Lawyers gird for possible recounts
As the frenzied race for the White House comes down to the wire, tens of thousands of partisan lawyers are mobilizing under the radar in battleground states, all steeling for one terrifying scenario: a recount that could decide the presidency.
Their objective is to head off a repeat of the Gore-Bush fiasco 12 years ago in which Al Gore won the popular vote and George W. Bush captured the Electoral College and ultimately the presidency.
"They are all bracing for Florida in 2000 -- everyone wants to be in position so as not to be disadvantaged by a court decision in a tie," says Steve Schmidt, who ran John McCain's 2008 campaign. "This [is] a preventive strategy. They are largely in search of problems that don't yet exist. It's like the Cold War and nuclear capability. You want to have what the other guy has. "
And that adds up to [a] lot. At least 5,000 lawyers in Florida alone have volunteered to serve as poll watchers for the Obama campaign "voter protection" program on Election Day -- and that's just the Democrats.
There is similar intensity on the Republican side.
"Let's be clear -- there are very large numbers of lawyers already deployed -- and ready to be deployed with hair-trigger swiftness," says Robert Kelner, a GOP election law expert who worked on the Florida recount. "The slightest discrepancy or hint that legitimate voting is being impeded anywhere will prompt an overwhelming legal show of force. Since the Gore-Bush recount, everyone is on very high alert."
Neither Democrats nor Republicans would divulge specifics about their plans in the event of a recount. Polls show very tight races in key states like Virginia, Colorado and Ohio, and the campaigns privately acknowledge they will be focused on close states.
In the event an automatic recount is triggered -- Obama top election lawyer Robert Bauer and Romney chief counsel Benjamin Ginsberg, both of whom were involved in Florida 2000, will leap into action. Bauer did not respond to several requests for comment, and Ginsberg referred Politico to the campaign.
"We have all the resources and infrastructure we need for any potential dispute or recount," maintains a senior Romney campaign aide.
The Republican National Committee has also formed an account to fund legal challenges in the event of a recount, said communications director Sean Spicer. The National Republican Congressional Committee is also training lawyers to be Election Day observers.
A Republican official admitted that in prior elections, Democrats were more equipped to identify their voters in recounts. This year, Republicans have laid the groundwork in advance, the official said.
Still, if legal expenditures to date are any guide, the Democrats are twice as nervous and doubly prepared after watching the presidency slip away in 2000.
A senior Obama official, who asked for anonymity, said that prior to Nov. 6, the campaign is "recruiting thousands of attorney volunteers to help train, educate, and observe at polling locations" in battleground states. The Obama official added the campaign has also "retained or opened pipelines to the nation's top experts on voting systems, registration databases, ballot design, student voting, and provisional ballots."
Much of the campaigns' preelection legal activity has been centered on recruiting poll watchers to ensure no irregularities occur on Election Day. Many of the problems were expected to crop up around new voter identification laws intended to be enacted by Nov. 6. Instead, many of those laws are now stuck in legal challenges, or have been shot down by the courts. Still, the army stands ready if an automatic recount is triggered anywhere.
In Ohio, for example, both sides are on edge given the closeness of the race there, the 18 electoral votes at stake and the state's history of voting irregularities. Although George W. Bush won the state decisively in 2004, problems with punch-hole voting machines, complex regulations regarding provisional ballots, and an electronic machine that gave Bush several thousand undeserved votes, caused Democrats huge headaches.
Planeloads of lawyers would descend on the Buckeye State to observe an automatic recount, prompted if the winning candidate wins by less than one-fourth of one percent. And provisional ballots in Ohio won't even be counted until 11 days after the election. The Obama campaign has 131 field offices in the state primed to deal with such emergencies, and Romney has 40.
Major unions are also assembling teams of attorneys to work as election monitors. The AFL-CIO, for one, will have a team of 2,000 volunteers, including about 300 labor attorneys, said Angelia Wade Stubbs, an associate general counsel for the AFL-CIO. They'll be stationed in six battleground states: Nevada, Florida, Ohio, Michigan, Pennsylvania and Wisconsin.
The labor attorneys will also man a "command center" where they will take calls from voters on issues ranging from locating a polling site to resolving conflicts when people are told they don't qualify to vote, Wade Stubbs said. The remaining non-legal volunteers will be posted at polling places to observe any issues and report them to the attorneys.
"The main reason that we are out there is to help protect the democracy and we are concerned about the future of working families, and this is just one of those things that we do as union lawyers," Wade Stubbs said.
Obama spokesman Adam Fletcher said that the campaign "will continue to closely monitor developments between now and Election Day, but looking forward, we're focused on making sure that every voter ... is empowered to exercise their right to vote."
Interest has been so intense in voter protection and anti-fraud efforts that the Obama campaign recently drafted a memo, laying out its concerns state by state.
Written by senior strategist Stephanie Cutter, an attorney, and Bauer, the Democrats' longtime election-law point man, the memo makes clear that initial efforts will be focused on ensuring that Obama supporters confront no impediments at the polls.
"Contrary to some reports, there have not been far-reaching and significant changes to voter ID laws in the battleground states since 2008," the memo advises. "In states like North Carolina, Iowa, and Michigan, proposed changes were rejected and did not become law; in other states like Ohio, New Hampshire, Wisconsin and Pennsylvania, legal challenges have proven highly successful in turning back unconstitutional attacks on voting rights."
In addition, the Obama campaign launched a new TV ad this week, reminding supporters of the Florida recount in an effort to head off complacency.
The ad is called "537" -- which is the number of votes that ultimately separated Bush from Gore in Florida -- out of about six million cast in the state. The narrator dramatically refers to "the difference between what was and what could have been."
Steven Rosenthal, the Obama campaign's general counsel in Florida, said lawyers will be at the polls to make sure they are open when they should be, that lines don't get too long and that voters aren't asked to provide unnecessary identification. Poll watchers are particularly critical in Florida this year because the Republican legislature shaved off a week of early voting.
"We have the machinery in place to avoid problems. You hope for the best and prepare for the worst," Rosenthal said. "We're ready for anything."
Smaller battleground states are less likely to face contentious fights and therefore may not require the same legal presence from the Obama and Romney campaigns.
In Iowa, Obama general counsel Steven Wandro said that the 99 county election auditors make for an orderly process. "Iowa being such a small state, you don't see the same kind shenanigans you might see in other states," he says. "Everyone knows everyone. It's not contentious. The auditors are your neighbors."
Despite the campaigns' caution, experts in election law say there is little chance that complications of the magnitude of Florida 2000 will arise.
When Gore conceded to Bush in 2000, Bush was ahead by 50,000 votes, but his advantage shrunk enough over the course of the night to trigger an automatic recount. The recount, in turn, spawned charges of voter irregularities and 36 days of fights and lawsuits that ultimately caused the U.S. Supreme Court to weigh in and decide the election.
Emily Schultheis contributed to this report.