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Storm Clouds Gathering Over the Legitimacy of This Election
Published on Monday, October 25, 2004 by the Los Angeles Times
Storm Clouds Gathering Over the Legitimacy of This Election
by Ronald Brownstein
 

In a presidential campaign that's grown increasingly bitter, maybe the one thing both sides can wish for is a decisive result.

If the race between President Bush and Sen. John F. Kerry stays close, the risk is growing that, as in 2000, millions of Americans — and millions of people around the world — will see the result as tainted or even illegitimate.

America has never had consecutive elections with a disputed outcome. But if voters don't give Bush or Kerry a clear victory, this election could produce competing charges of voter fraud and voter suppression, recounts, multiple lawsuits and even a split between the winner of the popular vote and the winner of the electoral college.

Those were the key elements of the postelection warfare in 2000, which ended only when the U.S. Supreme Court stopped the Florida recount and allowed Bush to squeeze out the nation's second narrowest electoral college majority despite losing the popular vote.

In another photo finish, the postelection battle could be more unwieldy than in 2000 — focusing not just on one state, but several. And that could have ominous implications for the next president, abroad as well as at home.

Both domestic and foreign audiences may have seen the disputes that erupted around the 2000 election as something like a once-in-a-lifetime natural disaster. But if this election provokes similar firestorms, the reaction abroad could be scorn.

"How can we run a foreign policy … arguing that we are the shining example of what it means to be a democratic government when on the most basic element of democracy, the casting and counting of votes, we get it wrong twice in a row?" said Ivo Daalder, a foreign policy scholar at the Brookings Institution think tank in Washington.

At home, another disputed result would dangerously institutionalize the idea that the election now extends past election day through after-the-vote legal and political skirmishing. It would guarantee that the next president takes office with a significant portion of the population considering him not only misguided, but fundamentally illegitimate.

And if the loser of the popular vote once again wins the electoral college and the White House, it could inspire more serious demands for changing the way America picks its president.

Three large storm clouds are gathering over the legitimacy of the 2004 result.

The first is the competing charges of voter fraud and suppression. Almost daily now, Republicans are accusing Democrats and their allies of signing up ineligible voters in their massive registration drives. Across the country, Republicans are organizing unprecedented efforts at polling places to challenge voters they believe are improperly registered. The Wisconsin GOP, setting a troubling precedent, plans to conduct background checks on 100,000 new voters to determine if they are legally registered.

Republicans call these efforts safeguards against abuses, such as an Ohio man who says he was paid in crack cocaine for turning in registration forms with names like Mary Poppins. Democrats, who are dispatching their own army of 10,000 lawyers to observe polling places, see these Republican plans as an undisguised attempt to intimidate and suppress minority voters.

Either way, it's easy to see how these escalating charges could reverberate beyond election day. If Kerry narrowly wins, conservatives could charge that he surfed to the White House on a tide of fraud; if Bush narrowly wins, Democrats may charge that he succeeded only because Republicans disenfranchised minority voters. Either argument might translate into postelection lawsuits.

Which leads to the second cloud: the prospect of extended postelection legal battles, especially over potential recounts. Ohio's heavy reliance on punch-card ballots could inspire more litigation over hanging chads.

Ohio and other states could also face lawsuits over their handling of provisional ballots. In adopting reforms sparked by the 2000 Florida fiasco, Congress mandated that voters whose names don't appear on the registration rolls be allowed to cast provisional votes that are counted if officials later determine that they are eligible. But states differ on whether they will consider all provisional ballots or only those cast in the proper precinct. If the numbers involved are large enough, lawsuits could proliferate over the conflicting standards for determining which provisional ballots are valid.

The third — and the largest — cloud looming over the election comes from the deja vu all over again category: the possibility that the popular vote winner will again be denied an electoral college majority and the White House.

Last time, Bush won the White House while trailing Democrat Al Gore by about 500,000 votes in the popular vote. This time, almost all polls show Bush is leading Kerry in the popular vote. But six surveys last week showed Kerry leading Bush collectively in the 10 or so states that both sides consider battlegrounds.

That pattern has some Democratic insiders quietly speculating that Kerry could lose the popular vote and win the White House. (The reverse scenario for Bush is still possible, though less likely.) In a recent Gallup Poll, more than three-fifths of Americans said they wanted to junk the electoral college and elect the candidate who wins the most popular votes nationwide. With another election that awards the White House to the loser of the popular vote, that discontent could flare into outrage.

All these clouds could dissipate if either candidate generates a strong enough tailwind to win conclusively. But if neither does, turbulent weeks are approaching. Like a hurricane that skirted the shore, the disputes of 2000 shook but did not shatter faith in the fairness of American elections. The nation may not be so lucky if another storm reaches land next month.

© Copyright 2004 Los Angeles Times

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