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http://www.baltimoresun.com/news/elections/bal-te.md.legal31oct31,0,7605822.sto
ry?coll=bal-home-headlines

Lawyers rev up for post-election court battles
In Md., both parties muster legal forces
By Gadi Dechter
Sun reporter

Originally published October 31, 2006

In addition to the usual get-out-the-vote campaigns, Democrats and Republicans
in Maryland are planning major get-out-the-lawyer efforts to prepare for an
election that could be fought as vigorously in Maryland's courts as at the
polls.

Democrats plan to field a 500-person volunteer "legal protection team" on
Election Day - composed mostly of attorneys - to guard against what they fear
are GOP "voter intimidation" strategies in Democratic-leaning districts, party
officials say.

Calling such suggestions "reprehensible," Republicans are enlisting their own
army of volunteer lawyers and preparing for possible legal challenges on a
range of fronts, from compromised electronic voting machines to no-show
election workers and invalid absentee ballots.

Each side paints the other as the legal aggressor and says it is only mounting
defensive strategies to safeguard the integrity of the Nov. 7 election.

"I think it really harms everyone," said Tova Wang, an elections scholar at the
non-partisan Century Foundation, referring to the litigious atmosphere
surrounding elections.

"It undermines democracy itself, and that's just bad for the country."

But with a faltering Republican Party's control of Congress at stake in next
week's election, the prospect of lawsuits is high across the country, and
Maryland is among the states most likely to have poll results contested in
court, experts said.

That's because of a perfect storm of factors: close gubernatorial and U.S.
Senate races, a glitch-filled primary in September that has eroded public
confidence, and a likely record number of absentee voters - whose paper ballots
experts say are more susceptible to fraud and demands for recounts than votes
cast on electronic machines.

"The lesson that everyone seems to have taken from the 2000 presidential
election is that Election Day isn't over on election night," said Doug Chapin,
director of electionline.org, a nonpartison election-monitoring organization
that has identified Maryland as a "state to watch" for election-results court
battles.

Marylanders' memories of election lawsuits goes back further than that 2000
contest that put George W. Bush into the White House by a razor-thin margin and
prompted the federal government to demand that states replace the punch-card
and lever voting systems that caused turmoil in Florida.


Claim of fraud
In Maryland's 1994 gubernatorial election, Republican nominee Ellen R.
Sauerbrey claimed that fraud contributed to her defeat - by less than 6,000
votes - by Democrat Parris N. Glendening.

Sauerbrey lost her lawsuit, and one of her lawyers in that case said the
outcome should serve as a cautionary tale to candidates or parties hoping to
overturn initial election results.

"The standard [for contesting an election] is whether you can demonstrate a
reasonable possibility of a different result had things been done right," said
Byron Warnken, the University of Baltimore law professor who was part of
Sauerbrey's legal team.

The crucial - and highly improbable ingredient - he said, is an extraordinarily
close election.

"In our case, it was a little less than 6,000 votes, out of 1.45 million votes
cast ... so the amount at issue was just about four-tenths of 1 percent [of the
total vote]. That's a fairly close election, and we still weren't able to do
it."

Recent polls of likely voters do not predict as close an election as that in
the contests for governor and Senate.

Mayor Martin O'Malley, the Democratic challenger in the governor's race, has
led incumbent Gov. Robert L. Ehrlich Jr., a Republican, by between 5 and 10
percentage points in independent polls. The margins in the Senate race have
been similar, with Democratic Rep. Benjamin L. Cardin leading Republican Lt.
Gov. Michael S. Steele.

While both parties are predicting victory, their lawyers are girding for a
multitude of possible legal challenges.

Earlier this month, attorneys from the major parties - as well as those
representing Cardin, Steele, O'Malley, Ehrlich and candidates for attorney
general - met with elections administrators in Annapolis to share contact
information and smooth out the logistics of potential litigation.
This is the first time I recall doing this," said deputy elections
administrator Ross Goldstein. His office called the meeting to address issues
that arose during the primary election, which was marred by no-show judges and
some polling places opening hours late.

Goldstein said the board of elections offered to act as a liaison between
campaigns and local election officials, should disputes arise on Nov. 7 that
need immediate attention.




"I would say it was cordial, professional," said Ehrlich campaign attorney
Severn Miller of the counsel confab. The governor's team also includes David
Hamilton, a member of Ehrlich's old law firm, Ober/Kaler, who has become a
prominent figure in Annapolis.


Less decorum
Party operatives are showing less decorum. Democratic Party spokesman David
Paulson said his side's attorneys would be guarding against voter intimidation
by the GOP.

"We're looking at keeping our eyes open for any form of voter suppression,
anything that would keep voters away from the poll," he said. "Republicans have
across the country, over time, perfected the various techniques of voter
suppression ... on what have traditionally been Democratic precincts."

Republican Party spokeswoman Audra Miller dismissed Paulson's claim as a
smokescreen designed to deflect criticism from the O'Malley campaign's own
"likely numerous and lengthy legal challenges to this election."

"Frankly it's reprehensible, the comments that come out of the Democratic Party
and their dirty gutter politics," said Miller.

The most likely point of legal contention in Maryland's election next week is
the counting of absentee ballots, said Wang, the elections scholar.

Citing a lack of confidence in the state's new electronic voting system,
Ehrlich has been encouraging voters to request paper absentee ballots, which
has fueled a wave of applications unprecedented in a midterm election.
Democrats have been making a similar push.

As of yesterday, there were more than 161,000 requests for the paper ballots,
according to Goldstein. The deadline for requesting a ballot by mail is today,
although voters can download applications from the state elections board's Web
site or get them in person from local election offices after today.

"The problems with absentee balloting is that it's vulnerable to fraud," said
Wang. "They're done in the privacy of someone's home so it's very easy to
envision a scenario where a family member dictates the choices of another
family member."

Paper ballots also introduce an element of human error - on display in Florida
in 2000 - that electronic voting machines are designed to eliminate.

"So you're back ... not filling out ovals properly again," said Wang. "It can
be very unclear whether the mistake invalidates the ballot or not, which can
make it easy to litigate."


Small margin
Also unclear is how litigation or absentee recount demands would help either
party. According to Goldstein, the number of such ballots requested by
registered Democrats is less than 10,000 higher than the number requested by
Republicans -in a state with more than 3 million registered voters.

That small margin means a challenge would likely be consequential only in an
exceedingly close election.

Ultimately, said Warnken, the best advice for political candidates is to plan
for a victory at the polls, not in court.

"It would seem to me that all the lawyers are probably advising their clients,
'Our best hope is to win this election,'" he said.

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