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If you had expected to watch the vice presidential debate on Oct. 5 in a neutral setting where an objective post-debate debate would ensue, you would have been wise to stay away from Lakewood Theater in Dallas where “Lawyers for Kerry-Edwards” held a “debate-watch party.” Although the highly partisan crowd needed little warming up, it received some Bush-bashing from former Democratic Texas Supreme Court Justice Bob Gammage. “We owe [President] George [W.] Bush a debt of gratitude,” Gammage told the energized crowd of 100-plus attorneys. “He has done something I have never seen in my political life: He has united the Democratic Party.” He was preaching to the choir; this group of Democratic lawyers also was united. As they watched U.S. Sen. John Edwards (D-N.C.) and Republican Vice President Dick Cheney duke it out on a large movie screen that magnified every gesture and nuance, the crowd pounced on Cheney with a steady stream of collective heckling — as if he were actually there. Like-minded lawyers burst into applause for every Edwards retort and shouted at Cheney for every sideways sneer. Truth is, if Cheney had proposed rolling back tort reform, he still would have been booed. A good time — and much beer — was had by many. But Susan Hays, the Dallas County Democratic Party chairwoman and a solo practitioner, highlighted the real reason for the get-together. In her opening remarks, she urged those Texas attorneys to give their money to the Kerry-Edwards campaign’s General Election Legal and Accounting Compliance (GELAC) Fund, which is being amassed to defray legal expenses in the event of a recount. Besides giving money, she asked the lawyers to give of themselves: Fresh legal recruits were needed to travel, before the election, to one of 20 battleground states and join an army of other volunteer lawyers hell-bent on protecting the vote — for Democrats. Similar get-out-the-attorney drives are being held in 10 other Texas cities, with the hope that 1,000 Texas Democratic lawyers will enlist for legal service and go — at their own expense — to one of 10,000 contested precincts around the country. Arriving days before the election, they will receive a primer on a particular state’s election law — “Ballot Protection 101″ — says Hays, who co-chairs Dallas Lawyers for Kerry-Edwards with Dallas solo Barbara Saylers. The freshly educated will then report to local lawyers and organizers who will be on hand at contested precincts. “We will not have an attorney-client relationship with the campaign or represent it in court proceedings,” Saylers says. “We will help monitor the polls and watch for election law violations.” It might sound like overkill to Republicans who feel that lawyers getting a last-minute crash course in ballot protection will lack the legal know-how to be effective. But Democrats remind themselves of the Florida recount imbroglio. “We were out-lawyered and out-litigated in 2000,” Hays says. And, she alleges, “It cost us the White House.” The Democratic National Committee and the Kerry-Edwards campaign say they have put together an “unprecedented” Voter Protection Program, which includes recruiting 10,000 volunteer attorneys nationwide to monitor the polls on Election Day. “Top legal talent across the country” also have been engaged, according to a DNC press release. The volunteer lawyers will comprise what the DNC calls “legal SWAT teams,” which will have private jets at the ready to fly them to hotspots oozing electoral trouble, if that occurs. Already in place in 20 swing states are full-time Voter Protection Coordinators, most of them attorneys, who have been hired, among other reasons, to ensure a voter-friendly registration process, operational voting machines and understandable ballots. According to the DNC, VPCs already have been called on to assist in legal challenges alleging that some election officials are suppressing minority voting in some swing states by rigidly interpreting registration requirements, wrongfully enforcing new federal election law requirements and intimidating minority voters. Christine Iverson, a spokesperson for the Republican National Committee, says that Democratic allegations of voter suppression are baseless. In addition, she claims that Democrats can’t point to a single recent instance of voter intimidation. For Republicans, the defining election law issue is not voter suppression, but voter fraud. They want to ensure that only those who are lawfully registered to vote, actually vote — and just once. And don’t expect the Republicans to be run over by roving herds of Democratic attorneys. According to the RNC, Republicans have volunteer lawyers protecting the vote — for Republicans. According to the RNC, Republicans plan a more decentralized legal attack, allowing each state to gauge its own needs of volunteer attorney responses. The Associated Press reports that the Bush-Cheney campaign has targeted 30,000 precincts in 17 states as places needing added legal firepower. Come Election Day, local Republican lawyers will be on call and, where necessary, will monitor contentious precincts, standing toe-to-toe with their Democratic counterparts. With voter registration soaring, with new federal legislation (Public Law 107-252: Help America Vote Act of 2002) adding new rules to the mix — rules that might create confusion among some election officials — and with the electorate split as evenly as it is vehemently, lawyering may make the difference, as Democrats allege it did in 2000. For some of the Democratic attorneys viewing the vice presidential debate at Lakewood Theatre on Oct. 5, the prospect of watching that happen and doing nothing was too much to bear. That thought made them volunteer to leave their practices and families, and offer their help. “Our Dallas lawyers will be going to Florida,” Hays told the group, which seemed elated by the news. “We did not have lawyers on the ground in 2000. The Kerry-Edwards campaign is not going to let that happen again.” THE PLAN Unlike many of his fellow Democrats, Steve Bickerstaff, a professor at the University of Texas School of Law who specializes in election law, did not blame the 2000 presidential election loss on the U.S. Supreme Court’s opinion Bush v. Gore, then-Florida Secretary of State Katherine Harris, Florida Gov. Jeb Bush or any combination thereof. In law review articles and op-ed pieces, Bickerstaff contended that the Democrats had no one to blame but themselves. In 2000, both legal teams had top election-law specialists, Bickerstaff says. But he says that the Al Gore team underutilized its election lawyers and let political decisions drive their legal strategy in the wrong direction. Rather than press for a manual recount of all 67 counties in Florida, Bickerstaff says, which Democrats allege would have revealed a majority vote for Gore, the former vice president’s legal team only insisted on a recount in four counties. Rather than appear anti-military, Bickerstaff says, the Gore team avoided opposing Bush’s legal effort to count late-received absentee ballots. Bickerstaff alleges the ballots were invalid under Florida law. In the end, county canvassing boards decided that they should be counted under federal law. Those absentee ballots added a net of 739 votes; Bush won Florida by the official count of 537 votes, Bickerstaff notes. Bob Bauer, lead counsel for the DNC, consulted Bickerstaff when Bauer was formulating the Democratic legal strategy for 2004. “I told him that there was a need to get real election lawyers identified and on board early in case there is significant litigation that would affect the outcome of the election,” Bickerstaff says. Whether Bauer took Bickerstaff up on his recommendations, Bickerstaff doesn’t know. But after Kerry became his party’s candidate, according to The Wall Street Journal, Bauer teamed with Kerry campaign general counsel Marc Elias and started recruiting attorneys in 20 swing states to lead Democratic legal maneuvers in each state. Any missteps from the 2000 election aside, the Help America Vote Act of 2002 may cause further complications and litigation. Addressing the complaints of minorities in Florida and other states who claimed they were wrongfully disenfranchised in 2000, Congress mandated that individuals who “declare” they are registered to vote but are not on registration rolls be allowed to cast “provisional ballots.” If election officials later determine that the individuals are registered, their provisional ballot votes will count. Democrats have filed suits alleging voter suppression in pivotal states such as Missouri, Michigan, Florida and Ohio, where election officials are refusing to count provisional ballots if they are cast in the wrong precincts. According to Democrats, minorities are more likely to be confused about their proper precincts, because they are likely to move more frequently than non-minorities. Like many Republicans, Charles Sartain, a partner in Dallas’ Looper, Reed & McGraw who represents the Dallas County Republican Party, is puzzled by the Democrats’ allegations that election judges would suppress minority voting. “You have to look at who an election judge really is,” he says. “In Texas, if a precinct voted Democratic in the last gubernatorial election, that precinct would have a Democratic election judge. And minority precincts often vote Democratic. So if their guy is in charge, just who is doing all this suppressing?” Republicans also head to the courthouse when they feel ballot security is at stake. To protect against voter fraud in New Mexico, GOP lawyers argued that new voters who registered in voter drives should be required to show identification at the polls. On Sept. 28, in David Kunko, Chaves County Clerk, et al. v. New Mexico Public Interest Group Education Fund, Inc., et al. , the New Mexico Supreme Court disagreed. But concerns about ballot security remain part of the drumbeat of the RNC, whose press office provides a 10-page, state-by-state summary of recent voter fraud articles — some concerning Democratic-leaning organizations which allegedly double-registered some voters and forged the names of others. Although less up-to-date, the DNC press office offers a 9-page document titled “Chronology of GOP Intimidation of Minority Voters.” “If someone is a registered voter and votes in his own precinct and votes the right ballot, we [Republicans] have no problem with that,” Sartain says. “Texas law already permits voters to present at least six forms of identification [including current copies of utility bills, bank statements and official government mail sent to the voter] at the polling place to comply with the Help America Vote Act. How low does the bar have to go?” To address Republican fears of voter fraud and Democratic fears of voter intimidation, RNC chairman Ed Gillespie wrote DNC chairman Terry McAuliffe and proposed that each side agree to place a volunteer — a lawyer or someone else — in precincts which might be problematic on Election Day. A member of the media also would be on these bipartisan teams to report on alleged election law violations, Gillespie proposed. The DNC rejected the idea as an empty public relations ploy. ACTIVIST IN TRAINING Although Sartain doubts that 10,000 Democratic lawyers will “take days off from their practices” and head to the uncertain terrain of the presidential battleground, he’s never met Jeffrey Simon. Simon attended the vice presidential debate-watch party at Lakewood Theatre on Oct. 5, but he already had decided to enlist in Kerry’s volunteer army of lawyers. Before the 2000 election, he never had been active in a political campaign, never had knocked on doors or hammered in yard signs. But his outrage over Gore’s loss fueled his activism, he says. “My political activism is based on my belief as a lawyer that every vote needs to be accurately counted and the people who are registered to vote, get to vote,” he says. Although this is the first time Simon has answered the call to activism for a candidate, seeds of political advocacy took root when he lobbied the state Legislature and U.S. Congress on the issue of tort reform. A partner in Dallas’ Waters & Kraus, which handles toxic-tort cases, Simon testified against House Bill 4 during the 2003 Texas legislative session. Representing clients who suffer from mesothelioma, the type of cancer that develops in people who inhale asbestos particles, he also helped fight congressional attempts to limit damages awarded to asbestos victims. The Texas bill passed; the federal bill didn’t. Three months ago, he joined the executive committee of Dallas Lawyers for Kerry-Edwards. “The campaign has lots of avenues to raise money,” he says. “But what really struck me as most compelling was using my legal training toward assuring a fair election.” Simon has yet to receive his marching orders, but, on Oct. 29, he and other Dallas lawyers will travel to Florida, learn the basics of Florida’s election law and put their legal skills into play. “Lawyers, by training, know how to spot issues, interview witnesses and gather information that may qualify as evidence in court,” Hays says. “An errant election judge who is not following the law may back down a whole lot faster if the person pointing it out to him says, “I am a lawyer, and here is the law that says you can’t do this.” If Florida law is similar to Texas law, volunteer attorneys will be unable to poll-watch because they are not residents of the counties in which the polling places are located, Hays says. Although there is just so much volunteer lawyers can do, they will train local poll-watchers to identify election law violations and will help investigate any problems that they witness. And if problems arise, they can alert the Kerry-Edwards campaign’s legal team, which can pursue whatever remedy it deems appropriate. And what if there is a reprise of the Florida recount and the November election isn’t decided until December? “Assuming I can satisfy my obligations to my clients,” Simon says, “I intend to stay as long as it takes to make sure that the person who legitimately gets the most votes to carry the Electoral College becomes the next president. If that means George Bush, so be it.”

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