This year's legal brinksmanship is driven in large part by the closeness of the race and ambiguities in federal election reforms passed in the wake of the 2000 mess. But that doesn't necessarily mean that it's a one-time event. Sadly, there's reason to believe that a permanent change is instead taking place in American politics. Lawyers will no longer be merely marginal players who counsel candidates on arcane campaign finance laws, but key strategic advisers who try to change the rules of the electoral battlefield to favor their clients.
The inescapable truth is that candidates who are aggressively willing to litigate every phase of the voting process -- from absentee balloting before election day to the recounts afterwards -- can gain a clear edge over opponents. Political law experts interviewed by BusinessWeek estimated this advantage to be as high as one full percentage point. While that's not enough to lock up most races, it will tilt a lot more of them than you'd guess.
As a result, the legal genie has escaped the bottle. There will be much more pressure, in tight races, for politicians at all levels of government to exploit the tactical advantages that can be supplied by aggressive lawyers. In the wake of the Florida recount battle, "it is sort of accepted that people will bring a lawsuit after a close election," says Kenneth A. Gross, a political law partner at Skadden, Arps, Slate, Meagher & Flom LLP. "In the past, it was sort of taboo, like you were a sore loser."
The lawyering of American elections could bring vast changes to the political process -- just as the arrival of increased litigation permanently changed the health-care system and the workplace. Despite recent reforms, American elections still have an overall error rate of about 1% to 2%, according to Samuel Issacharoff, a specialist in campaign law at Columbia Law School. So if armies of attorneys start scrutinizing close races in search of problems, they'll find them.
That, in turn, means that lawyers will inevitably drive more races into the courts -- undermining faith in the integrity of the electoral process. Voting results will be postponed and winners will increasingly be announced with the bang of a gavel. "It will say to the people who vote that the system works so poorly you can't trust it," says R. Doug Lewis, executive director of the Election Center, a Houston nonprofit that studies voting reforms and trains election officials. "At some point, they may start saying to themselves: 'Why are we participating?"'
Because lawyers are expensive, money likely will become more crucial than ever in politics. Both George W. Bush and John Kerry have already built multi-million dollar war chests to pay for recount battles. Third-party candidates and others who can't afford to field large teams of attorneys will be disadvantaged.
Costs may also rise for thousands of counties across the country that administer the electoral process. When lawyers challenge their voting procedures, the solution will often be to throw more money at the problem by buying new machinery or hiring additional staff. That will pull funds away from other priorities, such as building schools or buying police cars.
Of course, this is not all bad. Elections in this country have long been underfunded. If the arrival of more lawyers means more new voting machines, that will be an improvement. But partisan attorneys are not interested in improving elections -- just in ensuring that their candidates win; as often as not, litigants will oppose reform. At the end of the day, the lawyers will probably just battle one another to a standstill, driving up costs and aggravation across the board while doing little to improve American democracy. By Mike France with Lorraine Woellert in Washington