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Though Al Gore has conceded, it’s not too late to play a role in the first presidential election decided by lawyers. If you dreamed of parachuting into Florida to battle beside David Boies or Barry Richard, don’t despair: There’s still time to make history. But you have to get creative, and you have to act fast. Democratic-leaning attorneys might pursue the following paths toward glory. If it’s truly a violation of the equal protection clause to count ballots by hand in selected counties, then it must be unconstitutional to permit selected voters to use more accurate voting machines. The fact that some counties can afford the better optical scanners does not mean that the state can ignore unfair voting opportunities. Why not sue Secretary of State Katherine Harris for allowing Florida’s 67 counties to maintain nonuniform voting systems? Bonus: an unsympathetic defendant. Another line of attack is the Voting Rights Act of 1965, which bars states from discriminating based on race. The law applies to “all action necessary to make a vote effective.” In this case, separate and unequal voting machines certainly had a disparate impact on minority voters — like the estimated 9,000 in Duval County whose ballots were thrown out. The Voting Rights Act also provides recourse against those who “intimidate” election officials. So why not sue the fist-waving Republican operatives who bullied the Miami-Dade County canvassing board into suspending its recount? And don’t forget to tack on a civil RICO claim. Elderly voters might have a tenable claim based on 42 U.S.C. Section 1973ee, which requires localities to provide instructions in large type, among other things. The baffling ballots in Palm Beach and Duval counties violated at least the spirit of that statute. And don’t overlook Florida’s civil rights law, which, not surprisingly, protects the geriatric. The Florida Legislature is another tempting defendant. But for its negligent drafting, the election would have been over weeks ago. Your chief problem: The standard of care for statutory drafting may be de minimis, and lawmakers could duck behind legislative immunity. And there is surely no greater affront to “one man, one vote” than the Electoral College — provided you can elbow Sen. Hillary Clinton aside as lead counsel. DEFENDANT GORE For GOP-friendly lawyers, there are a host of claims to bring against Gore based on his refusal to concede sooner. For starters, it’s self-evident that many prominent Republican women will not have time to be fitted with appropriate formal attire for W.’s inaugural hoedown. Tragically, many will suffer severe emotional distress under the withering public scrutiny of their hastily acquired gowns. What about soap opera and sitcom viewers whose favorite programs were interrupted by numerous Gore appearances? They could sue the vice president for tortious interference with their ability to conduct business with program advertisers. Likewise, the major networks could pursue interference claims against Gore. If they can show that their valuable programming assets were diminished during the critical November ratings period, they could argue that the vice president’s conduct amounted to a regulatory taking. Don’t laugh. Flimsier takings claims, such as those pursued by the Winstar savings-and-loan plaintiffs, have succeeded. And if you really want to break new legal ground, sue Gore under the Third Amendment. Yes, it technically bars only the quartering of soldiers, but you could argue by analogy that it prohibits any government commandeering of private property, such as broadcast facilities. Broadcasters, too, may be on the hook. As Rep. Billy Tauzin has pointed out, several networks called Florida for Gore while Panhandle polls were still open. Who knows how many Republican voters were so devastated by the news that they could not bring themselves to vote at all? Don’t overlook the publicly traded companies who have lost millions. The financial markets typically enjoy a post-election bounce. But this year, between Nov. 7 and the end of the month, the Nasdaq fell 24 percent while the Dow declined 5 percent. Although the vice president would have a powerful First Amendment defense against any takings claim, your client might prevail before a sympathetic Federal Circuit panel. A SUIT FOR EVERY LAWYER The key point is that you can find work in Florida regardless of your practice area. For example, if you’re a securities class action attorney, forget about blaming Gore for the fallen market. Instead, identify some companies whose stocks tanked recently due to their ill-timed, but still fraudulent, failure to disclose material information. Product liability lawyers could sue the manufacturer of the punch-card device. As we learned in Judge N. Sanders Sauls’ court, there is damning evidence that the machine’s defects were well-known. Begin with the patent application for an improved machine. If you enjoy a theoretical challenge, you can sue God. After all, Florida is “God’s Waiting Room,” and it’s self-evident that the Supreme Being recklessly allowed voting to unfold in a disastrous manner. A “reasonable” deity would have sent a plague of locusts. There’s also work for IP specialists. If the Gore campaign properly protected its logo, it could sue the “Sore/Loserman” protesters for infringing and disparaging its mark. Try to keep a straight face when the Republican defendants invoke 2 Live Crew, the rap group that inspired the Supreme Court to rule that parody can be fair use. There’s even business for antitrust advocates. Why not break up the Voter News Service, the joint venture that actually conducted the exit polling in Florida? As the American Antitrust Institute points out, premature reports that Gore won the state might have been avoided had the networks done their own polling. And we mustn’t forget the most aggrieved: the sorry souls named Chad. Since mid-November, media outlets have falsely claimed that they “swing,” “hang,” or are “pregnant.” While group defamation claims are very tough, many Chads can certainly prove that their reputations have been severely tarnished. Finally, you might save everyone future trouble by seeking a declaratory judgment that strictly interprets Article II, Section 1 of the U.S. Constitution. State lawmakers relied on this language (“Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . . ”) when they moved to appoint their own slate of Bush electors. And the Supreme Court made clear last week there is no constitutional right to vote in presidential elections. Legislative choice might not be a bad idea. After all, voting is an inherently arbitrary process, fraught with human error and mischief. Given the keen public interest in election finality, why not have legislators appoint presidential electors directly, without the delay of a statewide vote? Then there would be no unhappy voters shouting they “wuz robbed.” No absentee ballots or absentee ballot applications. No purging of voter lists. No unclear instructions. No machine recounts. No manual recounts. No dimpled chads. And, of course, a lot fewer lawsuits. Ted Allen is a lawyer and journalist in Washing ton, D.C. “Every 6 Minutes” is published monthly in Legal Times. He can be reached at [email protected]

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