The 2012 election and the ‘Zone of Litigation’

The shadow of Bush v. Gore of 2000 is beginning to loom larger over the 2012 Presidential election. Could there be a repeat, and what would be the consequences?

Readers will remember that whole experience with the virtual tie in the popular vote in the State of Florida. Sorting out the issues related to recounts and the attempts to visually examine tens of thousands of ballots cast in that Florida election did a great deal to expose the, perhaps inevitable, flaws in election administration.

Key to the intensity was the fact that the 2000 election between Democrat Al Gore and Republican George W. Bush was only the fourth time in history that the winner of the popular vote, Al Gore in this case, was defeated in the deciding electoral college vote by George W. Bush. Hence, the winner of Florida determined whether the next President would be Gore or Bush. It takes 270 electoral votes to claim the Presidency, and Republican Bush garnered 271 after being awarded Florida.

Perhaps more importantly, the stalemate in Florida’s ability to determine a winner lasted for days and was finally broken when the United States Supreme Court agreed to hear the case. The court held by a narrow five to four margin that the recounting process should cease. That resulted in the victory for Bush, who held a razor thin lead at the time.

Citizens from coast to coast were aghast that so many flaws could exist in one state’s election administration. The reality is that any state, subjected to such intense scrutiny with lawyers for both parties traveling from all over the country to join the fray, would have its electoral blemishes exposed. In each state’s election process there are thousands of human decisions and thousands of human hands handling the documents and implements necessary to gather the millions of votes of the citizenry. No doubt there are errors. And when the pressure of partisan and media attention come to bear, those errors will inevitably be portrayed as intentional by those negatively affected by them.

All of this brings us to the current election. There has perhaps never been an electoral season that has produced as tight a race over the entire course of the campaign as the 2012 race. The partisan intensity of the political world in general has created an electoral environment that is as tense as any in memory. Add to that the dozens of polls that daily reveal a virtual “dead heat” in the popular vote nationally as well as a similar near deadlock in the popular vote and hence the electoral votes of the individual states. Furthermore, the various state court battles over new voting requirements have served as warmups for the legal community to prepare for future engagement.

In one of the many election-speculating political programs over the weekend a pundit used the term “zone of litigation” to refer to the potential for another “Florida 2000,” not only in one, but perhaps even six or more states. As unfathomable as this may seem, the stage is set to make such a turn of events a real possibility. The same “never give in” trench warfare between Republicans and Democrats that has characterized Congress over the past three years has been adopted by an equally determined electorate.

By “zone of litigation” the pundit was referring to those election incidents that would become game changers if sufficient legal pressure were brought to bear within the judicial system. Thus attorneys, armed with legal precedents established in Bush v. Gore and also through those recent cases over state by state voting procedures, are no doubt poised to pounce on any opportunity to create an advantage for their respective party.

The memories of Florida 2000 would pale in comparison to possibly a half-dozen states fighting over hanging chads, allegedly missing absentee ballots and decisions on which provisional ballots to count and which ones to discard. It is easy to see how such multiplied mayhem might not be solved in short order. As if that were not enough, several electoral vote models of the political experts continue to stop at a 269 to 269 electoral vote split of the 538 electoral votes. Such a tie would be settled in a vote of the United States House of Representatives.

Americans can gain solace from the Florida 2000 debacle in that, though rarely tested, the Constitutional provisions for solving such situations worked to the satisfaction of most citizens. Still and all, our wading into the life and death competition for electoral superiority beyond the ballot box is entering rarely tread upon territory. Such a situation carries with it the considerable risk that those on the losing end will seriously question the legitimacy of our system of governance.

As important as Election Day is, Nov. 7 may be even more so if indeed we were to once again enter that “zone of litigation.”

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