Another 2000?

11.06.12

Obama, Romney Lawyers Spoiling for Recount as Election Day Unfolds

Both Obama and Romney are deploying a small army of lawyers in case of a deadlock or voting irregularities. Ben Jacobs reports on how the campaigns are getting ‘ready for the unthinkable.’

There’s no way to know whether there will be another Florida-like recount in 2012, but neither presidential campaign is taking any chances.

Thousands of lawyers are being deployed for Election Day in every battleground state in preparation for what would be, in terms of magnitude and rarity, the electoral equivalent of Hurricane Sandy.

In fact, one source indicated the Romney campaign is deploying at least 1,000 attorneys in Virginia alone.

Both campaigns will have top-notch election lawyers leading their legal teams—former White House official Bob Bauer for President Obama, and Ben Ginsburg for Mitt Romney—and have spent months if not years preparing. Many of the lawyers volunteering will be watching polls and objecting to any voting irregularities. Others will be ready to file emergency litigation if necessary. And a special handful will be in war rooms, monitoring any potential for a recount.

For a pivotal recount to occur, several things have to fall into place, says Joe Sandler, a former general counsel for the Democratic National Committee. A recount, he notes, needs to come down to a “very small number of votes in a one state” that would decide the electoral winner. In Sandler’s view, there has been a disproportionate hysteria about a presidential recount, as opposed to the greater likelihood of recounts in House races or even a Senate contest. After all, the more votes there are, the less likely there is to be a recount.

This outlook was echoed by Thor Hearne, the national election counsel to George W. Bush’s 2004 reelection campaign, who noted that recounts would affect only races decided by “several hundred or several thousand votes.” Although Hearne says there may still be postelection litigation in states with greater margins—Ohio was decided by a bit more than 100,000 votes in 2004—it is not likely to change the winner.

In fact, although Hearne describes preparing for recount as “essential” for any modern campaign, it’s not a circumstance that is expected to happen in a presidential race. As Sandler, a veteran of the 2000 Florida recount, says, “A recount is very much a secondary thing, it’s all about getting your voters to vote on Election Day. After that it’s really too late. Even though pundits, academics, and journalists love to talk about extra innings, it’s a once-in-a-lifetime thing.”

But Roger Stone, the veteran Republican consultant who played an important role for the Bush campaign in 2000, emphasizes, “You’ve gotta do advance planning.”

According to Sandler, there will be “separate teams of lawyers who are put on standby” in each state. They will have “forms and training materials in the unlikely event of a recount in their state.” He notes that these teams will be “a combination of local lawyers and national specialists.” After all, most election law is state, not federal. “They are ready, and they are ready for the unthinkable.”

But what happens if the unthinkable occurs? That, says Stone, triggers a multi-pronged approach. It’s not just about the lawyers; there also needs to be a “public-relations element.” Stone argues that campaign strategists need “to get the high ground as soon as you can: you won the election, and it’s being stolen from you.” That, in his opinion, was one of the key weaknesses of the Gore campaign.

‘We know these tend to happen more often than once in a century.’

Yet for all the preparation and planning, much of what occurs will be “invariably improvisational,” according to legal expert and author Jeffery Toobin. “No recount is like any other recount,” he says.

Each one takes place in a different state with different statutes and different legal issues. After all, for all the fuss about Florida’s “hanging chads” in the 2000 recount or the meaning of a vote for “Lizard People” in the recount following the 2008 Senate race in Minnesota between Al Franken and Norm Coleman, these specific issues are unlikely to be repeated.

Yet for all the lawyers who will be working on Election Day and all the preparation done in advance, both the Obama and the Romney campaigns are notably tight-lipped on the subject. Andrea Saul, a spokeswoman for the Romney campaign, told The Daily Beast, “We have all the resources and infrastructure we need for any potential dispute or recount. Beyond that, I don’t know that I’ll have much more for you.”

Adam Fetcher, an Obama campaign official, merely highlighted this statement from a campaign fact sheet: “In each battleground state, we have recruited thousands of attorney volunteers to help recruit, train, educate, and observe at polling locations across the country. Our observers are trained to be problem solvers so that all eligible voters are given the opportunity to vote. The legal community has responded with an outpouring of interest to protect the right to vote this cycle.”

These pat answers obscure the intense preparation taking place in Boston and Chicago. Since 2000, recount preparation has become an “integral part of the campaign,” as Hearne puts it.

In a close election, a prepared and well-organized legal team could determine the next president. This isn’t likely to happen. After all, as Toobin said, 2000 was the equivalent of a “once-in-a-century flood.”

But, as the New York City resident noted mournfully in the wake of last week’s hurricane, “We know these tend to happen more often than once in a century.”