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The presidential polls show a nation evenly divided between Republicans and Democrats. Florida remains a battleground. And Ralph Nader has just jumped in to the race. Sound familiar? It certainly does to the leaders of both major parties, who keenly recall the 2000 election and the 36-day struggle for Florida’s electoral votes. This year, both sides have already launched grass-roots efforts to get a leg up on the 2004 race, which may prove to be just as close. In a program they call Protect and Promote the Vote, or P2TV, the Democrats are tapping thousands of volunteer lawyers in hotly contested states. They will watch polling places and be prepared to go to court. Even before Election Day, these lawyers will look out for attempts by voting officials to purge voter rolls or make it more difficult to register. And some of these lawyers could be called upon if Democrats decide to challenge Nader’s efforts to get on the ballot in key states. “We will have trial lawyers in every target state,” said Democratic lawyer John Hardin Young, counsel at Washington, D.C.’s Sandler Reiff & Young. “We are now talking with all the lawyers who were involved in the 2000 election battle and to all those who were energized by Florida.” Young said it’s important to remain as local as possible. Swing states such as Pennsylvania, Ohio, Missouri, West Virginia and, of course, Florida are on the list, as are large states like California and New York that the Democrats carried handily in 2000. “I never want to see the tragedy again that occurred in Florida,” said Young, who works closely on the project with Joseph Sandler, name partner in his firm and the Democratic National Committee’s general counsel. “Had we been on the ground and forced judges to work with the voters, 6,000 voters might have made a different decision in 2000.” Democrats continue to claim that the “butterfly ballot” and a flawed recount canceled thousands of votes intended for Al Gore and handed the election to George W. Bush. Republicans want to make sure that the presidency isn’t decided again by a 537-vote margin in a key state. The GOP also has been working for months to build a grass-roots political machine in Florida and elsewhere. The Republican project is known as the 72-Hour Plan, said party spokeswoman Christine Iverson, because the last 72 hours of the campaign is always the most crucial. It was first put into practice in senatorial races in 2002 and some off-year governors’ races in 2003. But the presidential contest will be its biggest test yet. “Every state is important to us,” said Iverson. “This will be a very close election.” Iverson said the idea is “to put shoe leather back into politics and to turn people out to vote. Politics isn’t just TV ads and direct mail. This is time-consuming and labor-intensive.” “Every American should get a chance to vote – but only once,” Iverson said. Iverson said it’s too early to discuss the exact role that lawyers will take in the project. Jill Holtzman Vogel, a Virginia lawyer who was named chief counsel of the Republican National Committee on Feb. 23, declined comment, referring questions to Iverson. In Florida, the problems of 2000 have hardly disappeared. Some lawyers from the recount litigation said an electoral logjam remains possible, even though the state has switched from punch-card ballots to electronic voting. “We still have no uniform ballot in Florida and no ability to do a uniform recount today,” said Mitchell Berger of Berger Davis & Singerman, a major Gore fund-raiser and Democratic activist. “We have new machines, but they are different from each other. The problem of Bush v. Gore is still here.” Joseph Klock Jr. of Miami’s Steel Hector & Davis, who represented then-Florida Secretary of State Katherine Harris in 2000, said that a true repeat of the debacle is unlikely but that plenty of systemic problems persist. “We’re still not geared up to decide a close election that quickly,” Klock said. “It’s still not unusual in Florida for someone to be removed from office after serving for a year and a half [once there is a final result]. That obviously can’t happen with presidential electors.” Klock also said human error will always be part of the voting process. “I’ve come to the conclusion that there are some people who simply don’t have the skills to vote, no matter what the technology is,” he said. One improvement that many had counted on a couple of years ago — an infusion of federal money into the states to upgrade voting technology — is not ready yet and may not be until 2006. Congress enacted the Help America Vote Act in 2002, creating a new Election Assistance Commission, but the four commissioners were just installed this year and aren’t even scheduled to meet until March 23. They don’t even have their own office space, phones or e-mail. States are still clamoring for a piece of the $2.3 billion that has been set aside nationwide for revamping their voting systems. But it will be at least May until any of the money is available. Moreover, many Democrats, newly concerned about the possibility of computer hacking, now want to take a closer look at the security of technologies like touch-screen balloting. In addition to lining up litigators at the polling places, Democrats are contemplating another line of legal attack — a head-on challenge, well before Election Day, to Nader’s state-by-state efforts to get on the ballot as an independent. In 2000, as the Green Party’s nominee, Nader appeared on the ballot in 43 states. Many leading Democrats believe the third-party candidacy siphoned off just enough votes to bring about Gore’s defeat. “People are very, very concerned about Nader because they expect the race to be very tight,” said a well-connected Democratic lawyer in Washington, D.C. “I would anticipate that the Democratic Party will do all they can to keep him off the ballot. That includes legal challenges: Did he use the right kind of paper clips on his petition?” Said Scott Maddox, the Florida Democratic chairman: “We have election lawyers who are on board already, and we will make sure that Nader adheres to the law. “I imagine that Nader will have help from the Republicans in putting together his petitions,” Maddox said. “If the Republicans can bring people from out of state to put together a riot in Miami-Dade County to stop the counting [in 2000], they can do this, too.” GOP spokeswoman Iverson replied that those who think Nader is getting GOP support “are welcome to their conspiracy theories, but that’s simply not true.” Some leading Democrats are not sure that challenging Nader’s ballot drive would be good politics. Ronald Klain, the D.C. O’Melveny & Myers partner who was a senior adviser to Gore in 2000, said the best approach to the Nader problem is political, not legal. “Our job is to convince people about what a vote for Ralph Nader might mean,” said Klain. “The nation has, obviously, had a four-year lesson in the consequences of voting for Nader.” Klain said it’s very difficult to mount a successful challenge to an independent candidate’s ballot efforts. “If you’re a third-party candidate, you either have the resources to put together enough signatures or you don’t,” he said. “And the single most open ballot in the country is in Florida, where there were 11 presidential candidates in 2000.” Berger said trying to limit another candidate’s ballot access “is not the kind of thing that Democrats like to do.” Democrats, he said, have historically wanted elections to be open to as many candidates and voters as possible, and an effort to keep Nader off the ballot would not ring true. “The problem in 2000 wasn’t Nader, but those who supported him,” Berger said. Young, who is masterminding the volunteer lawyers’ initiative, said Nader “has not a thing to do with this effort. Nader has no impact on this election.” Spokespersons for the Nader campaign declined comment. Juscha Robinson, a Wisconsin attorney who is a Green Party leader, said her party is already on the ballot in 23 states and, with the help of the American Civil Liberties Union, has ballot drives under way in at least seven more. Nader declined to run as a Green this year, and the party will pick its presidential nominee at its June national convention in Milwaukee. This article originally appeared in Legal Times , a publication of American Lawyer Media.

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