By Jay Weiner
Sunday, October 17, 2010; B01
It is Wednesday, Nov. 3, in the wee hours of the morning after election night.
From Chicago to Las Vegas, from West Virginia to Colorado, exhausted campaign managers are on their BlackBerrys and iPhones, talking, e-mailing and texting with election lawyers and party operatives in Democratic and Republican bunkers in Washington.
The word on everyone's lips? "Recount."
As the sun rises, final returns will begin to trickle in from the most remote precincts and the most disorganized counties. Problems with provisional ballots will emerge in some states. Issues with absentee ballots will develop in others. Disputes will crop up; battle lines will be drawn. And a recount -- or two or three -- will arise somewhere, throwing the results of the 2010 midterms into doubt and leaving the fate of the House, or more likely the Senate, up in the air.
We all remember 2000. But it also happened in 2008, when the recount in Minnesota's Senate race between Democratic challenger Al Franken and Republican incumbent Norm Coleman helped nail down the 60th and (if only for a brief time) filibuster-busting seat for the Democrats. The process took eight months and showed that Franken won by 312 votes out of nearly 3 million cast. Six months after he was sworn in, Franken voted for national health-care reform. The recount affected policy and changed history.
Now, with less than three weeks until Election Day, polls show that at least a half-dozen Senate races are too close to call, and perhaps four or five times as many House contests are undecided. Of course, not all of these races will end in uncertainty, but on Nov. 3, the country could wake up and find it has several recounts on its hands.
With so much at stake this year, and with the lessons and emotions of Minnesota 2008 and Florida 2000 lingering, recounts will almost certainly trigger an all-out assault from Washington-based election stars such as Marc Elias, who oversaw Franken's legal team; Ben Ginsberg, who was instrumental in helping George W. Bush beat Al Gore; and Chris Sautter, the Democratic recount guru who has been involved in just about every major recount since 1984. The parties are already mobilizing their volunteers and lawyers.
Election laws and standards vary from state to state, so no recount is the same. (Bush v. Gore was about shutting down the Florida recount, for instance, while Franken v. Coleman was about looking under every rock for more votes.) Fraud and shenanigans are rare. The results don't get twisted; they get verified.
But they get verified differently. Some states have mandatory recounts, triggered by margins of less than, say, one-half of 1 percent. Others, such as Nevada, which could be a recount hot spot next month, simply allow the trailing candidate to call for a recount if he or she thinks victory is at hand and is willing to pay for it. The odds are not great; flipping an election result via a recount is unusual, hinging on how many mistakes election officials made or how many previously uncounted or miscounted votes the losing candidate can pick up. And in a midterm election, with lower turnout than in presidential election years, mistakes are likely to be fewer.
Still, if a candidate really wants to "pull an Al Franken" -- as tea party challenger Joe Miller suggested Sen. Lisa Murkowski might be doing when she hired a lawyer to prepare for a possible recount in Alaska's Republican primary in August -- or, for that matter, "pull a Bush" (minus the help of the Supreme Court), there is much to be learned from those 2000 and 2008 recount battles.
A few of the key lessons:
-- If you're a candidate who hasn't hired a recount lawyer yet, you're probably too late. In 2008, Franken's campaign had a local lawyer working on detailed recount plans a month before the election, way before Coleman's side. You also need to prepare early for a potential trial, or at least a series of recount-related legal hearings. In 2008, Franken's lead trial lawyer was on site in November prepping for courtroom action; Coleman didn't hire his lead trial lawyer until days before proceedings began in January. Guess who won the trial.
-- Set some campaign funds aside to cover costs. Few recounts are likely to cost the $20 million that, according to my calculations, Coleman and Franken combined to spend during their saga, but generally they cost a bundle. In 2000, the Gore and Bush camps spent a total of $17 million during their 36-day recount. Washington lawyers don't come cheap.
-- If you're behind after election night, your new favorite sentence is: "Let's make every vote count." That is your new mantra. Your job is to inform the public so it understands that a recount is part of the process, not a ploy. Praise the local election officials -- they are in charge of recounting the votes, after all -- but aggressively suggest that there are votes somewhere that may not have been counted. Ask Franken.
-- If you're the candidate who winds up ahead by a narrow margin on Nov. 3, you should also have a sound bite ready: "It's time to come together" is always a good one. That said, don't assume a win. Election night results always shift as votes from far-away precincts arrive, absentee ballots are opened and provisional ballots are examined. If you are ahead, finding a way to shut down the recount is a nifty idea. Ask Bush.
-- Ahead or behind, ask your supporters -- via text, Twitter, Facebook, YouTube -- about any irregularities they saw that might have cost you a vote here or there. Such electoral crowd-sourcing might uncover misdeeds by your opponents' backers. In Minnesota, one month into the recount, Franken's side produced an effective Web video featuring aggrieved voters whose absentee ballots were inexplicably turned down. It was picked up by local television stations and helped flush out other potential votes.
-- As the recount unfolds, understand that it exists on three levels: legal, political and public relations. To help control the narrative, identify a strong spokesperson and stick with him or her. In 2000, James Baker became the credible face and voice of the Bush recount effort. Elias, based in Washington, was Franken's surrogate in Minnesota's recount saga.
Of course, you can't pick local election officials and can only hope that they're fair, unbiased and not obsessed with the spotlight. Florida Secretary of State Katherine Harris in 2000 was none of the above, while Minnesota's Mark Ritchie was the admirable opposite.
-- Remember that a recount is really an extension of the campaign. In this overtime period -- whether you're ahead by 200 votes or trailing by 300 -- stay behind the scenes. Don't look pushy. Don't act desperate. Let your campaign and lawyers do the dirty work. When in doubt, or when ambushed by a reporter or a video camera-toting campaign staffer for your opponent, declare faith in the system.
-- If, after the process has played out, you find yourself the losing candidate, concede gracefully. Being on the short end of a recount is painful, but there's nothing worse than a sore loser. Set up a think tank, file your lobbyist papers. Move on. And who knows? There might be a Nobel Prize or an Academy Award in your future. Ask Gore.
-- If you win the recount, claim victory with humility. Take your seat, put your head down, and get to work. You may not have a strong mandate -- Franken sure didn't -- but one seat may be enough to give your party control of a chamber, no matter how tiny the winning margin of its weakest member.
And that's why any 2010 recounts are going to be knock-down, drag-out doozies. The Democrats learned from their 2000 Florida defeat that they needed to be more aggressive. They brought that attitude to the 2008 Minnesota recount, which is where the GOP discovered it needed to be more prepared, more data-focused and more exacting in its legal work the next time.
That next time is coming soon. It begins in the wee hours of Nov. 3.
Jay Weiner, a staff writer at MinnPost.com, is the author of "This Is Not Florida: How Al Franken Won the Minnesota Senate Recount."