Beyond the Margin of Litigation: ReformingU.S. Election Administration to AvoidElectoral Meltdown

I. IntroductionIn the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize. Locked in an extremely tight race for the presidency, incumbent Republican President George W. Bush and his Democratic challenger, United States Senator John Kerry, focused their attention on winning a few "battleground" states, most importantly, the State of Ohio. It turned out that under the Electoral College system the winner of Ohio's twenty electoral votes was to become the next president.1 Preliminary results on election night showed President Bush with an approximate 136,000-vote lead over Kerry2 out of approximately 5.5 million votes cast, with approximately 153,000 provisional ballots3 yet to be considered for inclusion in the totals.Facing these numbers-a 136,000-vote lead with 153,000 votes to be counted-Kerry lawyers "did the math"4 and concluded that the election was beyond the "margin of litigation."5 While Democrats had identified many problems with the way the election was conducted in Ohio, it was hard to come up with a legal theory that could capture enough votes so as to swing the results in Ohio, and therefore in the country, to Kerry. The morning after Election Day, Kerry conceded the race and agreed that Bush was victorious in his reelection quest.6 After the provisional ballots were counted, Ohio's final election results showed Bush finishing with 2,859,768 votes, compared to Kerry's 2,741,167,7 a difference of 118,601 votes.Suppose that the initial election night difference between Bush and Kerry in Ohio had been 36,000 votes instead of 136,000 votes, a result that would have required less than a 2% swing among Ohio voters toward Kerry compared with the actual results. In such circumstances, the Ohio-and national-election would have been well within the margin of litigation, and it would have gotten ugly very quickly.By all accounts, this presidential race was exceedingly partisan in Ohio and throughout the country. Responding to the first presidential meltdown in recent memory-Florida 2000-Democrats and Republicans in Election 2004 had dispatched "armies of lawyers" to litigate controversies over the rules of engagement.8 In Ohio, Democrats and their allies were already involved in litigation before Election Day over numerous issues, some stemming from discretionary decisions made by Ohio secretary of State Kenneth Blackwell. Blackwell, a Republican elected to the office of secretary of state, co-chaired President Bush's re-election campaign committee in Ohio, and many Democrats viewed him with distrust. In his capacity as the state's Chief Elections Officer, he had decided, among other things, that provisional votes cast by a voter in the "wrong precinct" would not be counted and that voter registration forms printed on paper not of sufficient weight were to be rejected (a decision he later reversed).9Republicans, meanwhile, had made their own plans for using election law for political advantage. They had announced shortly before Election Day that they planned to challenge 35,000 registered Ohio voters, which led to litigation making it all the way to the Supreme Court in the hours before the polls opened on Election Day.10Democrats had been litigating before Election Day to overturn some of Blackwell's decisions, and there was much more potential litigation in light of events on Election Day.11 Besides concerns about long lines at the polls-some longer than eight hours12-one of the more promising suits for Democrats concerned the lack of uniform standards for Ohio county election judges to use in determining whether to accept a provisional ballot.13 At issue was whether such a lack of uniformity violates the Fourteenth Amendment's Equal Protection Clause under the Supreme Court's Bush v. Gore14 decision, the case that ended the Florida recount in 2000. There also were allegations that Democratic and minority voters in Ohio faced long lines to vote because of a deliberate decision to provide an inadequate number of voting machines in predominantly Democratic and minority areas. …