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Reeve Bright, general counsel to the Palm Beach County, Fla., Republican Executive Committee, didn’t get a lot of sleep on Election Day 2000. “I was up all day and most of the night watching the returns,” he says. “Then, around five in the morning, I got a phone call telling me to get to the supervisor of elections’ office.” From there, he watched the storm erupt. Miami appellate attorney Ben Kuehne, chief legal counsel to the Miami-Dade Al Gore campaign, got no sleep at all. “I spent Election Day 2000 fielding complaints of voters turned away from the polls,” he says. A victory party that evening turned sour, by 6:30 the next morning he and Miami attorney Kendall Coffey were on the phone with state and national party leaders, and the Florida presidential ballot recount fight was on. Lawyers for both parties hope they’ll get more sleep this Election Day and are taking aggressive steps to head off the debacles of 2000 and the Sept. 10 primary. But with the governorship of President Bush’s brother at stake in a tight race, both Republican Gov. Jeb Bush and Democratic challenger Bill McBride plan to deploy squads of lawyer-observers and litigators who will be prepared to fight for every vote. In addition, there will be teams of lawyers from the U.S. Department of Justice and from independent watchdog groups like People for the American Way and Judicial Watch in the polling places and standing by to file legal challenges if they perceive that the voting is going awry. With the battalions of lawyers and other monitors, Election Day in Florida may seem more like an election in Haiti or Bosnia or some other international trouble spot. “The Sept. 10 primary was a wake-up call and a reminder,” says Lisa Ginsburg, a Miami solo practitioner who is general counsel for the Miami-Dade Democratic organization. Surprisingly, though, the county election supervisors in Miami-Dade and Palm Beach counties say neither party nor gubernatorial campaign has coordinated efforts with them to prevent snafus. “If they’ve got concerns, I’d rather they reach me beforehand,” pleads Miami-Dade Supervisor of Elections David Leahy. “My door’s open.” There is a major difference in focus between the two parties’ legal and poll-watching operations. While both sides are concentrating on monitoring precincts rich in minority and senior voters, where the biggest troubles occurred in the recent past, the Democrats want to err on the side of letting everyone who walks into the polling place cast a ballot. “[The Democrats] would like to have every person in the county over the age of 18 get into the polls,” the GOP’s Bright says. But the Republicans want “to be sure that every vote cast is a legal one,” says Republican Party of Florida spokesman Towson Fraser. “We want to be sure that that the anecdotal misbehavior of the past isn’t repeated.” In the Democratic camp, both the party organization and the McBride campaign have their own legal squads. The general counsel for the McBride campaign is Bob Bolt, a partner at Barnett, Bolt, Kirkwood & Long in Tampa, Fla. Bolt, who roomed with McBride in their college days at University of Florida, is a newcomer to election work who will serve chiefly as a traffic cop among the campaign’s election law experts. The McBride campaign’s election specialist is David Cardwell, an Orlando solo practitioner and former director of the Florida Division of Elections. Litigation strategy is under the direction of Chris Griffin, an appellate lawyer and partner at Foley & Lardner in Tampa. Lead attorneys for the Democratic Party are Tallahassee lawyers Mark Herron, of counsel at Messer Caparello & Self, and Karen Gievers, a solo practitioner formerly from Miami. Both say they will spend Election Day on call for litigation. Lead counsel for the Republican Party of Florida is Eric Buermann, an of counsel attorney at Steel Hector & Davis in Miami. Buermann and other Republican attorneys declined to discuss their party’s legal planning or identify their chief legal advisers, referring all questions to party spokesperson Fraser. Bush campaign press representatives did not return calls for comment on this article. Besides Palm Beach County’s Bright, other county-level GOP legal counsel are Broward GOP general counsel Kevin Tynan, a partner at Bowman, Richardson & Tynan in Tamarac, and Miami-Dade general counsel Tom Spencer, a partner at Spencer & Klein in Miami. For the Democrats, only the Miami-Dade party organization has a designated general counsel. That’s Lisa Ginsburg. The Broward party’s chief attorney is its chair, Mitchell Ceasar. The Palm Beach Democrats will rely on the advice of Robert Diffenderfer, a shareholder at Lewis, Longman & Walker, and on that of several attorneys at Searcy Denney Scarola Barnhart & Shipley. Both firms are in West Palm Beach. IN THE PRECINCTS The Democrats have set up a division of legal labor on Election Day. While the McBride campaign will direct litigation strategy if court action is necessary, the party organization is placing attorneys on the ground at the precinct level to assure voter access to the polls. In counties throughout the state, but particularly in the tricounty area, Democratic Party activists have spent the last several weeks studying the fine points of Florida election law under the direction of party political operatives. Despite Florida’s election law reforms of the past two years, the tightened procedures implemented by the three South Florida counties and the presence of legal observers from the U.S. Department of Justice, Ginsburg says, the Democratic Party decided that it needed a force of well-trained legal observers in place on Election Day to deal with “unexpected human error and glitches with machinery.” As lead trainer of the Miami-Dade Democrats’ Election Day legal teams, Ginsburg has focused on teaching lawyers and other volunteer poll-watchers how to help get the polls open on time, make sure voters find their way to the polls, ensure that they use the new electronic voting machines properly, resolve any problems with voter lists and make sure voters who are challenged fill out provisional ballots. “We’ve always had a more intense ground operation than the GOP,” says Florida Democratic Party statewide political director Bandele McQueen “Both parties’ campaigns have always had legal counsel ready in targeted areas. But we Democrats found out in 2000 it simply wasn’t good enough to have people you could consult about the late opening of a poll here and there.” The Democrats’ approach of having attorneys in the field is based on a model developed in the successful Democratic gubernatorial campaigns in Virginia and New Jersey in 2001 by McQueen and Nadia Garnett, a political operative who is working the Florida campaign on loan from the Democratic National Committee’s Washington, D.C.-based Voting Rights Institute. The institute was established by the national party in the aftermath of the 2000 election. “The [Virginia and New Jersey] elections gave us a good idea what was helpful and what was needed on the ground,” McQueen says. Garnett has been the party’s Florida field director, overseeing the recruitment and training of the legal strike forces. Garnett has been running meetings, supplying materials and training others to train from Pensacola to the Keys. She made a special effort to recruit minority lawyers, including blacks, Hispanics and Haitian-Americans. “We want observers who speak the language [of the voters],” McQueen says. “That way the voter feels comfortable addressing issues with them.” The party’s legal efforts will be focused chiefly on the trouble-prone precincts in minority and elderly communities, which saw big problems in both 2000 and on Sept. 10. Kuehne, who participated in the Democratic party’s election law training seminars, says they were held in law firm conference rooms and union meeting halls and included attorneys, paralegals and other law firm workers. “We’d review the law, review past situations, brainstorm on other potential situations and identify resource people who are available for consultation.” Kuehne says the seminars featured war-game style scenarios: “Let’s say a voter is registered in Broward and moves to Dade. He shows up at the place he’s supposed to be in Dade and there’s great question he’ll be allowed to vote if the voting rolls still show him in Broward.” Because the voter in that instance should get a provisional ballot, Kuehne says, “we’ll push on behalf of the voter to make sure the vote counts.” Strike force members have been instructed to make every effort to resolve disputes at the precinct level on Election Day rather than litigate afterward, Kuehne says. They’ll have a handy list of phone numbers of key county election department staff. WAR ROOMS But if the party lawyers can’t get satisfactory results from their precinct-level efforts on Election Day, “you can be assured the legal team working to vindicate the voter’s right to vote will be available and ready to protect that right,” Kuehne says. “If there’s a serious problem that requires legal action, our lawyers will be prepared to respond immediately.” The Democrats’ Election Day litigation arm will center on a core group of six experienced litigators sitting in a Tampa, Fla., war room under the direction of Chris Griffin, says McBride general counsel Bob Bolt. Problems in most parts of the state but not South Florida that may require litigation will be directed to the Tampa team. But Democrats in Duval, Broward, Palm Beach and Miami-Dade counties each will have their own legal war rooms. Bolt says the campaign expects to have top local trial counsel on call in every county. In 2000, Tallahassee attorney Dexter Douglass served as the Democrats’ top litigator for statewide election issues that were brought to the Leon Circuit Court. But Douglass has been sidelined by back surgery. Bolt declined to identify any litigators besides Griffin. GOP MORE CENTRALIZED Republican Party spokesman Fraser says the Republican legal team consists of 300 to 400 volunteers, all of them thoroughly briefed and with copies of election law. He calls it a much more extensive effort in both size and coordination than in the past. The core GOP lawyer activists will spend at least part of the day at party headquarters. But most of the lawyer volunteers will go about their regular professional activities and be on call. The party will rely on nonlawyer poll-watchers to monitor precinct activity so party attorneys “aren’t tied down and have more flexibility.” “If the poll-watchers see something fishy, they’ll have someone to call,” Fraser says. He says they’ll be looking for problems, like voters who lack proper identification being allowed to cast regular rather than provisional ballots and voters who cast ballots in a different precinct in the previous election. There will be no GOP legal nerve center at the county and local levels. GOP attorneys will not take their complaints directly to county election supervisors. “Our guys will relay information up the party pyramid to state campaign headquarters and they’ll decide what to do,” Fraser says. “One problem in the past was too much static — 10 people hearing about an incident and everyone goes haywire.” The only exception to this centralized legal response model will be if there’s a clear cut violation of law at the polling place,” Fraser says. “The goal is a streamlining of the legal effort.” INDEPENDENT OBSERVERS Several other organizations will have attorneys and observers in Florida on Election Day, most of them targeting South Florida. Given the pivotal importance of the black vote in the Bush-McBride race, Election Protection, a coalition of national civil rights groups under the leadership of the liberal People for the American Way, plans to have 600 volunteers at 100 targeted precincts statewide. They’ll chiefly be deployed in Palm Beach, Broward, and Miami-Dade counties, but they’ll also be present in Duval, Hillsborough, Orange and Leon counties. The coalition’s attorneys — many of them black lawyers who were recruited through Florida’s Virgil Hawkins Chapter of the National Bar Association — will staff hotlines at field offices. Sharon Lettman-Pacheco, People for the American Way’s national deputy field director, expects to have 100 monitors in Miami-Dade, with attorneys “ready to be called on for legal recourse.” Judicial Watch, the gadfly legal activist group headed by Larry Klayman, which is known for its relentless efforts to force the Clinton and George W. Bush administrations to release secret records, says it plans to have 60 observers in Broward and Miami-Dade. They’ll relay information for possible legal action to a team of four staff attorneys at the organization’s Miami regional headquarters. The Washington, D.C.-based Center for Democracy, known for its role in monitoring elections around the world, has been invited by the Miami-Dade County Commission to observe Miami-Dade’s polling. Center president and CEO Allen Weinstein said the group will deploy 15 to 20 observers, chiefly to help county election officials with the voting equipment. To the consternation of Democrats, Republican Secretary of State Jim Smith has invited the U.S. Department of Justice to scrutinize Florida’s polling. According to Justice spokesman Jorge Martinez, his agency plans to assign 20 attorneys from its office of civil rights to monitor precincts in Miami-Dade, Orange, Osceola and possibly other counties. Justice Department lawyers will look for any allegation of irregularities or fraud, Martinez said. Martinez declined to say if the Justice Department lawyers would be reporting their observations to either local supervisors of elections, or to Secretary of State Smith. The Democrats’ strategy is a good one, according to Lance deHaven-Smith, professor of public policy at Florida State University. DeHaven-Smith says the attorneys could have a persuasive effect on poll workers, who may not be well-versed in the law. According to deHaven-Smith, even the newest, computerized voting machinery has a 3-percent error rate — 2 percent Democratic and 1 percent Republican. “With 6 million voters, if the Democrats can make those count, it’s enormous,” he says. GOP fears are also well-founded, deHaven-Smith says. “If there’s a sizable turnout at the polls there will be bottlenecks,” he says. Poll workers will be overwhelmed and improperly push through voters, he added. In addition, he notes, the use of provisional ballots historically has been an invitation to fraud in Florida as in the 1998 Miami mayors race. NO COORDINATION WITH COUNTIES State and county election officials are girding themselves nervously for the arrival of all these Election Day legal aces. Miami-Dade supervisor of elections David Leahy says that in his experience, “90 percent of Election Day complaints turn out to be inaccurate.” But he’s making a major effort to have any complaints reach his ears directly. And Miami-Dade is assigning county managers and technical staff to oversee every polling place. Leahy, who faced withering criticism over the widespread problems that occurred during the primary voting in September, plans to have an elaborate communications network in place, centered on a bank of 20 telephones at his headquarters office. He promises to have cellphone-toting quality control personnel in place at every polling place, in addition to a roving band of troubleshooters to deal with procedural issues as they arise. Leahy is relying on first assistant county attorney Murray Greenberg for counsel. But Leahy laments that neither the Republicans nor the Democrats have had their attorneys coordinate with his office regarding the handling of potential Election Day problems. Palm Beach County Elections Supervisor Theresa LePore, who received praise for how the September primary voting went in her county after the disastrous 2000 presidential election there, plans to have a similar Election Day communications system. She says there will be a lead worker at each precinct authorized to relay problems to her office. LePore says she will rely on county attorney Denise Dytrych for legal advice, though Democrats feel Dytrych was biased in favor of the Republicans during the county’s 2000 presidential recount battle. Like Leahy, LePore also complains about a lack of advance contact with Republican and Democratic party legal representatives. “I’d be glad to talk with them,” she says. In Broward County, where there were major Election Day snafus on Sept. 10, embattled Supervisor of Elections Miriam Oliphant has had her duties pre-empted by former assistant county supervisor of elections Joe Cotter. According to County Commission chair Lori Parrish, Cotter will oversee polling place staffing and logistics. The functioning of the county’s touch-screen voting machines will be the responsibility of county employees. LIMITED STATE ROLE In Tallahassee, Clay Roberts, director of the Division of Elections under former Secretary of State Katherine Harris and now general counsel to the current director, Ed Kast, promises that his division will be fully staffed “until the wee hours of the morning” on Election Day, and that it will be in communication with supervisors of elections in all 67 Florida counties. But Roberts insists that county election supervisors are responsible for the conduct of elections. “If they have a question about interpretation of statute, we provide them with support and advice,” he says. “But we don’t tell them how to do their job.” Roberts says that if lawyers for either Bush or McBride believe the county election supervisor is incorrectly interpreting the law and “they call me and I agree, I have some persuasive authority to talk to the supervisor. But the secretary has no legal authority to investigate the totals conveyed in a valid, certified count.” Roberts is compiling a list of the candidates’ and the major parties’ legal counsel so that “I’ll have their numbers and they’ll have mine if anything lawyer to lawyer needs to go on,” he says. Democratic counsel Cardwell agrees that if either party’s attorneys question the legality of a county elections supervisor’s ruling, they have to appeal to the courts, not to the secretary of state’s office. He says disputes at the local level will be taken to circuit court. If a statewide pattern of problems arises, however, the issues will be consolidated and brought to the Leon Circuit Court in Tallahassee. Roberts says he’s happy that so many lawyers and other observers will be monitoring how things go on Nov. 5. Clearly, Floridians of all political persuasions have a strong interest in avoiding another election debacle that once again turns their state into a laughingstock. “A lot of people observing this election is a good thing,” he says. But DeHaven-Smith says the intense scrutiny could backfire. With poll-watchers on top of poll-watchers, he says, the election is more likely to end up in court. “Elections are always messy but usually nobody sees it,” he says. “At the very least you’ll get reports of systemic voting problems that will raise doubts about whoever wins.”

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