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Another tight race could end in court

WASHINGTON -- Republicans and Democrats have enlisted thousands of lawyers and armed themselves with prepared legal complaints to be ready to challenge the results of the election in any key state where the vote is close, raising the possibility that this tight contest will once again be resolved by the Supreme Court long after the polls have closed.

The groundwork is already being laid in legal skirmishes around the country. Lawsuits have been filed in the battleground states of Florida, Missouri, and Ohio over which ballots cast by questionable voters will be counted and which thrown out.

A Colorado ballot initiative that could split its electoral college votes proportionally instead of winner-take-all is also being challenged.

If the margin of victory is again narrow, any of those issues -- or some other one not foreseen -- could change the outcome and campaign lawyers are ready to keep pushing those issues long past Election Day. Both parties are training legal observers who will be stationed at precincts in swing states, ready to accuse the other side of fraud or intimidation.

"We could see a lot of this coming back after the election if it could make a difference in the outcome," said Barry Richard, who is leading the Bush campaign's courtroom team in Florida. "Then of course there's all the stuff we can't really think of at this point. Lawyers can be pretty creative."

Election law specialists say the mobilizing of legal armies demonstrates that the Bush vs. Gore decision, which the Supreme Court billed as a unique event, instead opened a Pandora's Box of potential litigation. Some legal scholars also fear that with so many partisan lawyers invested in preparations to attack, the chances of a lawsuit are heightened.

"If the election is very close in states that would make a difference in who has 270 electoral votes, we're going to see massive litigation," said Pepperdine Law School professor Mark Scarberry. "There is a psychological investment and a mindset that the other side is going to try to steal the election. That's very unfortunate and can be self-fulfilling in terms of litigation."

With President Bush and Senator John F. Kerry locked in a dead heat less than two weeks from the election, any one or several of 10 swing states has the potential to be the next Florida.

Some problems from last time have been corrected. Florida has abandoned punch card ballots, and other states that still use them, such as Ohio, have established uniform criteria for recounting them if necessary: A hanging chad, for instance, must have at least two punched corners to count.

But, although the legitimacy of "pregnant chads" is resolved, new issues loom.

"We have an unprecedented number of newly registered voters," said Joseph Sandler, counsel to the Democratic Party. "We have new electronic voting equipment. You never know what issue is going to create a problem."

Ironically, much of the potential for confusion stems from a reform passed by Congress following the 2000 presidential election debacle in Florida. One of that state's many problems was a flawed voting roll purge list of the names of convicted felons, a mistake that kept some legal voters who showed up at the polls from casting ballots.

The Help America Vote Act of 2002 required all states to allow people who show up at a precinct to vote, but those who are not on a registered voter list must cast what is called a "provisional ballot." Later, if it turns out that the person should have been allowed to cast a vote, his votes will be added to the tally.

However, Congress did not specify which provisional ballots should be counted. Already, lawsuits have arisen over whether provisional ballots cast at the wrong precinct are valid, an issue that will not be resolved before Election Day.

It also remains unclear how much research local canvassing boards must conduct into each provisional ballot before ruling on their validity, and questions could also arise over the standards used to throw out absentee ballots filled out incorrectly. Depending on the precincts affected, either party could be hurt or helped by local canvassing board decisions. Both are prepared to attack or defend them in court over the constitutional guarantees of due process and equal protection under the law.

Moreover, if one county's officials appear to be using different standards than another's, the parties are prepared to invoke the precedent of Bush vs. Gore, in which the Supreme Court halted the Florida recount because there were no statewide criteria for determining which disputed ballots counted.

In Florida alone, hundreds of lawyers have volunteered to help out each side. The Kerry campaign's team is being headed by Miami lawyer Steven Zack, who said he is confident that Kerry will win "if everybody who goes to vote has his or her vote counted."

Zack would not say how many lawyers he has, but said that there are days in which he gets as many as 50 new volunteers calling him up and asking to get involved. Because early voting has begun in Florida, these volunteers are already working, he said.

"Precinct workers have asked voters for additional identification because they didn't know better, and we were able to get them on the phone with elections supervisors and explain that that is against the law -- you accept the voter registration card," Zack said. "People were in line at 5 p.m. and told to go home, and with a call to the supervisor, we were able to get those people to vote."

The national Democratic Party has prepared five teams of lawyers who can fly to five different states and argue for recounts concurrently. On the Republican side, all those preparations are being handled by the state parties.

The Republican efforts in Florida are being headed up by two Tallahassee lawyers in the powerhouse firm of Greenberg Traurig. Hayden Dempsey is leading the poll watching teams, and Barry Richard is handling preparations for courtroom action.

Meanwhile, the swing state of Pennsylvania is embroiled in a dispute over absentee ballots that were late being mailed out because of a fight over whether Ralph Nader would be on the ballot. The question will be whether military and overseas voters have enough time to get their ballots and return them by the deadline to be counted.

Another wild card is a ballot question in Colorado that would amend the state's constitution to apportion its nine electoral votes proportionally, rather than winner-take-all.

If voters approve the change and the state winner loses the presidency because of the lost electoral votes, his campaign would argue that under the Constitution only a state legislature can make such a change. Another possible challenge would argue that the change cannot be applied retroactively to this election because the rules have to be in place ahead of time.

"If it does pass and the change in the awarding of electoral votes is within the winning margin, there is a huge potential for litigation," said Richard Hasen, an election law professor at Loyola Law School in Los Angeles.

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