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Editorial

The Rule of Lawyers

Tuesday, October 26, 2004; Page A24

EARLY VOTING has already begun in this year's presidential election, amid encouraging signs of increased participation. The parties and their surrogates have registered many new voters in battleground states, and turnout is expected to be heavy. That's good, but it creates the potential for election night problems. The contested election in Florida four years ago taught both parties that they ought to vigorously protect their legal interests in elections, so armies of lawyers from both camps are fanning out across battleground states to cry foul -- and go to court -- at the slightest whiff of a problem. The dust-ups have already begun: Republicans worrying about fraud in the registration of so many new Democratic voters, Democrats worrying about local officials suppressing minority turnout. Between new voting equipment all over the country and a ballot initiative in Colorado that would retroactively divide the state's electoral vote, it's easy to imagine not one Florida this year, but several.

This is a horrible prospect. If the effect of all this preemptive lawyering is to increase access to the ballots and avoid problems on Election Day, that will be worth celebrating. But there is a critical difference between making a maximum effort to ensure a fair and honest playing field and challenging results that have been ascertained. Another election in which the outcome is not resolved for days or weeks risks not merely another divisive controversy. It risks etching legal wrangling into the process of voting itself. Voting, which should be the central event of democratic life, could become merely the factual record for litigation in which the actual selection takes place. That would be highly damaging to American democracy.

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Over the long term, new voting technologies may prove their mettle as election reform continues and rules are better understood, and then the perceived need for a legal ground war in every election may fade. In the meantime, there are only two scant grounds for hope. One, as election law expert Richard L. Hasen put it in the online magazine Slate, is "the election administrator's prayer: Lord, let this election not be close." Failing that -- and a landslide does not seem to be in the cards -- the only genuine protection against establishing election-by-litigation as a national tradition lies with the candidates themselves. Both Richard Nixon in 1960 and Gerald Ford in 1976 refrained from challenging close state results in hotly contested elections. Despite the cadres of lawyers with briefs at the ready, it would be nice to think that the candidates this year would show a similar willingness to put the national interest first. Ideally, they would commit to do so before Election Day.


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