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Potential Legal Battles Over 2004 Election

November 1, 2004 at 12:00 AM EDT
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MARGARET WARNER: After the Florida debacle of 2000, Congress enacted a law called the Help America Vote Act, aimed at fixing some of the most glaring voting problems. Yet lawsuits have already been flying in some states over issues ranging from standards for new voter registrations, to polling place access for party-sponsored challengers. And both campaigns have assembled swat teams of lawyers ready to travel anywhere to litigate.

For insight into the bumps that may lie ahead, we turn to two lawyers who were heavily involved in the Florida 2000 battle, and who are on retainer to the opposing campaigns for possible legal action this time.

David Boies, retained by the Kerry campaign, is a partner at Boies, Schiller, and Flexner. He argued Al Gore’s case in the U.S. Supreme Court in 2000. And Mike Carvin, retained by the Bush campaign, is a lawyer at Jones, Day. He argued for George Bush in the Florida Supreme Court in 2000. And welcome to you both.

Mike Carvin, do you think that the problems tomorrow will be better or worse than they were in 2000?

MIKE CARVIN: I fear they could be worse, and frankly, that’s because the Democrats have filed 45 lawsuits in 18 states. They’ve argued that you can’t have challengers at the polls. Even if people vote in the wrong precincts, you need to count the vote. And even simple anti-fraud measures like checking on somebody’s identification has been challenged.

MARGARET WARNER: David Boies, I’m sure you won’t agree with the reason, but do you agree that there could be more problems, not fewer, tomorrow?

DAVID BOIES: I hope not. I hope we’ve learned something from the 2000 election. I think, unfortunately, there are a lot of Republicans out there that have not learned the lesson of 2000, and that is that it’s important to let people vote. What you see is a concerted effort to try to hold down the vote, make it difficult for people to vote, disrupt what happens at the voting places.

The Florida courts, I think, are going to stop that. The Ohio courts have already stopped that. The Republicans have tried twice now to do something to disrupt the election in Ohio. Both times the courts have rejected that.

MARGARET WARNER: Where and under what circumstances, Mr. Carvin, are the teams of lawyers who aren’t already in the states from the Bush campaign ready to litigate?

MIKE CARVIN: Well, it will frankly depend on whether they’re needed, and obviously that’s going to be in one of the battleground states. And it’s going to matter, if it matters in terms of becoming an Electoral College majority. Hopefully neither of those events will occur, so I join hands with David in saying hopefully the lawyers can stand out. Other than that, I don’t think anybody knows. It’s going to depend where there’s legal problems, and again where the result matters.

MARGARET WARNER: David Boies, the phrase we’ve heard is “margin of litigation,” as opposed to “margin of victory.” Is that the case? In other words, if there are enough problem ballots and the margin is thin enough to make a difference, that’s when you leap into action?

DAVID BOIES: Well, hopefully you don’t immediately leap into action under those circumstances, but I think that’s a necessary condition. If the margin of victory is greater than the number of disputed ballots, then you don’t have a problem. If the margin of victory is that slim, however, and the provisional ballots and the absentee ballots together are larger in number, then you have a potential problem.

MARGARET WARNER: All right. And staying with you, Mr. Boies, let’s talk about these provisional ballots, because this was something set up under the new law. Explain briefly how that works, and why there’s a potential problem.

DAVID BOIES: Sure. Under the 2002 Help America Vote Act, Congress provided that every voter who goes to the polls and is not allowed immediately to vote gets a provisional ballot that they fill out. And then, after they have filled it out, people have a chance in the days afterwards to figure out whether the voter was or was not entitled to vote.

That is an excellent idea. It’s a good step. Congress was right in establishing provisional ballots. If you’d had provisional ballots in the last election, many of the people who were wrongfully excluded from voting would have had a chance to vote and have their votes counted.

The problem is, like so many good ideas, there are practical considerations, and one of the practical considerations is that if you have a large number of these provisional ballots, it could take days to sort them through, and there really is not an organized procedure set up to do that.

MARGARET WARNER: What would you add to that explanation of the problem, Michael Carvin? And also, when do the provisional ballots actually get opened and counted?

MIKE CARVIN: After the election. And David described the procedure correctly. That’s the whole point, to not make an Election Day dispute, to give people some time to figure out the true facts.

The problem has been in the litigation sponsored by the Democrats, which fortunately every federal court has rejected. They want to turn that procedural mechanism into something that allows illegal voters to vote, which of course disenfranchises legal voters.

MARGARET WARNER: What do you mean?

MIKE CARVIN: Somebody shows up at the wrong precinct, or is registered twice, or most obviously is voting for the second time, under their theory, as long as he’s registered somewhere, we should count the vote. But the act made it clear that those issues are resolved pursuant to state law, not a federal standard.

MARGARET WARNER: Mr. Boies, unless you want to comment further on that, talk about absentee ballots, because we’ve also heard complaints from voters, particularly in Florida — I think Broward and Palm Beach County — that they never… they applied for an absentee ballot, and they never got an absentee ballot back. What happens… what recourse do they have now?

DAVID BOIES: Sure. Let me just make clear, nobody thinks anybody ought to be able to vote twice. The whole point of provisional ballots is, you get to sort it out afterwards. If somebody has cast two provisional ballots, they don’t count.

The problem with the absentee ballots is that 58,000 absentee ballots just disappeared in Broward County five days before the election. Now, they’re trying to sort through that now, and they’re trying to send out ballots by Federal Express to at least half of those people, or maybe a little bit less than half, but a large number of people. But it’s a very disturbing and troubling situation.

MARGARET WARNER: And, Mr. Carvin, if you’re a voter who wanted to vote absentee, and by tomorrow morning you haven’t gotten the ballot, do you either just have to get yourself to a polling place, or you’re out of luck? I mean, there’s no legal recourse?

MIKE CARVIN: My understanding of the Broward situation is, they straightened it out, although I’m not, you know, on the ground down there. But if you’ve made concerted efforts, and either the post office or the election folks have made a mistake, then obviously your best solution is to try and get to a polling place as best you can, so your vote does count.

MARGARET WARNER: I’d like to go on now and pair two other areas, because they’ve been paired by the parties anyway, Mr. Boies, beginning with you, and that is allegations of fraud or potential fraud which the Republicans have made — that is, that people ineligible to vote have been registered, new registrants, and accusations for the Democrats at their efforts at voter suppression or intimidation. How widespread are these competing allegations, and how would they be resolved?

DAVID BOIES: I don’t think there’s any widespread allegations of fraud. There’s been a lot of talk about fraud, but very, very few concrete examples of fraud. If there’s voting fraud, it ought to be penalized. The people who engage in it ought to be criminally prosecuted. There is no excuse for voter fraud. And I think the number of instances of voter fraud are extremely small but however many they are they ought to be prosecuted.

With respect to voter suppression, we don’t know yet the full extent of that. What we do know is that there were instances in which, for example, in Nevada, people who were registering people to vote threw away Democratic registrations. That is, again, something that I think neither party condones. There have been allegations that people who are registering on behalf of the Democrats threw away some Republican registrations in Florida.

Nobody in either party ought to condone that kind of activity. So if there’s voter suppression, if there’s voter fraud, I think both parties are united that it should not go on, and that the people responsible ought to be criminally prosecuted.

MARGARET WARNER: Do you, Mr. Carvin, think that this is going to be… present a big area that potentially could be litigated in the days after the election?

MIKE CARVIN: Well, we’ve been doing everything we can to avoid precisely that nightmare scenario. So what you do is establish the ground rules in advance, and then have some means of detecting voter fraud. David and the Democrats can say they’re against voter fraud, but as I said, they’ve tried to disable all the traditional mechanisms for figuring that out. Does somebody have a driver’s license?

DAVID BOIES: Oh, come on. That’s ridiculous.

MIKE CARVIN: That’s been challenged in court after court by Democrats. David, I can’t believe you’re…

DAVID BOIES: No, come on. Now, look at. To try to…

MIKE CARVIN: And in addition, you just said when we started the show that you don’t think they should have challengers, poll watchers at the polls, which is a traditional mechanism for ensuring that people who are dead or moved into the jurisdiction or ineligible voters aren’t voting again. If you agree with me that that should be stamped out, then I assume you’d agree that there should be poll watchers to make sure it doesn’t happen.

DAVID BOIES: The reason that the…

MARGARET WARNER: All right, go ahead, Mr. Boies.

DAVID BOIES: The reason the Ohio courts barred the Republican efforts to put people into the polls to disrupt the voting was because they knew they were not there to stop voter fraud. They were there to stop legitimate voters from voting. There is no question that what’s going on here is a smokescreen that Republicans are trying to use the boogie man of voter fraud that simply is not a serious problem to justify all sorts of activities designed to suppress the vote.

MIKE CARVIN: That kind of demagoguery has been used by the Democrats, but no court anywhere, including the Ohio courts, has suggested any illegitimate motive or purpose or effect by what the Republicans are doing.

MARGARET WARNER: So I take it from the two…

DAVID BOIES: No, but you’ve got to admit that what the Ohio court did was it stopped you twice. You tried twice to do it, and both times they stopped you.

MARGARET WARNER: Mr. Boies, let me just ask him a question. If the Republican poll watchers won’t be allowed in the polling places, which is what the federal judge ruled, then who would challenge if… the example people keep using is, Mary Poppins is somehow registered to vote. I mean, are those the regular poll workers?

DAVID BOIES: Of course. And you have people in there that are selected because they’re neutral. They do their job. They check people. People have had an opportunity for months to go through the voter rolls and check whether there were any Mary Poppinses registered. I mean, this is a joke.

How many Mary Poppins do you think are really going to show up and vote? This is something that is designed to distract attention from the real question here, which is how do we make sure that everyone who is eligible to vote and entitled to vote has a fair opportunity to vote and have their vote counted?

MARGARET WARNER: All right. And Mr. Carvin, back to you. Is part of the problem that there are no uniform national standards on these very issues that the two of you are arguing about?

MIKE CARVIN: There’s not uniform standards on how to count ballots. There’s very uniform standards on whether somebody is a proper voter. And since David just pointed out that the people who are making these decisions in the inner city areas are neutral partisans, how in the world are a bunch of Republicans going to intimidate these voters, with a neutral judge sitting right there, which is why all of these accusations are very defamatory and ring so hollow in the real world.

Can’t we have a system where we look to see if these 35,000 new registrants who don’t live where they claim to have lived are really proper voters? I just don’t see what the burden is. And remember, everyone that’s cast falsely disenfranchises a legal voter, and that’s a terrible result.

MARGARET WARNER: All right. And I’m afraid we have to leave it there. Michael Carvin, David Boies, thank you both.

MIKE CARVIN: Thank you.

DAVID BOIES: Thank you.