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October 29, 2004



PAUL GIGOT:  Welcome to the Journal Editorial Report.  The big story this week is what may be coming next week.  We vote on Tuesday but we may not know the result for days or weeks.  Consider this, the polls say the election is too close to call.  Provisional ballots may be cast by millions of voters whose eligibility is questioned at the polls.  The states expect an unprecedented number of absentee, military, and overseas ballots.  both parties have assembled thousands of lawyers to challenge the ballot counts, especially in critical swing states.  No wonder we get this quote from Doug Lewis of Election Center which helps advise Election officials:  "We're all on our knees.  Dear Lord, let the winner win big -- whoever it is."

With me to discuss all this are John Fund, our expert on voting and voter fraud and author of the book Stealing Elections; How Voter Fraud Threatens our Democracy, Dan Henninger, Deputy Editor of the Wall Street Journal Editorial Page and Susan Lee also of the Editorial Page.

John, 10,000 lawyers on either side are we really looking at another Florida rid large this time from 2000?

JOHN FUND:  Paul, that many lawyers represent weapons of mass destruction against our democracy.  I mean they can take a medium sized country and turn it into rubble overnight. 

Obviously some election lawsuits are good because you have irregularities.  But with that many lawyers they're going to be looking for trouble and litigating I think ludicrous things and turning Election Day into Ïelection monthÓ if the states are close. 

PAUL GIGOT:  Well, last time it was hanging chads.  What are we likely to look at this year that will be litigated over?  For example, there's this phenomenon called provisional ballots.  What are they?

JOHN FUND:  If you go to a polling place and your name is not on the voter registration rolls you have a right to cast a provisional ballot.  This is the first federal mandate requiring this in all 50 states.  Then your ballot is separated out, put aside and it's counted after all the other ballots are counted.

Here's the problem, let's say Bush is ahead 5,000 votes in Pennsylvania.  The whole presidency weighs on what Pennsylvania does.  Both sides will know how many of the provisional ballots that are still to be counted, let's say there are 80,000, they need.  Each of those provisional ballots becomes a lawsuit.  Each of those provisional ballots will have to be investigated individually.

In Colorado where one race was decided in provisional ballots Paul, it took 35 days to count them all.

PAUL GIGOT:  What states are these likely to be highly contested?  Because I know in Ohio for example there was a dispute about whether you'd be able to cast provisional ballots outside of the precinct in which you allegedly reside.  Is Ohio going to be a crucial state here?

JOHN FUND:  Yes, in addition Ohio has punch card voting.

PAUL GIGOT:  Ah, the hanging chads from Florida.

JOHN FUND:  They'll be back.  Ohio was going to go to electronic machines and then the internet conspiracy theorists discredited them so now they're back to punch cards.  So we're going to have the people looking through the light again.

PAUL GIGOT:  Now another issue are absentee ballots which hare a lot more widespread than even four years ago.  By some reckoning they're going to be something like 30 percent of all balance cast absentee or early.  How big a potential problem is this?

JOHN FUND:  Well, two problems; one they take an awful lot longer to count.  If you have 30 percent early or absentee voting it could take days to count them all if the election is close and get a winner.  In addition, absentee voting is much more prone to fraud.  It's a paper ballot.  It's cast outside the jurisdiction of election officials and there have been lots of examples of nursing homes for example having absentee ballot fraud.

A former congressman from Pennsylvania pled guilty to nursing home voter fraud recently.

PAUL GIGOT:  How did we get to this situation?  Because I thought we were supposed to have solved this Dan, with the Help America Vote Act (HAVA) of 2002.  I mean both sides said that this was going to solve the problem or at least go a long way to it.  What's going on here?

DAN HENNINGER:  Well the Help America Vote Act is an outgrowth of what happened in Florida in 2000.  And Florida was the thing that allowed the lawyers inside the door.  I mean what John is describing to us here is obviously a formula for not knowing who the president is Tuesday night or even Wednesday morning.  And what we found out in Florida was as soon as there's delay of that sort the lawyers start filing lawsuits. 

And I've talked to some experts on this and I said well is there an efficient legal way of shutting this process down?  Is there any silver bullet?  And he said absolutely not.  Once this starts it's a ...

PAUL GIGOT:  A doomsday machine.

DAN HENNINGER:  It's a doomsday machine.

PAUL GIGOT:  Susan, can it be stopped or are we headed to the Supreme Court once again?

SUSAN LEE:  Oh, I can tell you how we got here.  There is an enormous incentive to litigate and to litigate aggressively.  There are a few studies.  One university, Columbia I think, law professor found that aggressive litigation can change the result by one percentage point.  Now given that in general in all elections the error rate is one to two percent, when lawyers start looking they'll find something.  And the more they find the more possible it is to actually change the results.

PAUL GIGOT:  So the lawyers are going to be in.  But there's a question here about just how far up the judicial chain of command we go, is it not?  Because these are state laws.  All of these are state statutes so ultimately you'll get into the state court system and the state Supreme Court will have final say.  The question is, is the U.S. Supreme Court going to again become the final arbiter of this knowing all of the grief that the justices took for what happened in 2000?

DAN HENNINGER:  Well, there will also be a parallel set of lawsuits in Federal Court.  People will sue in every court possible.  That's what happened in Florida.  The U.S. Supreme Court is going to try to keep their hands off of this as long as possible and I think they'd probably say lets go to the House of Representatives because our integrity was impugned so much last time we don't want to go there again.

PAUL GIGOT:  There have been some intimations from Stephen Breyer and justice Rehnquist, Chief Justice recently, that they don't really want to go through that again because it does involve the Supreme Court in electoral politics, partisan politics and there's a price to be paid for that.  Dan?

DAN HENNINGER:  Well, I think if they're forced to take it up they will take it up.  I think that this time, unlike Florida in 2000, the involved courts are going to try to take this issue as seriously as they can because we have the threat here of the United States turning into a banana republic. 

And the last time it was all so quick.  Remember that we were watching the televisions from hour to hour to see what the courts did?  They've had four years to think about this now and I think they're going to try to take it seriously this time.

PAUL GIGOT:  Alright, let's broaden this discussion out a bit and think about why this election, all the polls show it's close, but why Susan is it so close and so bitterly fought?

SUSAN LEE:  Well, I think a more interesting question it was exactly this divided four years ago.  Now it's as close four years later.  Of course some groups have switched sides.  You know it's soccer moms and now we have security moms.  What I want to know is, and I don't really have a good answer I've been thinking about it, is why for four years this country in the face of tremendous amount of events, big, huge serious events and crises is still so down the middle.  I don't know.

JOHN FUND:  Well, culturally we have this big gap between people with more traditional values and people who have a more secular outlook.  And that's largely reflected now because the parties are dividing along those lines roughly.  We no longer have regional differences in the parties, it's now cultural differences.

But the other reason why things are so close is because the country is so bitterly divided also on the direction of government.  Whether it should be larger or smaller.  That's about a 50/50 question.

DAN HENNINGER:    Yeah, and I would pick up John's point.  I think the country is really going through this transformational period.  And a lot of it has to do with the realization that we really do live in a competitive global economy now and that puts pressure on jobs, it puts pressure on costs.  And George Bush has been proposing things like Social Security privatization and health savings accounts that put responsibility back more on the individual as opposed to the entire post-war period where the government had this kind of paternalistic attitude towards society.

And I think there are a lot of people who are a little bit nervous about moving forward into a globally competitive era.

PAUL GIGOT:  You had a democratic majority dominating the White House or the Congress for two or three decades for the most part here and then for the last 40 years, starting really with Goldwater, an ascendancy with Reagan and then another blimp up with Gingrich and now with Bush and the republican Congress a chance for the republicans to have total control of the government White House and Congress for a new four years and those are very high stakes.

JOHN FUND:  Well, that's why I think the democrats in part of both angry and desperate.  They're angry because of what they felt that 2000 was all about and they're also desperate because if they lose another presidential election and still lose Congress they may lose the policy war and actually see policies change. 

PAUL GIGOT:  Alright John, last word.  Thank you very much.  Next subject.