Jewish World Review Oct. 15, 2004 / 30 Tishrei, 5765

Collin Levey

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Can America handle Dems' ‘If we lose we will sue’ tactic? | Another Election Day tie might be rough on America, but it would benefit one Democratic interest group: the trial lawyers. As the campaign heads into the post-debate homestretch, legal eagles across the country are lining up to sue the pants off any state where the results fall within the margin of error.

Call it the sour-grapes insurance policy: If John Kerry loses, Democrats can always use their lawyers to say the Republicans stole the election — again.

Marc Elias, the general counsel for the Kerry team, has said the campaign intends to be able to "fight five statewide recounts and still have funds available to the campaign." The New York Law Journal reports that the local Lawyers Committee for the Kerry Campaign has raised $2 million to support recount efforts.

The legal talent won't be needed in New York, of course, but that's what rent-a-jets are for. Democrats have already launched lawsuits in Florida, New Mexico and Ohio and the Kerry camp has set up its own nationwide legal network, in lieu of the usual local Democratic Lawyers Associations.

"It's a case of Florida gone national," says University of Virginia professor Larry Sabato, "They're ready, and I take that as a threat, not a promise."

The lawsuits may materialize even in the wake of a decisive Bush victory: Democrats have learned that hinting darkly about the "illegitimacy" of a Republican president keeps their partisan fervor on the boil between elections.

Indeed, that effort is already under way. Later this month, a federal judge will hear a case brought by Rep. Robert Wexler (D-Fla.), who wants Florida to require a paper record of electronic votes. And on Tuesday the AFL-CIO and other unions sued Florida over alleged "disenfranchisement" of new voters. The suit claims the state has failed to process new registrations (there are unprecedented numbers) in a timely manner, with a disparate impact on minority groups.

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In New Mexico, Democrats already won one lawsuit, which argued voters shouldn't have to show ID at the polling place because that would have disproportionately affected minority voters. (The suggestion that minority voters can't be trusted to bring their drivers license will strike some as a condescending insult, but never mind.) Meanwhile, the (Democratic) secretary of State bleated that the Bush administration's terrorism warnings are contrived to scare people away from the polls.

You can't make this stuff up. Former Clinton Assistant Counsel Jeff Connaughton says the Republicans are engaged in vote suppression because "when a lot of people vote, Democrats win." In short, the argument is: Any time a Democrat doesn't the win the presidency, it's a miscarriage of democracy. That's a good line to fire up the base, and rationalize defeat to boot.

Of course, rationalizing is what lawyers do best. But you'd think vigilance against voter fraud would be a bipartisan issue. As "Stealing Elections" author John Fund points out, at least eight of the 9/11 hijackers were registered to vote in U.S. elections.

In fact, many of the Democrats' legal efforts and claims of disenfranchisement are meant to thwart attempts to stop ineligible voters. Jesse Jackson and the NAACP routinely complain that, if the felons in Florida weren't "disenfranchised," Al Gore would be president today.

Hey, Gore would be president if Canadians were allowed to vote, too, or if residents of heavily Democratic districts in Florida could vote twice. Too bad those pesky election laws have been used systematically to cheat Democrats of the presidency!

All of which makes lawyers critically important to the Democrats these days and further accentuates their clout as a constituency. Think John Kerry is going to crack down on malpractice suits when he's president? Not likely.

Already, four law firms rank among his top 10 contributors, including New York based Skadden Arps. And that's not even counting the Edwards trial-bar gang whose manna — half of Edwards' war chest — was part of his appeal over union man Dick Gephardt.

For the lawyers, the delicious turn of events since Florida 2000 is about oh-so-much more than just assuring a future tort reform veto. If every election is now potentially reversible in court, the litigation lobby will finally have achieved its ascendancy over all three branches of government.

And for the Democratic Party, that seems to be a small price to pay for never having to admit they've lost.

JWR contributor Collin Levey is a weekly op-ed columnist at the Seattle Times. Before joining the Times in September 2003, she was an editorial writer and editor for The Wall Street Journal. Comment by clicking here.

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© 2004, Collin Levey