Taking the electon to court (again), with Gordon Lloyd (San Francisco Chronicle) October 10, 2004

After the 1960 election was decided by televised debates, every presidential candidate understood the importance of media consultants and a television strategy. Sadly, with the 2000 election settle in courts of law, campaigns now believe they also need a team of lawyers and a legal strategy.

Even as the campaign climaxes with the rhetorical “air war” of presidential debates and the political “ground war” to get out the vote in battleground states, the 2004 “legal war” is being charted by growing teams of lawyers for each campaign. The legal preparation is partly defensive, but we believe there is also an offensive legal strategy afoot that could land the election in court again, regardless of who wins, or even the margin of victory.

An unprecedented number of preemptive complaints and questions about voting processes are already setting the stage for such a legal challenge:

* Is it proper that voters in 31 states are casting ballots, both absentee and in person, right now, nearly a month before election day?

* With 4 million Americans, including 160,000 soldiers in Iraq and Afghanistan, abroad, some complain that no uniform approach assures that ballots will be received on time.

* Paper punch-card ballots that spawned Florida’s notorious chads are still used in some of the hotly contested states, including Ohio and Missouri.

* Former President Jimmy Carter says Florida has not made sufficient improvements to creat “uniformity in voting procedures,” while others complain that new voting technologies don’t work and demand a return to the paper ballot.

* Identification required to vote is strict in some states and lax in others.

* Critics argue that the “winner take all” electoral vote means that votes in some states are worth less than those in others.

As surely as McDonald’s coffee is hot, these complaints point to lawsuits that will be ready for filing the morning after the election. Plaintiff voters may complain that one or more of these unfair processes render their vote “unequal,” violating the equal protection clause of the U.S. Constitution. And some federal judges — who have been reshaping American law with their misguided notions of equal-protection democracy — will be ready to hear the case.

Ignored in all this electoral fear-mongering and legal posturing is the U.S. Constitution, which expressly endorses diversity — not uniformity — in federal elections. Constitutionally, we do not have a single national election for a leader of America, but rather 51 separate state elections (the District of Columbia is treated as a state for this purpose) for a president of the United States. And the Constitution expressly allows the states considerable liberty, even at the risk of diversity, in how they carry out these elections.

State legislatures are constitutionally empowered to set the times, places and manner of elections, according to Article I, Section 4, subject to congressional intervention. But Congress has deferred to the states, requiring neither a national ballot nor, as independent presidential candidate Ralph Nader has discovered, a uniform procedure to qualify for the ballot. Nor is there any congressional directive about the time of opening and closing of the polls.

History reminds us of state diversity, even in those eligible to vote. Could African Americans vote prior to passage of the 15th Amendment in 1870? The correct answer depended on the state in which they lived. Same with women prior to the 19th Amendment in 1920 and 18-year-olds before the 26th Amendment passed in 1971. If you were a woman in Montana or an 18-year-old in Hawaii, you could have voted before the federal amendments.

All of this state diversity sounds undemocratic to our ears today, conditioned as we are to believe that democracy requires uniformity. But as long as we continue to be, as the founders believed, both a nation of states and a nation of people, the Constitution calls for state diversity rather than federal uniformity in voting. Hyperactive federal judges should not allow frustrated politicians to tie up otherwise proper elections with legal challenges to state diversity.

If there is a case to be made for increasing federal standards for elections or for major electoral reform, it should be argued before Congress or in the context of a constitutional amendment well after the election. Any attempt to federalize voting standards through court cases filed the morning after the election would truly be the wrong war, wrong place, wrong time.

This op/ed appeared on Pg. E-5.