The Magazine

Litigate This!

From the November 15, 2004 issue: There were more lawyers than cheaters in Ohio.

Nov 15, 2004, Vol. 10, No. 09 • By KATHERINE MANGU-WARD
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Columbus, Ohio

IF YOU LISTENED very carefully as Election Day dawned, you could hear the sound of a thousand wingtips creaking as their lawyer-occupants leaned expectantly forward, ready to hustle across the state of Ohio with their eyes peeled for "voting irregularities." Florida 2000, you got the sense, had been just a warmup.

Lawyers with varying degrees of expertise in the fine details of election law descended on Ohio (and Florida and other presumed hot spots) from across the country. Weighing in with 115 volunteers in Franklin County alone, the Election Protection coalition (a project of People for the American Way, the NAACP, the AFL-CIO, and four or five dozen other assorted pro-Kerry groups) was dominant at the polling places, with an all-day presence at the dozens of schools, churches, and rec centers where county residents voted. By 6 A.M., their teams were pouring out the back door of the AFL-CIO building in Columbus and into the suburban wilderness.

I tagged along behind one four-woman group dispatched to a suburban elementary school. They spied their first "irregularity" within moments of arriving. Two women in white windbreakers had stationed themselves well inside the 100-foot perimeter set up by Ohio law to keep potential interlopers of all kinds away from polling sites. The windbreaker women were carrying binders and verifying that the people in line were voting in the right precinct. They wouldn't say what group they were with, and a small fuss quickly became a clamor and threatened to escalate into an election-observer West Side Story when it was discovered that the windbreakers' plastic shopping bags were full of Democratic campaign literature. They were a Voting Rights Team stumping for Kerry--same church, different pew.

Cell phones sprouted from every handbag, and various headquarters were consulted. After some wary circling, excuses were proffered sotto voce ("I think my hair is gelled too tight to my head, that's why I have a headache") and asses were covered ("I'm going to fill out an incident report . . . and I would appreciate if the right person is specified. I don't want to be drawn into somebody else's drama"). Finally, TV talkshow conflict-resolution techniques were employed ("I really felt offended by that because I heard you on the phone") and peace was made.

No sooner was the Voting Rights Team safely nudged outside the perimeter than another crisis confronted the Election Protection lawyers. In a blatant attempt at electioneering, a grade-schooler displayed a sign reading "Vote NO on Issue 1" (the same-sex marriage ban) in the window of his school bus. Written on a torn-out leaf of notebook paper, the sign was just inches from the 100-foot boundary. The school bus quickly pulled away, however, and the crisis was averted.

It started to rain harder, and the wind kicked up. "If you have any problem voting, any problem at all, you just come right back out here and tell me!" one lawyer would holler as voters went by. She was roundly ignored, as each voter made a mad dash for the door. One of the lawyers turned up her collar and stepped just inside the 100-foot perimeter to take refuge under a tree.

This time, no one raised a fuss.

ACROSS TOWN, on the 11th floor of a snazzy office building, there are cries of dismay around a conference table. Someone has opened another jumbo bag of M&Ms, ruining the Election Day diets of a dozen lawyers fielding fraud complaint calls for the Ohio Republican party. As they listen, the lawyers pace around the room and stare out of the floor-to-ceiling windows at rainy downtown Columbus. Many of the calls are small potatoes--long waits, petty squabbles--but rumors fly: "Did you hear that someone brought a busload of 30-40 people and demanded that they receive provisional ballots?" "Did you hear one of the voting machines had 5,000 votes on it before the polls even opened this morning?" "Did you hear that Democrats are inside the polling places wearing 'Ask Me' tags and pretending to be election workers?"

The last charge, at least, turned out to be more or less true. Dispatched to Koebel Elementary School to investigate claims of electioneering and get an affidavit from the on-site Republican challenger were two tired but cheerful out-of-town lawyers on the GOP's Roving Legal Team. They denied that the use of the word "Roving" was subtle homage to Saint Karl, but he would surely have been pleased with the work they were doing. When they arrived at Koebel, the scene inside the gym resembled a hurricane refugee center. "Just need some cots in there," said one of the lawyers.

The trademark white windbreakers of the Voting Rights Team were in evidence here, too. Though they wouldn't give an institutional affiliation at the first polling place, here they came right out and said that they were with the Democratic party. With no Election Protection lawyers (or anyone else) to keep them in check, they had made themselves at home. White windbreakers were at the door of the polling place, they were chatting with voters at the head of the line, and they were all wearing badges that said "Need Help? Ask Me. Voting Rights Team staff." One woman sporting the badge was standing five feet from a voting booth. Hearteningly, she turned out to be a certified Democratic challenger (and thus one of the few windbreakers legitimately inside the polling place). Dishearteningly, she also turned out to be the wife of one of the candidates for Franklin County treasurer.

Clearly somewhat taken aback by the situation, the Roving Legal Team got to work investigating. The affidavit took an hour to record. When they were done, it was back to the call center to get the affidavit typed, notarized, and ready to add to a growing pile in preparation for a possible Republican lawsuit. "It's not the most outrageous thing I've ever seen," admitted one lawyer, "but let's get it processed. It could be important, I guess."

LATE IN THE DAY, the call center of the Election Protection offices bore all the signs of temporary but intense occupation--soda cans, bones from chicken wings, abandoned marker boards. Officially known as the Legal Command Center (though "no one likes the term," according to one volunteer) the digs are a far cry from the GOP's tasteful, glass-paneled conference room. It's a white-walled, semi-windowless space on the third floor of the AFL-CIO building. On the wall is a huge poster decorated with a kinte cloth pattern that reads: "Don't let NOBODY turn you around. This Election Day African Americans won't be turned away at the polls. On Nov. 2, we got your back!"

One advantage Election Protection has on the Ohio Republican legal operation, though, is precinct maps, and lots of 'em. The maps are not coded for Democratic and Republican areas, but voting patterns are known. When someone notices a batch of complaints from New Albany it sparks this overheard conversation: "New Albany, huh. Oh, not our target area. I get it. That's why it wasn't on the radar earlier." New Albany, on the northeast side of Columbus, is 60-40 Republican.

One of the purposes of the call center is to log complaints into a national database in preparation for lawsuits. But the Internet database went down at 11 A.M., so they became primarily a voter information hotline. This is fine with most of the people there, who seem pleased to be helpful.

When the DNC files a suit about the long waits outside polling places that have caused most of the day's complaints, an idling Election Protection spokesperson, who hopes to be admitted to the bar soon, sighs gratefully, "They saved us the trouble of filing anything." A man with a graying ponytail and a polka dot tie agrees that the news is good. The DNC should file the suit, he says, since "they've got the bucks."

According to the spokesperson, the Legal Command Center had no reports of intimidation at the polls "other than the occasional partisan person who was too aggressive." And even though it appears that "every ruling went in favor of the challengers, there was less in the way of organized, structured challenges" than they expected.

Indeed, the only report of a successful challenge came from the Republican call center rumor mill. "There was one kid" at the polls as a challenger, who "was there when someone came in and gave a name and street address. The kid lived on that street, and he knew everyone on that street, and he said, 'You don't live on that street.' The voter left."

IT WAS 9:00 P.M., the polls were closed, and everyone agreed it was getting late. But not late enough to know which way the race was breaking. The Ohio Republican lawyers remained on red alert. A polling place at the Howard Recreation Center was still serving voters who had been in line by the 7:30 P.M. closing time. The door had been locked then to prevent late arrivals from voting. Outside the door was a cluster of lawyers--two from the Roving Legal Team and some folks from the 11th-floor office.

Conspicuous in trench coats and blue blazers, they twiddled with their cell phones and PDAs and twittered among themselves, because people were still going in every time someone came out of the supposedly hermetically-sealed polling place. This happened pretty often. When a pizza delivery guy sneaked in as someone exited (using the time-honored technique of pizza deliverymen), they decided to get the wheels in motion to get this one entered into their file of irregularities, too. After all, they reasoned in their lawyerly way, if an election that affects the fate of the world can dangle by a chad, who's to say it can't also turn on the untimely delivery of a pizza.

But it would soon become clear that all those hours in the cold rain weren't necessary. The Kerry campaign said they wanted the votes counted, not recounted. And Bush was winning the popular vote in Ohio and nationally by a comfortable margin. When Kerry conceded at 2 o'clock on Wednesday afternoon, if you paused again to listen, you could hear the sound of a thousand lawyers reaching for their cell phones one last time--to make plane reservations to go home.

Katherine Mangu-Ward is a reporter at The Weekly Standard.