From NHNE News

By John M. Broder
New York Times
October 17, 2004


America could very well wake up on Wednesday, Nov. 3, not knowing who won the presidential election. Judging by the latest polls, the race is close enough in a number of key states that human error, technical foul-ups and the inevitable legal challenges could delay the results for days or weeks, in an unwelcome replay of 2000.

The likelihood of trouble at the nation's 200,000 polling places may be greater in 2004 than in any year in memory. Absentee and mail-in ballots, provisional voting, redrawn districts, untrained poll workers, millions of first-time voters and unfamiliar new technology are all conspiring to create a potential electoral nightmare in a tight contest.

The two major parties have brigades of lawyers ready to file legal actions at the first signs of irregularity at the polls. Already, lawsuits are challenging voter registration procedures in several states, and more litigation is sure to come anywhere that it might affect the outcome.

In every American hamlet, city, county and state, elections officials are praying, "Please, don't let it be close here."

All of which leads to the question: Could the country stand another Florida? How deep would the political and psychological damage be?

The debacle last time left the nation's electoral institutions bruised but relatively intact. Academic researchers say the sharply divided Supreme Court of December 2000, vilified by many for the way it decided Bush v. Gore, appears to have regained the faith of a majority of the public.

But scars remain. Questions about the legitimacy of the Bush presidency and the fairness of the 2000 election have never died. Many Democratic voters have nursed feelings of anger and disenfranchisement for the past four years. Partly as a result, the 2004 campaign has been among the most bitter in decades.

Some scholars and political combatants believe a second contested election could open lasting fissures in American society. They fear that the red-blue political geography of the country could become imprinted on the national psyche for years to come, squelching hopes for bipartisan cooperation in governing the country.

Before 2000, the last time the nation suffered such a disputed presidential election was in 1876, when the wounds of the Civil War were still fresh and the public had no appetite for a pitched partisan battle, said David Herbert Donald, an emeritus professor of history at Harvard University and a scholar of the presidency. That dispute cooled soon after Rutherford B. Hayes, declared the winner by a bipartisan commission, assumed office in 1877.

This time could be different, Mr. Donald warned. "There was a lot more residual ill feeling, more of a feeling that 'we were robbed,' in 2000 than in 1876," he said. "If we have another cliffhanger in which the court decides the outcome, there will be serious doubts about whether this is the best way to run a government."

If either candidate wins without leading the popular vote, as Mr. Bush did in 2000, there could be serious calls to abolish the Electoral College and make other fundamental changes in the machinery of American democracy.

There was a bitterness about the 2000 election that persists in a good many Democratic circles, Mr. Donald said, adding: ''That certainly will be revived if there's another dispute."

Warren Christopher, the former secretary of state who oversaw Vice President Al Gore's legal challenges in 2000, said that the actions of the Supreme Court and some Florida officials that year had, at least temporarily, tarnished the American way of choosing leaders. A second tainted election, followed by more bare-knuckled partisan conflict, Mr. Christopher said, would be far more damaging. He urged both parties to cool their rhetoric and put the nation's interest ahead of partisan advantage.

"A repeat performance would do irreparable damage to the good will and forbearance so essential to a functioning democracy," he wrote in an e-mail message. "For the political parties, 2004 could be one time when winning isn't everything."

The Florida dispute, the 36 days of suspense and the United States Supreme Court's pre-emptive decision tested America's faith in its ability to conduct elections, a faith that had gone largely unquestioned since 1876.

Richard Nixon chose not to challenge the results when he lost to John F. Kennedy in 1960, despite questions about Democratic vote fraud in Cook County, Ill.

Now, though, a cottage industry of fulltime election monitors, analysts and critics has sprung up, from the broad, nonpartisan Electionline.org, which plans to release a state-by-state report on potential voting problems on Tuesday, to focused efforts like Black Box Voting, which works to expose security problems with electronic voting machines.

Grievances about the 2000 election are not confined to one party or one state, but appear to be felt particularly strongly by minorities and the poor, whose votes were disproportionately tossed out in Florida and elsewhere, said Christopher Edley Jr., dean of Boalt Hall, the law school at the University of California, Berkeley, and a member of the United States Commission on Civil Rights.

"These huge precinct-to-precinct, county-to-county differences in spoiled ballot rates are intolerable, especially when the differences are so strongly correlated with class and color," Mr. Edley said, adding that if much of the electorate believes that an election result derived from unfair and inconsistent voting methods, "then defeat is both bitter and embittering."

The only solution, he said, is a standardized national voting system that gives everyone an equal chance to have his or her vote properly counted.

Dread of another mess in 2004 comes at a time when many American institutions are under assault, largely because of problems of their own making, said Leon Panetta, a former congressman, White House chief of staff under President Clinton and member of the bipartisan commission on federal election reform convened in the aftermath of the 2000 election.

"Trust in our basic institutions is being undermined in a number of ways: in corporate America, with our religious community, in the press, and certainly in government, particularly with the revelations of the failure of our intelligence systems in Iraq," Mr. Panetta said. "Now we're in an era of disputed elections. Everyone would like to believe the Constitution is designed to resolve these disputes, but I don't know how many national elections you can take to the Supreme Court and not at some point have an explosion in this country."

Republicans appear more sanguine about the condition of American democracy and the prospects for the future.

Theodore B. Olson, who argued Mr. Bush's electoral case before the Supreme Court, said that the court had rendered many unpopular decisions in the past and come through with its reputation and authority intact. Noting that both sides are prepared to contest aggressively any questionable results this year, he said he expected that they would ultimately accept the verdict of the vote-counters or the courts.

"People keep telling us that democracy is kind of messy, and when you have close elections, there's a possibility the outcome won't be immediately clear," Mr. Olson said. "But what's the alternative?"

One thing that seems certain, though, is that there is no certainty about how the nation will handle the aftermath of a disputed election.

In 2000, experts and pundits predicted that the Supreme Court would refuse to snatch the case away from the Florida courts. They predicted that, lacking a popular mandate, President Bush would have to govern from the center. They predicted that a careful recount in Florida ballots would reveal that Mr. Gore was the true winner. All proved false, or at least debatable, said Laurence H. Tribe, a professor at Harvard Law School and Mr. Gore's advocate before the Supreme Court in December 2000.

"Anyone who thinks he has a useful crystal ball through which to gaze, to imagine what the consequences might be," he said, "had better enjoy eating ground glass."

Some observers see potential for lasting benefits from another disputed election, at least once the dust has settled: they say it may finally rouse the country to overhaul the presidential election process.

"If it happens one time, it's an anomaly; a second time, and it's clear there are real problems," said Elizabeth Garrett, director of the University of Southern California-Caltech Center on Law and Politics. "We cannot take this for every election, but if we do have another contested election, electoral reform efforts will have to be taken."


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