"If all the votes are counted, Kerry will win." This is the sound bite du jour from Democrats. It is not just an expression of blustery partisan confidence. It is preparation for the political-legal conflagration that will ensue if President Bush scores a narrow election-night victory that Democrats think they can overturn.
The Democratic legal offensive has already been building in the states. As of the end of last week, there had been roughly 40 lawsuits filed, including the suits to keep Ralph Nader off the ballot. (In those Nader suits, by the way, Democratic lawyers have displayed a newfound appreciation for the niceties of election law -- they have worked, as they would put it in any other circumstance, to "disenfranchise" Nader petition-signers and would-be voters on mere technicalities.) All the suits have served to sow confusion and controversy over basic election procedures, which will come in handy if Democrats feel the need to urge the tossing aside of all reasonable election standards and safeguards in order to "count all the votes."
That phrase isn't quite what it seems. What Democrats have in mind in particular is so-called "provisional ballots." The 2002 Help America Vote Act says that any voter whose registration is uncertain, or who is unregistered, can still cast a provisional ballot. Then, after the election, the voter's name is checked against public records to ensure his eligibility and whether his vote should be counted.
In theory, it is a sensible idea, giving a voter who is the victim of some bureaucratic snafu the chance to vote. But the Democrats hope to turn the intention of the law on its head. Provisional ballots are presumed unlawful, unless demonstrated otherwise. They are votes that before HAVA would not have been legal. Many of them will deserve rejection on the merits, but Democrats will create pressure to count them all, no matter what -- "count all the votes."
Given the bogus registrations that have already been exposed by local news reports in places like Colorado, it is not hard to see the potential for fraud. If Democratic operatives have been keeping track of registrations, including bogus ones, it will be possible for them to try to "vote" those bad registrations on Nov. 2. And who can doubt that certain elements of the Democratic Party would feel morally justified in stealing this election as payback for Florida 2000?
The looser the provisional-ballot rules, the easier it will be to manipulate the system. Democrats have filed suits in key battleground states appealing to judges to overturn state election law to loosen the rules concerning provisional balloting -- with some initial success in Ohio and Michigan. Judges overturned state law to rule that provisional votes must be counted even if cast in the wrong precinct.
During the weekend, the 6th U.S. Circuit Court of Appeals correctly struck down the Ohio ruling, and stayed the Michigan ruling, which will likely be overturned as well. HAVA clearly leaves it to state law how exactly to deal with provisional ballots. In any case, wrong-precinct balloting raises the prospect of someone going from precinct to precinct merrily casting provisional ballots, in what Ohio's Republican secretary of state, Ken Blackwell, has called "stop and shop" voting.
Despite the legal setback, Democrats will still play provisional balloting for all its worth. The Associated Press reported last week that John Kerry will declare victory on Election Day, even if he is behind. That will help Kerry hang on politically, while pressure is created to count all the provisional ballots and short-circuit efforts to determine their validity. Racial politics will play a role in the Democratic advocacy, as they will argue that many of these provisional ballots belong to minorities "disenfranchised" by having to abide by the letter of election rules.
So the Democratic sound bite leaves out an important detail: "If all the votes that shouldn't count are counted anyway in a close election, then Kerry will win."