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Nearly a month ago, Georgia’s Republican Party signaled that its lawyers may challenge any Democratic victories in Tuesday’s elections. In an Oct. 11 letter to the Georgia secretary of state, the state Republican Party’s general counsel, J. Randolph Evans, lodged a formal protest of the Nov. 5 election because absentee ballots were mailed late, in violation of state law. Evans is one of a battalion of litigators enlisted by the major parties this year to place the election under a legal microscope, even before the polls open. Four suits already have been filed in federal court in Atlanta, either alleging irregularities or seeking to halt or void elections in individual races. And nationwide, U.S. Attorney General John D. Ashcroft has mandated that federal prosecutors and the FBI closely monitor elections in their districts. In the Northern District of Georgia, at least two prosecutors will man the phones until the polls close and screen complaints of voting irregularities. In the Southern District, U.S. Attorney Richard S. Thompson is posting an Assistant U.S. Attorney in the Superior Court clerk’s office at each of the 47 county courthouses in his district until 5 p.m. on Tuesday. 2000′S LEGACY Such is the legacy of the 2000 presidential election, which hung in the balance for a month while the courts decided how and which votes were to be recounted in Florida. This year, with Republicans only one seat shy of controlling the U.S. Senate, every vote is now potential fodder for litigation. In Georgia, both parties have lawyered up more than at any time in history. The Georgia Democratic Party’s motto this year is “Remember Florida,” said state Democratic Party Chairman Calvin Smyre. “We feel like the [2000 presidential] election slipped away from us based on voting irregularities.” Republican Evans counters that Georgia Democrats, led by lawyer-Gov. Roy E. Barnes, have stacked the deck in their favor. The Democrats “are very adept in maneuvering and using every legal resource in state government to perpetuate power,” said Evans. In Atlanta, federal judges already have entertained several requests for injunctions associated with Tuesday’s election. Thursday afternoon, former Georgia Attorney General Michael J. Bowers sought a temporary restraining order against WSB-TV, which had refused to air a campaign ad for Republican gubernatorial candidate Sonny Perdue. The station had claimed Perdue’s use of an 8- to 10-second video clip excerpted from WSB’s Oct. 27 gubernatorial debate was copyright infringement. WSB contended that no other TV station could run the ad because of its copyright on the debate. Bowers claimed that the video clip constituted “fair use” of the material. Bowers said he was waiting in U.S. District Judge Beverly B. Martin’s office while she read the complaint in chambers when WSB attorney Peter S. Canfield called to say the station had agreed to air Perdue’s ad. Perdue v. Cox, No. 1:02-cv-2969 (N.D. Ga. Oct. 31, 2002). Thursday afternoon, Bowers partner T. Joshua R. Archer appeared before U.S. District Judge Orinda D. Evans of the Northern District of Georgia to argue that DeKalb County’s two commission races should be stopped. Archer made that argument on behalf of DeKalb commissioner Jacqueline Scott, who was prevented from running for re-election this year after DeKalb legislators moved her voting precinct from her district last spring. Scott, a white Democrat, has sued state officials claiming that she was drawn out of her old district to make way for the election of a black candidate. Scott v. Taylor, 1:02-cv-1851 (N.D. Ga. Oct. 21, 2002). Two other election suits were filed in federal court earlier this month. On Oct. 4, five DeKalb voters sued the secretary of state, 4th U.S. Congressional District candidate Denise Majette and Georgia’s Democratic and Republican Parties, claiming that “malicious” and “illegal” Republican crossover voting for Majette during the August primary cost U.S. Rep. Cynthia McKinney the election. Osburn v. Cox, 1:02-cv-2721 (N.D. Ga. Oct. 4, 2002). On Oct. 10, Gary C. Harris, a Republican candidate for Rabun County chief magistrate, challenged a state law that places the names of candidates belonging to the governor’s political party first on the November ballot. Harris v. Cox, No. 1:02-cv-2778 (N.D. Ga. Oct. 10, 2002). As of press time Thursday, no injunctions had been granted in any of those cases. The next round of suits could come next week. Evans — a partner at Atlanta-based Arnall Golden Gregory and counsel to U.S. House Speaker J. Dennis Hastert, R-Ill. — said Georgia’s Republican Party has recruited 40 to 60 attorneys and more than 1,000 Republican poll watchers to monitor the state’s 3,000 polling places. The party’s Fair Elections Task Force will be organized into legal “SWAT teams” and posted across the state. Although in past years Republicans have had volunteer attorneys on call on Election Day, Evans said this year Republicans are seeking to quadruple their numbers for potential election litigation. “When you control the process, you don’t have to mount this kind of effort,” said Atlanta attorney Frank B. Strickland, a partner at Strickland Brockington Lewis and chairman of the Georgia chapter of the Republican National Lawyers Association. “But just because a race is close does not mean there is an irregularity. The role of lawyers in the process, and other volunteers, is to ensure that all votes are counted correctly.” To that end, Republicans also are establishing a 24-hour Election Day hotline that will be manned by volunteer attorneys to take calls from poll watchers or voters who identify problems at the polls, Evans said. Strickland partner Anne Ware Lewis, the state Republican Party’s assistant general counsel today begins training volunteer lawyers on how to prepare for election litigation. “I don’t know how many teams there are going to be,” Lewis said. On Election Day, she continued, “Our hope is to be able to place teams in the larger cities and then have people who are willing to go out into rural areas.” Earlier this week, Strickland began training volunteer poll watchers to identify potential problems and then communicate quickly with the legal SWAT teams. Strickland said his volunteers are especially on the lookout for problems with the state’s new computerized voting machines. “Anytime you change a voting procedure, it usually generates problems. No election system is perfect. The previous one was not. I’m sure this one won’t be.” PROBLEMS WITH ABSENTEE BALLOTS One problem the Republicans already are threatening to litigate is the state’s tardy distribution and inaccurate printing of some absentee ballots. Evans’ October letter officially protested the secretary of state’s failure to mail absentee ballots 45 days before the general election on Nov. 5. While citing the late mailing as a violation of state election laws, Evans sought no redress or corrective action. The late mailing of the ballots was a consequence of the legal battle over redistricting. Because the Georgia attorney general was defending the validity of the state’s redistricting in U.S. District Court in Washington, Georgia’s primary was pushed back from July to August and the runoffs to Sept. 10. As a result, only printer’s proofs of the ballots were delivered to county election officials by Sept. 20, the deadline for mailing them under Georgia law. Some counties copied the proofs and sent them to absentee voters. Lewis said absentee ballots requested by overseas military personnel were mailed out as much as 20 days late while the deadline for returning the ballots by the time the polls close on Election Day was not changed. Since some of those ballots were copied from printer’s proofs, county election officials will have to transfer those votes by hand to ballots that can be scanned by the new computers. “At worst it [the delay] was a strategy,” Lewis said. “At best it was a failure to recognize the problems that would result from changing all the [primary] dates. … It was incumbent on the secretary of state to recognize that problem.” Kara Sinkule, spokeswoman for Secretary of State Cathy Cox, said that when the General Assembly changed the primary date, the secretary of state did point out that the distribution of absentee ballots probably would run afoul of state election laws that require military ballots to be mailed 45 days before Election Day. “It’s certainly something that we saw coming,” she said. But Sinkule said that even though the state missed its own deadline, some states have only a 30-day window in which to mail military ballots — the minimum required by the U.S. Defense Department. Georgia’s counties, she said, did meet that deadline. Sinkule acknowledged that on some of the ballot printer’s proofs, Republican candidates may have been omitted unintentionally. Some proofs also omitted propositions or local races. Sinkule said the errors were caught before the ballots were sent to absentee voters. “This could certainly end up in court,” Sinkule said. The Republicans “have already expressed, to some degree, their intention to do that.” Attorney Jeffrey O. Bramlett, a partner at Atlanta-based Bondurant, Mixson & Elmore who has done legal work for the state Democratic Party, suggested Republicans simply are attempting to politicize the secretary of state’s efforts to replace the state’s voting machines with computers. “This is obviously going to be the first time the voters are using this new equipment,” he said. “The other side would very much like to embarrass Cathy Cox and the people in state government who have really invested pretty heavily in trying to improve technology in Georgia. I expect one of the things they will say before the vote is counted is that we had problems with this election. There has never been an election where there weren’t problems.” DEMOCRAT DEFENSES READY The Republicans’ decision to galvanize its lawyers on Election Day has prompted Georgia Democrats to respond in kind. Since his primary defeat for U.S. Congress, former Georgia Democratic Party Chairman David J. Worley has been organizing Democratic legal teams to counter those of the Republicans. Worley, now of counsel at Jacobs, Slawsky & Barnett in Atlanta, said Democrats are concerned that Republicans may attempt to intimidate voters, particularly minority voters, in an effort to suppress turnout. Smyre said the involvement of federal prosecutors or FBI agents is “an intimidation factor. … We don’t know where they’re sending people. We’re told they’re targeting mostly African-American precincts.” The Republican Party has a history of using ballot security programs similar to the Republicans’ Fair Election Task Force to suppress voter turnout, he said. “They have said they have set up an Election Day SWAT team to go out around the state. We are concerned that will lead to voter intimidation. … We are preparing for any kind of questionable activity that may need a legal response.” David Balser, general counsel to the Georgia Democratic Party, promised the party will have attorneys “in every significant jurisdiction around the state ready to go into court on a minute’s notice if necessary if there are any irregularities.” The state party will deliver to the network of Democrat attorneys sample pleadings to use if a judge’s intervention is required to stop voting irregularities, Balser continued. “To the extent irregularities are reported and discovered, [lawyers] are on the ground to gather evidence and secure it, in the event an election challenge needs to be made.” Balser, a partner with McKenna Long & Aldridge, said that Democratic pollsters, unlike Republicans, have not found any races, including the U.S. Senate race, that may be too close to call. “I think the Republicans, if they’re planning on looking at every precinct, may be looking at different polls than I’ve been looking at,” he said. But, he acknowledged, Barnes “cares very much about maintaining a majority in the state House and the state Senate. I think he’s very interested in ensuring that Democratic candidates get elected wherever they can.”

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