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Friday July 19, 2004 Kerry Building Legal Network for Vote Fights By DAVID M. HALBFINGER Mindful of the election problems in Florida four years ago, aides to
Senator John Kerry, the presumptive Democratic presidential nominee, say
his campaign is putting together a far more intricate set of legal safeguards
than any presidential candidate before him to monitor the election. Aides to Mr. Kerry say the campaign is taking the unusual step of setting
up a nationwide legal network under its own umbrella, rather than relying,
as in the past, on lawyers associated with state Democratic parties. The
aides said they were recruiting people based on their skills as litigators
and election lawyers, rather than rewarding political connections or big
donors. Lawyers for the campaign are gathering intelligence and preparing litigation
over the ballot machines being used and the rules concerning how voters
will be registered or their votes disqualified. In some cases, the lawyers
are compiling dossiers on the people involved and their track records
on enforcing voting rights. The disputed 2000 presidential election remains
a fresh wound for Democrats, and Mr. Kerry has been referring to it on
the stump while assuring his audiences that he will not let this year's
election be a repeat of the 2000 vote. "A million African-Americans disenfranchised in the last election,"
he said at the N.A.A.C.P. convention in Philadelphia on Thursday. "Well,
we're not just going to sit there and wait for it to happen. On Election
Day in your cities, my campaign will provide teams of election observers
and lawyers to monitor elections, and we will enforce the law." The Kerry campaign's legal efforts are hardly occurring in a vacuum. The Bush-Cheney campaign says it will have party lawyers in every state,
covering 30,000 precincts. An affiliated group, the Republican National
Lawyers Association, held a two-day training session in Milwaukee over
the weekend on "how to promote ballot access to all qualified voters,"
according to the group's Web site. Lawyers for nonpartisan advocacy groups conducting voter registration
drives are also working behind the scenes and in court to ensure that
their new registrants make it onto the rolls and that their ballots are
counted. But it is the campaign of Mr. Kerry that appears to be doing the most
to apply lessons from the Florida recount and that is adopting the more
fiercely partisan posture in the early going. Its plans include setting up SWAT teams of specially trained lawyers,
spokesmen and political experts to swoop into any state where a recount
could be needed. "The U.S. has had a policy of being able to fight two regional conflicts
and still defend the homeland," said Marc E. Elias, the Kerry campaign's
general counsel. "We want to be able to fight five statewide recounts
and still have resources available to the campaign." The lessons of Florida include fairly mundane ones. Democratic lawyers
said, for example, that they had such a hard time obtaining office space
in Tallahassee, presumably because landlords in the state capital feared
antagonizing Gov. Jeb Bush, a Republican and brother of President Bush.
This time, Kerry aides say, they are recruiting not only specialists
in election law who work in small law firms or alone, but also litigators
at large firms in every state who have the resources and office space
to support a long-term, large-scale and pro bono recount operation. "We don't want a situation where we wake up the next day and are
scrambling to think of what our legal team looks like," Mr. Elias
said. The Kerry campaign has already enlisted lead lawyers in all 50 states,
and those lawyers are recruiting lawyers at the county and the precinct
level. "It's our intention to have lawyers in one fashion or another covering
all of Iowa's 99 counties," said Brent Appel, the Kerry lawyer in
Des Moines. Kerry aides say the campaign has set up a national steering committee
with task forces tackling different issues: one on ballot machines, another
on voter education, and a third on absentee, early, and military voting,
to name a few.. At the Democratic convention next week in Boston, they say, any lawyers
interested in volunteering will be offered training. And dozens of the
lawyers already recruited by the Kerry organization will hold two days
of intensive meetings to finalize strategy, tactics and assignments. Democrats say they learned from the Florida vote, and from the Supreme
Court rulings that arose from it, that the most important legal battles
are those fought before Election Day, over how election laws are to be
carried out, who is allowed to register and who will be allowed to vote. Robert Bauer, a partner of Mr. Elias's who is overseeing the Kerry legal
effort, took a historical view of what he called "warfare over the
electoral franchise." The first phase, he said, concerned who was
entitled to vote and included the all-white primary, literacy tests and
poll taxes that were eliminated in the mid-20th century. The second phase
was fought largely over the dilution of the vote along racial lines and
used the Voting Rights Act, he said. "Now, we're into a third phase, that was exemplified by Bush-Gore,
of franchise restrictions that are accomplished through manipulations
of the elections administration process or of the law," Mr. Bauer
said. "It's about people who somehow can't register, or can't vote,
or their vote isn't counted, and it's done not frontally, but through
legal manipulations." Those can include the seemingly picayune. In Minnesota, a lawyer for
the Kerry campaign is protesting a ruling by the secretary of state -
Mary Kiffmeyer, a Republican - that every registrant must provide identification
that matches "with certainty" a state database containing registered
voters' names, birthdates and driver's license numbers or partial Social
Security numbers. "It doesn't take into account a transposition of
a number by a data-entry person," said Jim Rubenstein, the Kerry
lawyer in Minneapolis. In an interview, Ms. Kiffmeyer said local officials
would have the discretion to overlook an obvious typographical error. Republicans are not trumpeting their efforts nearly as much, though Benjamin
Ginsberg, the national counsel for the Bush-Cheney campaign, said he expected
lawyers to cover 30,000 precincts on Election Day. He noted that the chairman of the Republican National Committee, Ed Gillespie,
had been rebuffed by his Democratic counterpart when he proposed recently
that the two parties agree on a list of pivotal precincts and send bipartisan
pairs of lawyers to monitor them. "Obviously the goal in this is
to have every valid vote counted," Mr. Ginsberg said, "and to
not allow the sort of rhetorical overkill, on either intimidation or fraud,
to be used in a tainted fashion to interfere with the get-out-the-vote
operation." Apart from the two campaigns, a host of advocacy and civil-rights groups,
which often act in parallel with Democrats when it comes to expanding
ballot access, are stepping up their own election-law efforts this year. America's Families United, a racial-justice advocacy group that is registering
thousands of people, has set up a "voter protection project"
to ensure that its new registrants make it onto the rolls, by comparing
each new voter list to its own list. Penda D. Hair, the project director,
said her goal was to recruit 6,000 lawyers in 20 states who could challenge
registrars when they reject applications improperly. In South Dakota, Native American officials are suing for clarification
of new election rules. In 2002, they say, a dramatic increase in voting
by tribal members - who often lack driver's licenses or other accepted
forms of picture identification - made the difference in the Senate race
that Tim Johnson won by fewer than 600 votes. The state has since revised
its identification rules, and in the special Congressional election there
last month, Native Americans reported widespread discrepancies in the
application of the rules, said Jacqueline Johnson, executive director
of the National Congress of American Indians. The Leadership Conference on Civil Rights, meanwhile, has made a Freedom
of Information Act request to review the Justice Department's communications
to local and state election authorities during this election cycle. "We're
being proactive, trying to head off any problems at the pass," said
Nancy Zirkin, the conference's deputy director.
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