleged destruction of registration forms in Nevada, * and Pennsylvania's time frame for allowing voters to cast overseas absentee ballots. Any and all of these battles could affect the election or end up in the high court.
Nightmare Scenario No. 3: Litigation Over Colorado's Amendment 36
On Nov. 2, Coloradans will consider Amendment 36—a voter initiative—that, if passed, will change the way that Colorado's nine electoral votes are allocated from a winner-take-all to a proportional system. This initiative unambiguously states that it is intended to apply to this year's presidential election. So, the winner in Colorado could end up with 4 or 5 votes rather than 9, and the election could then hang in the balance over a technical legal question: whether Amendment 36 can properly apply to this election.
The major parties so far have stayed out of this particular dispute, but a businessman has just filed suit in federal court claiming that the retroactive nature of the amendment violates the constitutional right to due process (a somewhat dubious argument) and putting forth the more serious argument that Amendment 36 violates Article II of the Constitution, which vests the state legislature with the power to pick the rules for choosing constitutional electors.
The Article II argument was one that appealed to the three most conservative justices on the Supreme Court deciding Bush v. Gore. They believed the Florida Supreme Court's recount rules made new law (rather than interpreting old ones) that violated the Florida legislature's power to set the rules for choosing electors. Last June, in a case emanating, ironically, from Colorado, Chief Justice Rehnquist and Justices Scalia and Thomas reaffirmed their position, asking for a hearing on the question of whether the Colorado Supreme Court usurped the Colorado Legislature's power to set the rules for congressional redistricting. There are some old precedents on the meaning of "legislature" that may be relevant, but their application to the Colorado scenario is unsure. If the issue made it to the Supreme Court, the final call likely would come down to—surprise!—the votes of Justices Kennedy and O'Connor.
Given the recent Colorado case, the Colorado Supreme Court would be unlikely to sympathize with the Article II argument, should Amendment 36 pass and the legal challenges go forward. Republicans' best hope might be federal court litigation, where a more conservative Tenth Circuit Court of Appeals could consider the issue, and potentially spare the Supreme Court the choice of overturning yet another state supreme court and handing another election to Bush.
Nightmare Scenario No. 4: Electoral College Woes in Congress
With such a closely fought election, we could see an Electoral College tie. The 12th Amendment provides rules for breaking such a tie (the House votes, with each state getting one vote). There may also be disputes over the counting of Electoral College votes (for example, what if we have a "faithless elector" who is pledged to one candidate but wishes to vote for another candidate?). And there are also questions about whether the federal law governing Electoral College disputes—the Electoral Count Act—is clear enough to deal with any controversy and whether it is constitutional in the first place.
One might think Electoral College issues are for Congress, and perhaps the states, to resolve, and not the courts. But one unambiguous lesson following Bush v. Gore is that the Supreme Court will not be afraid to step in, if a court majority perceives a need to avert a national "crisis."
Nightmare Scenario No. 5: Terrorist Attack That Disrupts Voting
This is the true nightmare scenario. In a forthcoming article in the Election Law Journal, John Fortier and Norman Ornstein consider the myriad ways terrorists could disrupt our elections. Consider just one of them—an attack in a major city in a battleground state, making it physically impossible for voters to get to the polls in part of the city, although voting can take place in the rest of the state and country.
Should the election be postponed, as New York's primary was postponed on Sept. 11, 2001? Most of the battleground states do not have a statute in place to deal with an Election Day delay, and Congress has done nothing to put any rules in place to deal with such a catastrophe either, assuming (a big assumption) that Congress has the power to do so.
If the election should be postponed even in the absence of a statute, as was done in New York City, how broad should that postponement be? Such a question inevitably would end up in the courts.
We all hope that none of these nightmare scenarios come to pass. Planning ahead of time could have lowered the risk of electoral meltdown; none of the above scenarios was unforeseeable. But for the most part, that planning either didn't happen or wasn't complete. We can't eliminate the possibility of a terrorist attack, for instance, but we could have had each state put a plan in place to deal with emergencies on Election Day. Congress could have written the provisions of HAVA more clearly and appropriated money sooner to change voting technology. Proponents of the Colorado amendment could have made it applicable only for future presidential elections.
In the meantime, we are left with nothing to cling to but the election administrator's prayer: Lord, let this election not be close.