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By STEPHEN NOHLGREN, Times Staff WriterCome what may, judges are reluctant to decide the nation's future, legal experts say.
The Washington, D.C., suburb of 5,000 residents calls itself Seat Pleasant, but its mayoral race four years ago was anything but.
Incumbent Eugene Kennedy beat challenger Thurman Jones by one vote because poll workers disenfranchised one Jones supporter. The voter was registered, but voting rolls failed to show it. A call to the county elections board would have proven her case, but the workers had left by 4 p.m.
Though a Maryland circuit judge ordered a new election, a higher court let the tarnished vote result stand and reinforced a basic axiom of American politics: Courts generally do not overturn election results, no matter how messy the vote count.
This year's presidential campaign has been mired for weeks in litigation over election rules, voter registration and absentee ballots. With one day to go, both major political parties have dispatched armies of lawyers to Florida and other battleground states, prompting nervous speculation that November 2004 might make Florida 2000 seem like a trifling dustup.
Nevertheless, legal experts say, chances are slim that judges will decide the nation's future.
Four presidential campaigns have been decided in court, but three were in the 1800s, said Washington lawyer Jan Baran, who specializes in election law. That's because big court cases require the presidential vote be razor close in a state with enough electoral votes to tip the balance, he said.
"In 2000, people forget that there was a state with an outcome even narrower than Florida's - 355 votes in New Mexico. Why weren't the media and all the lawyers in New Mexico? Because it really didn't matter who won those four electoral votes," he said.
Professor Richard Hasen of Loyola Law School in Los Angeles said basic math holds down litigation in national elections. "Say the vote is within 1 percent in Florida; that's still 60,000 voters," he said. "You could find 300 people who shouldn't have voted or 1,000 votes lost in a glitch in a voting machine. But problems have to be either on a massive scale or an election is excruciatingly close in actual numbers before litigation could affect the outcome."
University of Virginia political scientist Larry Sabato, who studies voter fraud, said judges are simply reluctant to intervene.
"(They) understand that if the electoral process ever is captured by the lawyers and courts, it's the effective end of popular democracy," Sabato said. "Citizens will view elections as just a way-station along this wide road to victory. That's extremely dangerous."
Still, Sabato is worried that bitterness and shenanigans might throw this year's presidential outcome into courts in several states.
"The stakes are so high. And I hear a lot of political people saying the ends justify the means," he said. "I've traveled to 41 states, and I've heard Democrats and Republicans. They say they hate Bush so much, they hate Kerry so much, they will do anything to stop him. The Dems are still sulking about 2000. In their minds, they may just be evening the score."
Courts view voting as a fundamental right, but they set high thresholds for proving that rights were violated. Confusing ballots, technical problems and even terrible mistakes by election officials usually won't suffice.
Years ago, Pinellas County residents picked candidates by tripping manual levers on voting machines. In 1974, six candidates in a Republican primary ended up on a row of levers so low that voters had to stoop over to even see the names, much less vote for those candidates. All six lost, including a few thought to be favorites. Several came in first on absentee ballots, which buttressed their argument that the placement of their names on voting machines did them in.
A circuit court judge ordered a new primary, saying the six "dangling" candidates had been denied equal protection under state and federal constitutions. But an appellate court disagreed, saying courts should be "extremely reluctant" to void elections. Among other things, the court noted, the challengers failed to protest their ballot position before the vote.
The same principle applied to Palm Beach County's infamous "butterfly ballot" of 2000, where hundreds, if not thousands, of Al Gore supporters mistakenly voted for conservative third-party candidate Pat Buchanan. Democrats could have protested the ballot before the election. South Florida attorney Joe Geller, one of many lawyers hired by Democrats to contest the 2000 election, concedes that the "butterfly ballot" challenge was a very hard sell. "What are you going to do? Find 5,000 of the 6,000 people who voted for Buchanan and bring them in and have them say, "No, I didn't vote that way . . . I was confused . . . I'm a complete idiot?' " he asked.
Even elections that smell funny can be hard to overturn. In 1996, the incumbent sheriff of Volusia County lost at the polls by more than 4,000 votes. When 26,000 absentee ballots were counted, he won by 1,100. Then it surfaced that election officials had taken pens and marked over about 6,000 absentee ballots, which had been filled in with pencil. Clerks said the pencil ballots were hard to read.
Courts rejected the challenger's plea for a new election.
Florida law lets judges overturn elections only because of fraud or misconduct, or when too many illegal votes were counted or too many legal votes were mistakenly thrown out. Even in those cases, mishaps or wrongdoing must occur on a large enough scale to change the result or at least cast serious doubt on it.
That principle came into play during Florida's aborted 2000 recount when the parties argued over punch cards with "chads," tiny pieces of paper that were not fully punched out and prevented voting machines from reading the ballots. The Florida Supreme Court ordered canvassing boards to manually recount the ballots.
Possible illegal votes already have come into play this year, with Republicans challenging some early voters and absentee voters were felons with no voting rights. But only another improbably narrow margin in Tuesday's election could turn a few thousand felons into a serious post-election court issue.
One issue often gives challengers their best chance for overturning an election: Absentee ballots, or "vote by mail" ballots, as they are now called. They leave a paper trail, and defeated candidates can challenge a voter's address, signature and registration.
In addition, if a challenger proves systematic fraud, as opposed to technical problems, courts can overturn election-day results even if the challenger can't identify enough tainted ballots to overcome the margin of loss at the polls. When fraud is widespread, courts presume that some illegal ballots will slip through. Challengers need not identify every tainted ballot to change the result.
Florida's most prominent example was Miami's mayoral race of 1997. At the polls, incumbent Joe Carollo received 51.4 percent of the vote. On absentee ballots, however, challenger Xavier Suarez took 61 percent, forcing a runoff that Suarez later won.
The Miami Herald examined the absentee ballots and found widespread irregularities favoring Suarez. Witness after witness testified that they didn't request the absentee ballots voted under their names, that they lived outside the district and the signatures on the ballots were not theirs.
Though suspect ballots were never traced to Suarez, a judge determined that "a well orchestrated scheme" had stolen "the ballot from the hands of every honest voter in the City of Miami."
Carollo was reinstated as mayor.
Absentee ballots have since become a powerful method for getting out the vote. Republicans have been particularly effective in encouraging their supporters to vote by mail. One aspect of Florida law - demonstrated in the Miami case - might give them pause.
Courts have ruled that voting at the polls is a right, but voting by mail is just a privilege. When courts find massive fraud in the absentee voter pool has affected the election outcome, the legal remedy is to throw out all absentee ballots, not just the illegal ones. Then, only votes cast at the polls determine the outcome; the identity of the culprit does not matter.
"It makes no difference whether the fraud is committed by candidates, elections officials or third parties," the Florida Supreme Court wrote in the Miami case. "The evil to be avoided is the same, irrespective of the source."