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The Overlitigation of Elections:
Why It's Happening, How It May Affect 2004's Results, and Why Federal Interference Is Making Things Worse


Tuesday, Nov. 02, 2004

There is a famous photograph of President Harry Truman holding up a newspaper prematurely proclaiming his Republican opponent in the 1948 election, Thomas Dewey, the winner. In today's world, little more than a half a century later, the headline the very next day would be, "DEWEY FILES CHALLENGE, ALLEGES MASSIVE FRAUD BY PRESIDENT."

With lawyers and lawsuits being filed daily that affect virtually every facet of our lives, perhaps it should come as no surprise that even before this 2004 presidential elections, lawyers for both major parties have filed preemptive challenges and lawsuits contesting the conduct of the election. Still, it is deeply saddening to witness this new phase of American politics.

We are rapidly diminishing a freedom that so many of our countrymen fought, bled and died to realize: the freedom of each citizen to vote and to have basic assurance that his or her vote will count. The principle of "one man, one vote" is fast giving way to a reality in which battalions of lawyers, not citizen voters, can tip the balance of power in an election.

From my perspective, this is an intolerable breach of our democratic soul. Once the courtroom becomes the surrogate, or the trump, of the town square, we lose the essence of accountability that keeps us going as a free nation.

This Presidential Election May Be Even More Overlawyered Than the Last

The phenomenon of overlitigated elections had, perhaps, been quietly brewing for years. But of course, it came into sharp focus just four years ago, in the 2000 presidential election. It has now moved into high gear. And while 2000 had plenty of troubling portents, this year the slippery slope seems much slicker.

Already, the lawyers on either side are out in the field, preparing lawsuits, both boilerplate and novel, and laying the groundwork for a flood of litigation to challenge everything from ballot-box-stuffing (allegedly done by the Democrats) to voter intimidation (allegedly done by the Republicans).

Columnist and author John Hunt recently reported a bevy of early lawsuits. In New Mexico, state officials were asked recently to investigate how a 13-year-old boy and his 15-year-old friend managed to register to vote. In Missouri, the Democrats sued to make St. Louis, a Democratic Party bastion, the only place in the state to allow citizens to vote early. And these suits, doubtless, are only a sprinkling over a dam that will soon be overcome with litigation.

Even though the "what" of this brave new world of voter manipulation is well-documented, the better question, at least in my mind, is why? Why is it happening?

Some Reasons to Expect Overlitigation: The Federalization of Voting Standards

To begin, a few novel electoral developments seem tailor-made to produce litigation.

This year the states will see the first widespread deployment of electronic (that, paper-less) voting machines.

We also have the new creature of the "527 organizations" -- through which wealthy donors sidestep campaign finance laws by funneling millions of dollars to "non-partisan" groups. One example of a 527 organization is the so-called "Swift Boat Veterans" that have attacked Senator Kerry's war record. Another is "America Coming Together" (known simply as "ACT"), which employs an entire stable of well-known Democratic operatives. These unaccountable "voter education" groups augment the huge ground operations of both campaigns, and ratchet up the level of rhetoric many decibels.

Another new development is the increasing federalization of voting standards around the country. In the current election, the various new federal rules, mandates and monies will, because they are untried, encourage litigation and further imperil the perception of legitimacy in outcomes.

The Founding Fathers, whose disdain for politics was well known, sagely vested the bulk of electioneering procedures to the various states. Granted, this autonomy resulted historically in a host of abuses - but they have been largely rectified over the decades. And granted, we should never be blind to the possibility of true abuses occurring again. Nevertheless, there is much to be said for the Framers' vision: Their state-based system served to diffuse and dilute the ability of the powerful few to manipulate national election outcomes.

There is an appropriate role for the federal government to play in elections: It should fight tactics that infringe the U.S. Constitution. But short of a constitutional violation, the federal government ought not to meddle too much - for it prevents the states from fixing problems "in house," and "in house" is by far the best way to address these problems. Voting is an extraordinarily local process, with local concerns and local exigencies affecting turnout and results. It demands a localized solution.

Yet federal law has now taken a very different tack. For instance, federal law now allows every voter to cast a "provisional ballot." Why? Because Congress is continuing the time-honored tradition of offering a knee-jerk nationwide reaction to what was really a specific local problem - the "hanging chads" in the Florida vote count of 2002. Look for litigation about these ridiculous "provisional ballots" - for every one that is cast could lead to a post-election lawsuit.

Additional Reasons for Overlitigation: Polarized Politics and a Glut of Lawyers

Another reason why we find ourselves in this sad state of election affairs is the acute polarization of politics in America. For whatever reason, the battles between the blue and the red states have raised the political debate far beyond vitriol, to a place where the ends are increasingly beginning to justify the means; and where the machinations of the other side prevent partisans from acknowledging the system as self-correcting.

Accordingly, the talons get drawn before the votes are even cast. The courts are then seen as an entirely appropriate political means to sway a close election.

Finally, perhaps the overlawyering of politics is simply a symptom of the glut of lawyers in America. When I was in law school just three decades ago, annual bar admissions were only about two-thirds of what they are today. The past 50 years, alone, have seen more than 50 new ABA-accredited law schools open their doors. Today, the law and overlawyering infuse every social, economic and, yes, political transaction we engage in as Americans.

The Constitution built a neatly complex system of representative democracy in America, which realized a surprisingly simple premise. The premise was this: Broad political questions about the allocation of power should be left to politics; in contrast, individual disputes over basic justice should be resolved in the courts.

Now, however, the lines between these clear categories have blurred, until they are seen as one and the same. Increasingly, the courts are seen as just another ballot box or voting booth, especially when the real ones don't give partisans the results they're looking for, or expect.

The grave danger, however, is that this politicization of the courts will result in less fairness, less justice and less accuracy in the expression of popular political will through the electoral process. Once that happens, nothing less than democracy itself will be on the chopping block.

Bob Barr served in the U.S. House of Representatives from January 1995 to January 2003. He was a senior member of the Judiciary Committee. He now practices law, writes extensively, works with the American Conservative Union, and consults on privacy matters with the ACLU.

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