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While scads and scads of lawyers descended on Florida to thrash out the presidential vote in the courts, a contrary voice arose from some Delaware attorneys echoing the old battle cry of Vietnam-era dissent, “Hell no, we won’t go!” This lonely protest came from LAPEL — Lawyers Against Presidential Election Litigation. LAPEL was conjured up by David S. Swayze along with his partner J. Richard Tucker in the Wilmington office of Reed Smith. “Speaking for LAPEL, we are prepared to watch the process,” Swayze said. The bedrock principle of LAPEL is that elections are to be resolved as a matter of politics, not litigation, and to do otherwise could undermine the country’s confidence in the presidential selection system. LAPEL was boggled by the unending mutations of lawsuits in federal and Florida courts from voters and politicians, Democrats and Republicans, Gore’s campaign and Bush’s campaign, county and state officials — commandeering high-powered legal talent in quest of the 25 electoral votes expected to decide the presidency. Swayze knows the sweep that politics can have. A Democrat, he nevertheless emerged from Maryland’s consensus-minded political pool as counsel to Republican Gov. Pierre S. du Pont in the late 1970s and remains a presence in Dover as a lobbyist. Swayze tried to enlist other like-minded lawyers in LAPEL’s vigil of sitting-on-their-hands but didn’t get far. An e-mail he fired off to the American Bar Association was rebuffed. He wrote: “Please advise as to whether any standing committee of the Association is involving itself with the potential threat of litigation in Florida and quite possibly in a number of the other states intended to affect the outcome of the presidential election. “I and a number of my partners (of both political parties) are quite concerned about the negative impact of such litigation on the reputation of the legal profession and the level of citizen confidence in the Republic itself. Thanks for any information you can provide. Time is obviously of the essence.” The reply came back five hours later from Heather Wier, communications coordinator for the ABA Office of the President: “The ABA is a non-partisan organization and is in no way associating itself with the situation in Florida. There are no committees directly or indirectly involved with the potential threat of litigation.” Well, the ABA didn’t have to get snippy about it. Or perhaps it had to do what it had to do. Meanwhile, there were other Delaware lawyers who were on the recruitment roster for Florida. Richard A. Forsten and Timothy J. Houseal, counsel to the state Republican Party, were on the stand-by list for Bush’s campaign. Forsten is a partner at the Wilmington office of Klett Rooney Lieber & Schorling, and Houseal is a partner at Young Conaway Stargatt & Taylor in Wilmington. Houseal was chafing to join the greatest courtroom circus on each, even as he acknowledged there was something to LAPEL. “I don’t know as I’m ready to join Swayze’s organization, but I agree with his sentiments,” Houseal said. “A lot of litigation is not helpful. There may come a time for litigation, but the parties should have stayed back and let the Florida election officials do their job. I don’t think it was productive, and it’s potentially dangerous to our democracy.” Like Houseal, Forsten would have preferred to be in the thick of things, given that matters of moment always seem to end up in the courts these days, anyway. “It would be exciting and interesting to be there and be involved. It’s a little frustrating to keep checking the radio or the Internet,” Forsten said. State Democratic Chairman Richard H. Bayard, of counsel to The Bayard Firm in Wilmington, wanted no part of LAPEL. “If it takes litigation to get ballots fully and fairly counted, so be it,” he said. “Al Gore won the election on the basis of votes cast. It just remains to be seen which ones get counted.” From the two remaining lawyers in the Delaware congressional delegation, there was concern about what the electoral excess in Florida could portend. U.S. Sen. Joseph R. Biden Jr., a Democrat who teaches constitutional law at Widener University law school, saw problems if the Florida vote is perceived to turn not on fairness but technicalities. “The one thing the American people care about the most is what’s fair,” Biden said. “They already think — although I disagree with them — the Electoral College is too technical. It’s a dangerous situation.” U.S. Rep. Michael N. Castle, a Republican, also was focused on the need for a legitimate vote tally. “It’s the most important vote people cast every four years,” Castle said. “Anything that pertains to a proper counting of the votes within reasonable judgment — and I’m not sure holding paper ballots up to the light is appropriate, although that’s for someone else to decide — and is in the bounds of being fair should be done.” Back at LAPEL, Swayze knew he was outnumbered but was not giving up the fight. “The litigation could create shaken confidence in one of the most core processes we have. This is one of those political questions that courts in most instances are wise enough to stay out of and in some instances are bound to stay out of,” he said. “I understand the stakes — the highest stakes imaginable. Believe me, I just want clarity. May the person who wins Florida win the day.”

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