Electoral storm warning, with Gordon Lloyd (Scripps Howard News Service) October 14, 2004

We take no joy in issuing the following storm warning: Conditions are right for a perfect storm on Wednesday, Nov. 3, the day after Election Day. Winds of political frustration may combine with aggressive campaign lawyers and hyperactive federal judges to blow the presidential election into a morass of litigation and uncertainty.

In a perfect storm, separate weather conditions combine to create a storm of unparalleled strength and fury. Three such political climate conditions are now developing that could well come together the morning after the election. We urge citizens to take cover with a clearer understanding of what the Constitution says about elections and to exercise self-restraint.

One unsettling condition is unprecedented concern about voting variations and methodologies. Some are complaining, even before the election, that battleground states such as Missouri, Ohio and parts of Florida still use paper ballots, while others argue that new voting technologies do not work properly anyway.

Then there’s the fuss about disparate treatment accorded nearly 5 million felons who might vote. Add to these protests about differing state approaches to voter identification and even objections to the Electoral College rendering votes in some states more consequential than others and you have a real storm brewing.

Underlying these pre-election fears is the myth that voting in a federal election should be uniform, a premise not supported by the U.S. Constitution. In fact, the Constitution clearly provides for state liberty–and therefore diversity–and not federal uniformity in voting. The times, places and manner of voting are, under Article I, Section 4, to be set by state legislatures. Congress may intervene if it wishes, but it has consistently deferred to the states.

A second dangerous wind has been blowing in recent years — namely, a growing tendency by federal judges to impose their notions of democracy through aggressive application of the “equal protection clause” of the Constitution. For example, a three-judge panel in the federal 9th Circuit felt California wasn’t ready to carry out a proper recall vote for governor — in spite of the fact that the secretary of state had duly authorized the election — and said the voting could not go forward as scheduled. Fortunately the judges were overruled, but their philosophy — judges decide what is fair and equal — is still blowing throughout the federal court system.

Add to this a third storm center, one that traces its roots to tobacco litigation, hot McDonald’s coffee and the 2000 Florida recount. For the first time, thousands of volunteer lawyers have joined both presidential campaign teams. The old lawyer joke is largely true: A town with only one lawyer has little legal business but, add a second lawyer, and the courts are booming. Lawyers for both sides are already preparing both to attack and defend voting irregularities and defects of every kind, bringing the prospect of unwelcome litigation and delay to the presidential election.

It does not take a great deal of imagination to foresee these three storm systems coming together after the election into a perfect electoral storm. Lawyers for the losing side may be only too ready to bring lawsuits on behalf of plaintiffs who feel that their vote was “unequal” because of how elections were carried out in their state. Federal judges, only too eager to rewrite the rules of democracy, may then hold that state’s election to have violated the equal protection clause of the Constitution, blowing a hurricane of uncertainty across the nation.

How will we escape from the path of this perfect storm? The Constitution provides a safe ground, if citizens, campaigns, lawyers and judges will only heed it. The framers of the Constitution understood that we are both a nation of states and of people, and that we are the United States — not the Uniform States — of America. Voting methodology is a matter left to the states and diversity is both allowed and respected.

If the time has come to consider major electoral reform, there are two proper ways to do it. One is to ask Congress to use its oversight power in Article I to propose greater federal standards in voting. The other is to advance Constitutional amendments that will diminish or even eliminate the role of states in federal voting. Until such a time, we need a period of calm — of self-restraint — to avoid the perfect electoral storm.