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Cleveland — In the end, it was not the legal challenges or the hordes of lawyers that made history here in the Buckeye State, which before the election stood as a must-win for both President George W. Bush and Sen. John Kerry. The drama didn’t unfold in courtrooms. Instead, the Election Day uncertainty was resolved the old-fashioned way: by the 136,000 votes separating Bush from Kerry in this key battleground state. And in deciding not to pursue an expected legal strategy, it was Kerry in his concession speech who said that voters — 75 percent of whom turned out in some parts of Ohio — would decide this election, not the courts. Still, along the way lawyers and other Election Day legal volunteers made their mark here, albeit mostly behind the scenes. MONDAY, NOV. 1. AFTERNOON Less than 24 hours before the election, Donna Taylor-Kolis, the Kerry campaign’s chief legal counsel for Cuyahoga County, was chain-smoking Salems and taking a rapid-fire series of phone calls in her office in downtown Cleveland, traditionally a Democratic bastion. Earlier in the day, two federal district courts in Ohio had issued orders that threw a roadblock in front of Election Day “challengers,” partisan poll monitors who have the right to challenge ballots if they don’t believe that they’re valid. The rulings halted a Republican plan to place 3,600 such challengers at Ohio polling places, taking advantage of a little-used 1953 state law that authorized their use. Judge Susan Dlott, a Bill Clinton appointee in the state’s Southern District, threw out the statute as unconstitutional. Similarly, Judge John Adams, appointed in 2002 by President Bush to the Northern District of Ohio, held that challengers impaired the constitutional right to vote. It looked like an 11th-hour victory for the Democrats, who called the Republican strategy an attempt to suppress Democratic turnout. But Taylor-Kolis, a personal injury lawyer and graduate of Cleveland State University College of Law, wasn’t celebrating. When, in a harried conversation over speaker phone, Taylor-Kolis was asked how things were going by another Democratic attorney, the stress of being in charge of her party’s legal effort in one of the most important counties in a key battleground state was apparent. “Well, today is sort of like a battery acid enema,” she said. Sitting in her fluorescent-lit office, which was adorned with a model of the human body complete with removable plastic organs, Taylor-Kolis took another call, this one about monitors from the Voting Section of the Justice Department’s Civil Rights Division. “That’s great if they get in there and we can talk to them first. Then we don’t have to sue people,” Taylor-Kolis said. “We want to come out squeaky clean. We don’t want to overreact.” Indeed, Taylor-Kolis repeated over and over that election litigation was a last resort. But her immediate concern was when and how the U.S. Court of Appeals for the 6th Circuit would rule in the appeals by Republicans of Judge Dlott’s and Judge Adams’ decisions. The Democrats themselves had thousands of their own challengers registered in Cuyahoga County who the party said wouldn’t exercise their right to challenge voters, but would mostly keep an eye on their Republican counterparts. For Taylor-Kolis — and her Republican peers — getting word to the challengers on whether they should show up when the polls opened at 6:30 a.m. turned out to be a last-minute effort. Around midnight, a three-judge 6th Circuit panel ruled in a split decision that challengers would be permitted in Ohio polling places. Shortly before the polls opened, the U.S. Supreme Court said it would decline to step in. It appeared that the challengers would be out in force. TUESDAY, NOV. 2. MORNING Election Day dawned to a gray drizzle — just the kind of weather Democrats prayed at a Kerry rally in the city’s downtown Monday night wouldn’t come their way. But it was the conditions that Republicans in Ohio had said, half-jokingly, that they were hoping for. Even before the sky was light, a steady stream of voters began filing into the polls in the lobby of Morning Star Towers, Section 8 housing on the northeastern edge of Ward 8, a predominantly African-American Cleveland neighborhood. Democrats had feared that Republican challengers would target minority neighborhoods, but voters at Morning Star Towers said they didn’t think there was a Republican challenger present. Instead, voters were greeted by nearly a dozen monitors from nonpartisan groups and from the Kerry/Edwards campaign, who were staked out along a periphery of plastic American flags that marked the 100-foot state-mandated buffer zone between themselves and the polling booths. Dressed in a white jacket emblazoned with “Voting Rights Team” in thick black lettering, Peter Locke stood with his hood up against the rain, calling out to voters as they entered the polls. “We’re here to help,” he said. “If you have any problems let us know.” And when they left: “Did you have any trouble voting? How did it go in there?” Locke, a Chicago resident, was mostly met with polite smiles and nods, and a few glances of consternation. If voters didn’t have many questions, at least one poll worker did, coming out of the building to ask what he should do after discovering that one voter’s address was listed incorrectly on the voter rolls. Locke suggested use of a provisional ballot, a measure widely expected to be the root of conflict on Nov. 2 between Democrats and Republicans. A few minutes before 7 a.m., a handful of Columbia University Law School students showed up, armed with voter rights guides and plastic rain ponchos. Some of the thousands of volunteers for the nonpartisan Voter Protection Coalition, they posted signs with toll-free voter assistance numbers and prepared to wait out what promised to be a soggy day. At East High School in the city’s Ward 7, an even bigger clump of election monitors had gathered, including Ned Miltenberg, a lawyer at the Center for Constitutional Litigation in Washington and a nonpartisan voter rights volunteer. Hope Melton, a 26-year-old voter from Cleveland’s Ward 10 neighborhood, said voting had gone smoothly for her earlier in the day and she wasn’t worried about challengers — but at the least, volunteers like Miltenberg were reassuring. “They make me feel safe,” Melton said. TUESDAY, NOV. 2. AFTERNOON By afternoon, it was clear that even with the court of appeals decision in their favor, the Republicans’ strategy for deploying challengers was on a reverse course. Some Democratic challengers left polling places in Cuyahoga County when their Republican counterparts didn’t show. Jeff Flint, an Ohio Republican Party spokesman in Cuyahoga County, said that challengers have been instructed mainly to observe, not aggressively contest. He said only about 400 of the 1,300 challengers registered in Cuyahoga County were spending the whole day at the polls. Some of them were confused about the late court decisions, and others were reassigned within the campaign, said Flint, nevertheless adding, “The more observers, the better.” The retreat, however, wasn’t surprising. On Oct. 29, Ohio Secretary of State Kenneth Blackwell, a conservative Republican and a state co-chairman of the Bush-Cheney campaign, issued a statement recommending the removal of challengers from polling places. And on Oct. 27, the courts rebuffed some early challenge attempts when Judge Dlott halted county election board hearings for about 35,000 Ohio voters challenged by the Republican Party — 17,000 of whom were in Cuyahoga County. On Tuesday afternoon, though, there was a short-lived drama at the Martin DePorres Center on East 123rd Street in Cleveland, where a young man who Flint said was a registered Republican challenger reported that a ballot box seal was broken. As he was leaving the Cuyahoga County Republican headquarters for the Ward 9 polling place, Flint gave a dramatic warning of “funny business” going on in Ward 9. But once Flint arrived at the center, the storm blew out. “He doesn’t want to make accusations,” Flint said of the challenger, who returned to his perch at a voting table. But already a small flock of television crews, including one from “60 Minutes,” was hovering outside the center’s door. Then, police arrived after one poll worker accused another of opening the box. But that didn’t go anywhere either. Flint was forced to engage in a series of delicate maneuvers to deflate the giddiness of the TV crews on a day when the only news seemed to be rain and long lines. First, poll workers said, the box was only open for 15 seconds. Then, the word was that the box was never opened at all. No one was arrested. And before a legion of lawyers could descend, Flint called off the inquiry. WEDNESDAY, NOV. 3. MORNING At 8:30 a.m., with the presidential election hanging in the balance and with Ohio, labeled in breathless media reports as “the new Florida,” as the likely decisive state, lawyers from both parties were expected to convene at the Cuyahoga County Board of Elections, a squat gray building a few blocks from downtown Cleveland, to haggle over provisional ballots. But around 8:45 a.m., the building’s doors were still locked and the only activity visible through paneled windows was a few cleaning staff members, slowly picking up the vestiges of the night before, a scattering of plastic cups and paper scraps that littered a conference room floor. A fleet of television satellite trucks were still perched near the curb, but some crews that had been hunkered down all night started to pack up their gear. Poll workers said they had been counting votes until 4 a.m. and still hadn’t come up with a tally on how many provisional ballots had been cast. No press conferences were scheduled. The last shred of hope for Kerry was that the number of provisional ballots in Ohio would be significantly higher than the margin of 136,000 votes by which Bush had taken the state. Ohio had enough electoral votes to perhaps give Kerry a win. Democrats were hoping that as many as 250,000 provisional ballots existed, but by Wednesday morning, Phyllis Bossin, a Cincinnati lawyer and the southwestern Ohio legal coordinator for the Kerry campaign who had been up until 4 a.m. awaiting word from campaign headquarters, said that the number was more likely between 150,000 and 200,000. Almost all had to both be valid and cast in favor of Kerry for the Democrat to have a chance. And so, like most of the legal wrangling anticipated in this election, the last round had to be forfeited as well. In Boston later that afternoon in his concession speech, Kerry made it clear that he would avoid the kind of extended litigation the country had witnessed four years earlier. “In America, it is vital that every vote count, and that every vote be counted. But the outcome should be decided by voters, not a protracted legal process,” Kerry said. “I would not give up this fight if there was a chance that we would prevail.”

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