The large number of too-close-to-call congressional races in states like Colorado, Nevada, Illinois and West Virginia has some observers predicting more contested elections and recounts this year. At the very least, a slow count of ballots in states like Washington and Alaska is expected to keep many voters in suspense.
“I’m sure Democrats will say the same thing, but Republican campaigns are prepared for the reality that many of their races will not be decided on Election Day,” said Paul Lindsay, a National Republican Congressional Committee spokesman.
That fact has prompted both parties to place their best legal minds on alert, and, in some cases, to mobilize days in advance in areas where reports have surfaced of pre-election problems. Hundreds of lawyers are ready to pounce on any claims of voter fraud, machine malfunctions and polling place disruptions.
“We’re focused on making sure that doesn’t happen on Election Day,” said Deirdre Murphy, a Democratic Senate Campaign Committee spokeswoman said.
This happens every election cycle, the threat of dramatic recount struggles. But Florida’s 36-day recount fight in 2000, which left a nation wondering who would be its next president, forever changed how vote challenges are viewed.
Nothing is unheard of, and everything is possible. It took eight months to formally declare Democrat Al Franken the winner after Minnesota’s 2008 Senate election.
Lawyers across the country already have chased down reports of irregularities, part of a pre-election ritual fueled by partisans who are concerned that their candidates will suffer from voter and ballot fraud. Consider claims in Nevada of electronic voting machines that automatically recorded votes for a candidate when tested; phony absentee ballots mailed to some Pennsylvania voters with the wrong return address; and armies of volunteers in Wisconsin vowing to chase away those trying to vote who aren’t properly registered.
“The overwhelming number of them turn out not to be true,” said Ben Ginsberg, a Washington lawyer who helped Republican Norm Coleman’s campaign in his 2008 bid against Franken and a key member of Bush’s Florida legal team in 2000.
“I think you’re ever vigilant about these sorts of issues,” Ginsberg says, but he admits that “a lot of lawyers tend to get over caffeinated at this time of year.”
The big problems don’t usually surface unless there are razor-thin races. And there are many prospects for those this year, if polling is to be believed. Eight states have candidates in House and Senate races who are running nearly even going into Tuesday’s election, including Nevada where Republican Sharron Angle threatens Senate Democratic Majority Leader Harry Reid.
If candidates in those and other tight races don’t win convincingly, the focus will shift after Tuesday to how votes are counted, and how provisional and absentee ballots will affect the races.
New York voters already are expecting problems thanks to new electronic voting machines that proved less than reliable in the September primary, which New York Mayor Michael Bloomberg called a “royal screw-up.”
If elections come down to a few hundred votes, problems with voting machines, absentee ballots and challenges made against voters with registration questions could make a difference, said Wendy Weiser, a lawyer with the Brennan Center for Justice in New York.
The group has joined others in the Election Protection coalition to help voters handle Election Day problems, including what to do if there are problems with machines or challenges to a voter’s registration.
Partisan groups and even television networks have set up hot lines to monitor voting problems, including voter registration challenges. There are even iPhone applications that allow voters and polling observers to upload photos of irregularities.
More states have turned to electronic voting machines to help simplify casting a ballot. But the election process still varies state by state and there is no consistent method to handle vote challenges and recounts, all of which make for big business for election lawyers.
A decade after a presidential election boiled down to ballots with hanging chads in Florida and confusion over what votes to count, the country’s election process still leaves a lot to be desired, said Joseph Birkenstock, the Democratic National Committee’s former chief counsel.
“I really don’t think we’re in a significantly better position,” he said.