Election law armistice

Posted: Nov 01, 2004 12:00 AM

As I write this column we are in the stage of the presidential campaign similar to that period just after the pilot of a transcontinental flight announces he is on final approach and just before the landing gear is deployed. There is a sense of serenity before the wheels drop and the captain throttles up the engine to control the descent toward the tarmac. This brief period of time lends itself to reflection about the long-distance political flight we've been on the last few months.

To paraphrase Charles Dickens in "A Tale of Two Cities," it was the best of elections; it was the worst of elections. The two presidential candidates performed well, giving voters not only a real choice between policies (taxes, Social Security, health care, stem-cell research and foreign policy), they also articulated vastly different visions for America and offered diametrically opposed leadership styles.

Yes, there was the usual hyperbole we've come to expect of every political campaign, from dogcatcher to the highest office in the land. Perhaps the exaggeration was a standard deviation or so above the mean this year. And yes, there was the usual distortion and misrepresentation we've also become accustomed to in American politics, maybe even two standard deviations above average this year. Not praiseworthy but certainly nothing to become hysterical over.

What made this otherwise best campaign season also "the worst of elections" and made this year's presidential campaign an ominous portent of the future was the new level of litigiousness and dema?goguery. As I write, we don't yet know whether litigious wind shear will create a catastrophic downdraft and produce an electoral disaster or whether the presidential election will land without incident late Tues?day night or early Wednesday. Will America be greeted sometime Wednesday by a clear winner emerging to greet voters as their next president or will we see legions of lawyers descend the gangway with legal briefs in hand? That's why this year, for the first time in many political descents at the end of presidential campaigns, I sit clutching the armrests with white knuckles as I wait for this campaign to finally get on the ground.

If we learned anything this year it is that there clearly is much wrong with the American electoral system. Both sides are armed to the teeth with a cadre of lawyers ready to do battle. The campaigns aren't waiting. The Democratic National Committee has deployed 10,000 lawyers in battleground states, with six "SWAT squads" ready to deploy on orders from nominee John Kerry. Bush-Cheney has countered with as many as 30,000 lawyers ready to challenge any voter whose registration seems suspect. As of last week there were already 35 election lawsuits filed in 17 states. Most of these suits deal with provisional ballots resulting from ambiguities in the Help America Vote Act of 2004, enacted to correct voting mechanics and prevent a replay of 2000. Other suits are focused on absentee ballots, electronic voting and voter fraud.

As Election Day dawns, America appears to be divided right down the middle and can't decide. If the election boils down to a handful of votes in a handful of states, as it did in 2000, it is essential that voters perceive the overall process to be fair because everyone knows in their heart that a few thousand votes in every election are bought, stolen or simply cast in error. The worst of all possible outcomes is if people believe the marginal few thousand votes that decided the election were the consequence of one side having more aggressive or less ethical lawyers to torture the vote count until they get the answer they want or a better political machine to manipulate the admittedly chaotic voter-registration system or intimidate the most voters. The country can accept a candidate's winning by fewer votes than the margin of human/mechanical error; it can't abide the idea that the deciding votes came from Scooby Doo and someone's long-dead great-great-great-grandfather.

The 2000 presidential election will go down as one of the most significant elections in U.S. history, not just because the Supreme Court stepped in to establish order, but because it highlighted one of the unpleasant realities of elections: They are imperfect. Equal protection under the law is a cornerstone of our legal system. However, equal protection cannot guarantee perfection under the law.

Human beings are fallible. Machines, no matter how advanced, are not perfect. Election procedures, no matter how well thought-out, are the result of political compromise and will never satisfy everyone.

That said, we can do something: We can have national ballot standards and federal funding necessary to guarantee that these standards do not create another unfunded federal mandate that states and localities cannot meet. This can and should also be done without further intruding on state control of their elections.

There is also one very fundamental thing candidates themselves can do in the future, and voters should insist on it just as they insist now that the candidates debate. Candidates should agree that in the absence of persuasive evidence of massive vote fraud or intimidation, they will refrain from filing lawsuits on or after the first Tuesday in November and not demand a recount. It's time to renew by explicit contract between the candidates the age-old unwritten ethos that existed up until about 25 years ago. Keep in mind both Richard Nixon and Gerald Ford walked away from elections that were well within the margin of human and electoral error in a number of states.

But after Bush v. Gore, it seems both sides are armed and afraid of unilateral disarmament. They need not disarm to get out of this dilemma; they need to cooperate. They need to remember that our democracy is a fragile thing, and, although the stakes are very high personally and for their respective parties, our candidates should never put those interests ahead of the interests of our country or our democratic process.