Lawsuits not the answer in disputed elections

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 past 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.

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 demagoguery. 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 have landed without incident late Tuesday night or early today. Will America be greeted sometime today 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?

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 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.

The worst of all possible outcomes would be 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.

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 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.

Jack Kemp, co-director of Empower America, wrote this column for Copley News Service. His e-mail address is