Politics by other means

If it weren't for the landslide, there would have been a mud fight. That was the conclusion of Republican attorneys who flew into California from all over the country on Election Day, ready to defend against a flood of long-anticipated Democratic lawsuits. Armed with briefs and cell phones, the volunteer legal army camped out near courthouses and government offices across the state. In America's most liberal judicial circuit, they figured, it couldn't be too hard to find a judge willing to overrule the voters' verdict.

In the end, the numbers were simply too overwhelming. Gray Davis lost the recall question by some 600,000 votes, and Mr. Schwarzenegger nearly grabbed an outright majority despite the crowded field of replacement candidates. Double-digit victories, it turns out, are the best form of indemnification. That's small comfort to Republicans looking ahead to 2004, when important races all across the country are bound to be much closer. The lawsuits are coming, of that they're certain. They just don't know when. Or where. Or how many.

Even as the sun set on Election Day in California, the GOP legal team couldn't be sure they were off the hook. As a single-engine plane flew a "Join Arnold!" banner over the gridlocked freeways of downtown Los Angeles, a handful of lawyers gathered in a 37th-floor conference room to plot their strategy. Internal exit polls showed a big win for the Republicans, but that was no guarantee. With just two hours to go before the polls closed, the lawyers were still jittery.

On a big plasma TV screen at one end of the room, a life-size Jesse Jackson was talking to Fox News about the thousands of "disenfranchised" students who didn't have a chance to vote at various University of California campuses. Coming from a man who had publicly threatened legal action, the D-word instantly captured everyone's attention.

"Have they filed? Is there a lawsuit?" asked an attorney with a cell phone pressed to his ear.

"Maybe we should go up to the superior court building," suggested another.

"I think they're closed at this point. We should probably sit tight at least until the polls close at 8:00."

With that, everyone loosened their ties, settled around a marble-topped conference table, and reached for the chicken sandwiches that had just been delivered. The ties didn't come off, though: In case of a last-minute dash to the courthouse, it was best to remain ready.

Robert O'Brien learned that lesson in 2002. The L.A. attorney had flown to southern New Mexico for an obscure congressional race that looked as if it might be tight enough for a legal challenge. Sure enough, at 3 p.m. on Election Day, the ACLU went to court to force longer voting hours in a few select, left-leaning precincts. Mr. O'Brien was armed with pleadings he'd drafted in advance. What he didn't have was a tie. He borrowed one from a colleague, went before a judge, and came out with a victory 90 minutes later.

Mr. O'Brien calls such legal maneuverings "fundamentally undemocratic. They're trying to take the decision out of the hands of voters and put it into the hands of friendly judges." In every state, he says, lawmakers have drafted election statutes designed to make the voting process as fair and accessible as possible.

"You have people who can vote by absentee ballot for weeks in advance, and then the polls are open for 12 to 14 hours on Election Day. But in the evening, when it appears the Democrat is not going to win, there's a last-ditch effort to go in and change polling hours.... It's fundamentally unfair to change the rules the day of the election."

The overall plan goes like this: Lawyers find a judge willing to say that voters in certain precincts-usually poor, minority precincts-were somehow disenfranchised and deserve another chance to vote. Activists then conduct a "knock-and-grab" effort, driving through the affected neighborhoods and dragging voters to the polls en masse. If they haven't registered or they're at the wrong polling place, it doesn't matter. They're urged to cast "provisional ballots," which then have to be verified and counted by hand in a process that can drag on for days.

It's an increasingly popular legal tactic, according to Thor Hearne, a St. Louis attorney who helped coordinate the GOP effort in California. In 2002, Democrats tried to extend voting hours at scattered precincts in New Mexico, New Jersey, and Arkansas. The 2000 election saw similar lawsuits in St. Louis, Kansas City, and Detroit. Everyone was sure California would join that list if the election turned out to be close.

So far, Republican lawyers have always been successful in thwarting the Democrats' legal efforts, but they can hardly afford to rest on their laurels. "All the election statutes across the country are basically the same," Mr. O'Brien explains. "Once [the Democratic lawyers] win one, then they can go to the next judge and say, 'Look, so-and-so kept the polls open longer, and their statute is the same as ours.' They're looking to establish a precedent. They only have to win once. We have to win every time."

Republican lawyers also find themselves on the defensive when it comes to the sheer variety of potential Democratic lawsuits. Extended polling hours are just the tip of the proverbial iceberg. The California legal team also had to anticipate a host of nuisance lawsuits ranging from hanging chads to computer glitches to confusing ballots. Given a close race and a liberal judge, the possibilities for wreaking legal havoc are practically limitless. "You never know what novel legal theory they might try," says Mr. Hearne, displaying a stack of briefs he'd compiled on various subjects, just in case.

"Everything we drafted was to prevent judicial intervention in the election," he explains. "We've seen the suits they filed in the last couple elections. You can never predict all their creative theories, but you do your best to anticipate what the claims might be and have a response ready."

The briefs weren't needed on Oct. 7, but none of the attorneys seemed to think he'd wasted precious billable hours on a labor of political love. Mr. Hearne believes the lawyers' presence all over the state may have had a deterrent effect on the Democrats' legal team: "We succeed when we deter them from filing their suits."

Or the margin of victory deters them. Next year may be different, especially given that an even bigger prize than the California governorship is up for grabs. "This is going to be part of the Democratic election repertoire going forward," Mr. O'Brien predicts. "Their attitude is, '... We have to sue somebody to win the election.'"

There will be plenty of opportunities to sue somebody in 2004, when a closely divided electorate could lead to tight races all over the country. The Republicans already see up to 11 major races that could end up in court, and those numbers may grow. Republicans vow they'll be there to fight back, but they know a long-term strategy of playing legal defense is highly risky. The GOP's best hope may be that the Democrats will eventually overplay their hand, mucking up the system with nuisance suits until the public lashes back decisively at the ballot box.

When-and even if-that might happen is anybody's guess. The jury, as they say, is still out.