Tomorrow is a Big Day for Election Lawyers
Over at the blog of the Legal Times, we learn that election lawyers are bracing themselves for the aftermath of election day.
Washington lawyers who specialize in election law are bracing for recounts, complaints and other aftermath expected from the midterm elections on Tuesday.
Many law firms are working with familiar clients — Perkins Coie, for example, continues to represent the establishment of the Democratic Party, and the firm’s lawyers have already filed some complaints. Others are mounting defenses for newly formed nonprofit groups, such as American Crossroads. Holtzman Vogel partner Thomas Josefiak has been publicly representing that organization, which is spending millions of dollars on behalf of Republican candidates.
One question on the minds of election lawyers is whether there will be an unusually high number of contested results this year, given how close many races are and the fact that control of Congress is up in the air.
Of course, there will be hundreds of individual contested elections decided on election day. By the law of large numbers, many of these will be close contests, often so close that recounts will be required as a matter of state law. But after the recount, litigation comes only if one side wants it.
At this point the story has less to do with elections and more to do with the economics of litigation. Clearly what matters on that view is the cost of litigation relative to the stakes of litigation. Parties decide how much to invest based on what they hope to achieve, given the probability of success.
In cases where the candidates are close to the center, the prediction is that getting your candidate over the top counts for less than it does when the two candidates are far apart politically. The prediction is therefore that in those elections that pit Democratic orthodoxy against Republican tea partiers—think Harry Reid and Sharron Angle—a close outcome will provoke litigation. There are a lot of contests of that type right now, so expect to see more litigation than usual.
And how will that litigation be conducted? One of the dreadful charms of this field is that all local laws are different in detail, but share an extraordinary complexity. The issue is still more complex because it always has a constitutional overlay. There will be no Bush v. Gores coming out of a midterm election. But there could be lots of other legal action, for no matter how big the Republicans sweep, there will always be some close contests.
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May '10
Re: Tomorrow is a Big Day for Election Lawyers
I would think that, in a year like this, there might be less litigation than usual. I would argue that litigation is not profitable because the opponents are far apart politically, but rather where the outcome of the election may offer significant advantage to one party or the other. In a year of many close races, a litigated outcome may change a contest and, thereby, change the balance of power in Congress. But in a landslide year such as this is likely to be, that effect is far less likely. What difference will it make if the Ds are a minority of 155 seats vs. a minority of 156 seats, for example?
It will be very interesting to watch what happens.
Aug '10
Re: Tomorrow is a Big Day for Election Lawyers
Bring it on! We should be able to match them writ for writ and blow for blow. I'm glad there's now a heightened sense of danger from voter fraud, since it's Democrats that have profited most from it, and are the most adept and guilty, historically.
Aug '10
Re: Tomorrow is a Big Day for Election Lawyers
It's no coincidence that my first thought upon waking this morning was of Josef Stalin-- his infamous (and accurate) observation that "Those who cast the votes decide nothing. Those who count the votes decide everything" could well prove to be the defining commentary on today's elections.
Democrat chicanery is nothing new, and there are too many close races that may be decided by the Franken Factor, in which every legal trick in the book (and a few newly invented for the purpose) will be used to delay certifying the results until votes are "found" or forged in sufficient number to ensure that the Democrat candidate prevails.
These people are convinced they rule by Divine Right, and are unlikely to accept defeat on any terms, let alone do so gracefully. It would be a mistake to believe that the vote counts we see tonight will necessarily lead to all newly-elected office holders actually taking their seats.
Long before the polls close this evening the Democrats will have already shifted into high gear for Plan B, in which what you can't win, you steal.
They're skilled, experienced, and very, very good at it.
Edited on Nov 2, 2010 at 10:29amRe: Tomorrow is a Big Day for Election Lawyers
This is where the energy and enthusiasm of the tea parties collides with the intricacies of elections. Tea parties have provided the grassroots for the rejuvenation of conservative candidates nationwide. But their strength -- innocence and decentralization -- is a weakness for close elections. To navigate through the arcane election laws, which vary by state, specialized lawyers will be needed, and those will come from the political parties and their law firms. There will be elections close enough for recounts somewhere, as Richard predicts. Bush v. Gore only required that counties use the same basic standards for conducting recounts, but left unclear exactly what those are. If recounts involve the Senate, parties will pour in money into lawyers to fight to make sure a fair recount occurs. We saw in Florida 2000 how fraught with error the process of recounts can be, and the best way to reduce that error is to invest in lawyers. Here, grassroots energy won't have much purchase, aside from donations to the legal funds of candidates.
Re: Tomorrow is a Big Day for Election Lawyers
There is a lot of gamesmanship in voting (sitting in Berkeley right now, I wonder why we allow students to vote at their campuses, rather than home -- it tends to swing politics in a redistributionist way, since students are at a college temporarily, own no property, and thus have no stake in the financial health of the city beyond 4 years). But I am not saying that there is even anything nefarious going on here other than the inability of county election officials. Take the issue of ballots from men and women deployed with the armed forces abroad. Federal law requires that counties send out ballots to soldiers overseas with enough time to get them back to be counted in the elections. Several of the students here at Berkeley who work on my program to help veterans, in conjunction with students at Chapman law school, worked on a case to make sure that states and counties complied. The students found that some county officials did not know what the deadlines were and were not sending ballots out early enough. In a close House election, particularly those near military bases, this could make a difference in an election. Some might recall that absentee military ballots in the Florida 2000 elections helped Bush, though I don't think by much.
Edited on Nov 2, 2010 at 10:30amMay '10
Re: Tomorrow is a Big Day for Election Lawyers
What can be done when our soldiers' votes are not counted? Is delaying the election results until the completed ballots arrive possible? It seems that Democrats can fail to send our soldiers ballots with impunity.
If the problem can be fixed, why hasn't it been fixed before? It's hardly new. Of all the cases of voter fraud and election rigging, this is the issue that most disturbs me.
May '10
Re: Tomorrow is a Big Day for Election Lawyers
Another reason to be concerned about the lackluster leadership at the RNC. I have to think failing to ramp up for possible legal challenges would be a terminable offense at a national party committee, but I would not be surprised to learn the RNC and the Republican congressional committees are not ready. The RGA is probably ready, though.
River - I appreciate the enthusiasm but enthusiasm extinguishes very quickly during recount litigation absent a well-coordinated legal and political ground game. In 2000, James Baker steered George Bush's side in Florida through a masterful combination of legal strategy and political tactics; by contrast, the Gore effort was a rudderless mess. Similarly but more cynically, an organized Democratic caucus in 1982 essentially stole Indiana 8 from the Republicans.
As much as I like the tea party (it is, after all, the reason we're at this point), a tea party rally won't do the trick in this arena.
Edited on Nov 2, 2010 at 11:02amAug '10
Re: Tomorrow is a Big Day for Election Lawyers
I think it reveals a great deal about the Democrats that they have no problem with denying the right to vote to those men and women who risk life and limb for freedom on the front lines, while at the same time arguing furiously that imprisoned felons-- murderers, rapists, child molesters, and others whose "rights" are apparently of paramount concern-- should have this privilege of citizenship immediately restored to them.
Jun '10
Re: Tomorrow is a Big Day for Election Lawyers
Soldiers and marines are disproportionately hispanic and african-american, Eric Holder call your office! Oh wait... they are also disproportionately conservative...never mind.