Teams of lawyers for Obama, Romney get ready for Election Day

Chris Mondics, Inquirer Staff Writer
Posted: Monday, November 5, 2012, 5:24 AM

For months, President Obama and Mitt Romney have been waging full-blown political combat. But all the while, they've fought a little-noticed shadow contest that could have as much bearing on the race as media buys and debates.

Come Election Day, both sides plan to deploy thousands of lawyers to guard election procedures in key swing states such as Pennsylvania, Ohio, Colorado, and Virginia, where polls have been tightening and both campaigns have unleashed an avalanche of late advertising.

In a reprise of the legal battle over the contested presidential election of 2000, the campaigns have drawn up plans for litigating the result in cases where a razor-thin state vote might be contested.

"They are all lawyered up, absolutely," says election law expert Richard Hasen, a law professor at the University of California, Irvine. "They have teams everywhere."

To project an aura of confidence as well as prevent disclosure of confidential litigation strategies, both parties have sought to play down such efforts.

But each campaign has been working for months to assemble teams of volunteer lawyers to help monitor Election Day activities and to descend on voting districts after the race in cases where the results are in dispute - either to challenge the final tally or to defend it.

"We will have a Democratic voter-protection program in place in Pennsylvania this year," says John P. Lavelle Jr., the Obama campaign's top lawyer in Pennsylvania and a litigator with the Philadelphia law firm Morgan Lewis & Bockius.

Bill Crocker, a lawyer in Austin, Texas, who is general counsel for the National Republican Committee, said the party's legal team was gaming out multiple strategies for the day after the election.

"This election is so hard to predict, we are looking at possibilities rather than probabilities," said Crocker, a transaction lawyer. "We are trying to prepare for all of the possibilities, including the possibility that either Romney or Obama will have such a substantial lead that a challenge won't make sense."

There are a handful of lawyers nationally who have made their careers representing parties and political candidates in election disputes.

Robert Bauer, former White House counsel for Obama, is now the top lawyer for his reelection campaign; Ben Ginsberg, a University of Pennsylvania law school graduate who helped lead efforts on behalf of President George W. Bush in the Florida recount of 2000 heads Romney's legal team this year.

But most of the legal foot soldiers are volunteers.

"It's exciting to be part of a presidential campaign," Hasen said. "Most of these lawyers are true believers. They are strong Republicans or strong Democrats and they want to help out."

The incentive for this year's legal maneuvering is the disputed 2000 presidential race, which came down to a 537-vote margin in Florida.

Teams of lawyers from across the country descended on the state as lawyers challenged the legitimacy of ballot procedures in Palm Beach County, among other jurisdictions. They took the dispute all the way to the Supreme Court.

That election left hard feelings, deepened partisan divisions, and unleashed a national campaign to improve voting procedures. Since then, localities across the country have deployed new voting technologies that election-law experts like Hasen say greatly improved reliability.

Still, Hasen said, parties and candidates are suing one another more than ever. Since 2000, according to him, election-related lawsuits have increased nearly 2.5 times, from 96 cases to 239 last year.

"Things have become much more politicized," said Hasen, author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. "Election lawsuits have become part of the parties' political strategies."

Typically, parties begin mounting their legal defense long before an election. Mark Aronchick, a Democratic lawyer and partner at the Center City firm Hangley Aronchick Segal Pudlin & Schiller, said the focus before an election typically is on process issues such as absentee-ballot procedures.

Disputes over such issues can become highly problematic after an election, he said.

A case in point, Aronchick said, was the notorious butterfly ballot - so named because it had candidates' names down two sides, with punch holes in the center - in Palm Beach County that became a focus of the legal battle over the results of the 2000 presidential race. The design of the ballot, which many voters found confusing, could have been flagged before the election, said Aronchick, who was part of the Democratic legal team in Florida.

In Pennsylvania, Republicans and Democrats battled for months over the state's voter-ID law, which Commonwealth Court Judge Robert E. Simpson Jr. blocked after concluding there wasn't enough time for voters who needed specially issued state identification to obtain it.

More prosaic perhaps, but just as important, has been a long-running effort by Republican lawyers in Philadelphia to win appointment of hundreds of Republican election inspectors in districts where there had been none.

Linda Kerns, a Center City lawyer who volunteers for the state Republican Party, said the aim was to be sure that, from her party's vantage at least, the process was beyond reproach.

"You need eyes and ears from both parties to make sure the law is being followed," she said.

Contact Chris Mondics at 215-854-5957 or cmondics@phillynews.com.

Teams of lawyers for Obama, Romney get ready for Election Day