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Legal Battle for Presidency Underway

Lawsuits Over Election Rules Pending, With Both Sides Gearing Up for More

By Jo Becker
Washington Post Staff Writer
Wednesday, October 20, 2004; Page A01

The ballots have yet to be counted, much less recounted. But attorneys for President Bush and John F. Kerry are already engaged in an intense legal battle for the presidency that could once again give the courts a say in who is declared the winner.

With less than two weeks to go before Election Day, an unprecedented number of lawsuits challenging basic election rules are pending in many of the battleground states. Both sides are in the final stages of training thousands of lawyers who will descend on the polls on Nov. 2 to watch for voter fraud or intimidation.

John F. Kerry responds to cheers in Wilkes-Barre, Pa. (Gerald Herbert -- AP)

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Each campaign has teams of attorneys ready in the event of a recount in one or more states. Both are hitting up donors to pay the legal tabs in case there is a disputed outcome that leaves the winner in doubt after the polls close.

Four years after the election between Bush and then-Vice President Al Gore deadlocked in Florida and produced a 36-day legal whirlwind ultimately decided by the U.S. Supreme Court, courtroom battles have become as routine a part of the campaign as rallies and television ads.

The result, experts say, is a race shaping up to be the most litigious in U.S. history.

"Bush v. Gore really let the genie out of the bottle," said Richard L. Hasen, an election law professor at Loyola Law School in Los Angeles. "Election law has become just another part of the political strategy of the parties."

Both sides say they have assembled what amounts to the largest virtual law firms in the country, relying on new volunteers as well as old hands who cut their teeth in the 2000 recount.

In Florida, the Kerry team is headed by Miami lawyer Steven Zack, whose partner, David Boies, argued Gore's case before the U.S. Supreme Court in 2000. Bush's Florida team is headed by Hayden Dempsey, who in 2000 worked as a lawyer for Florida Gov. Jeb Bush. Barry Richard, a Tallahassee lawyer who argued Bush's case before the Florida Supreme Court four years ago, is on tap to defend the president again if necessary.

Nationwide, the Democrats plan to have more than 10,000 lawyers standing by at the polls in battleground states to identify and address voting problems, particularly in the heavily minority precincts that saw a disproportionate number of ballots discarded in 2000. About 2,000 lawyers will be stationed in Florida alone, Democrats say.

With memories of Palm Beach County's infamous "butterfly ballot" still fresh, the legal team is scrutinizing ballot designs and has money set aside for conducting a public education campaign should a confusing ballot layout make that necessary.

Meanwhile, Democratic legal specialists are ready to wage recount battles in as many as five states at once. The Kerry campaign said it has raised more than $3 million for legal expenses.

"This has been one of the top, if not the top, priorities," said the Kerry campaign's general counsel, Marc Elias. "The legal team is satisfied that we are working for a candidate who will not shy away from a full engagement with the other side."

Republicans say they will have lawyers covering 30,000 precincts who will be prepared to challenge at the polls the eligibility of voters whose registrations seem suspect. The GOP has assigned its state party organizations to lead the effort.

In Florida, Dempsey said he is primarily concerned with ensuring that fraud and illegal voting by felons do not dilute the votes of those eligible to cast ballots. Republican sources say Dempsey will command a core team of about 265 lawyers, but he is not saying.

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