The Democratic political-legal strategy for November 2 has become increasingly clear in recent weeks. File as many lawsuits as possible in the run-up to the voting to create as much chaos around election law and procedures as possible. Including the suits to keep Ralph Nader off the ballot — for which Democratic lawyers display a newfound appreciation for the niceties of election law — there had roughly been 40 suits filed as of Friday, with more coming every day. In the ensuing confusion, Democrats will then shout after the election "count all the ballots," even those that have been cast in dubious circumstances.
The nub of the likely Democratic strategy is the so-called "provisional ballot." The 2002 Help America Vote Act (HAVA) requires that any voter whose registration is uncertain, or who is unregistered, can still cast a ballot "provisionally." Once the polls close, the voter's name is checked against public records to ensure its eligibility, and then his vote is added to the relevant candidate's tally. In theory, it is a sensible idea, giving a voter who is the victim of some bureaucratic snafu the chance to vote. But the Democrats hope to turn the intention of the law on its head. Provisional ballots are presumed unlawful unless demonstrated otherwise. Remember: These "provisional" votes wouldn't have been considered valid in 2000. Many of them surely should be excluded this year, but Democrats will create pressure to count them all no matter what.
Given the bogus registrations that have already been exposed by local news reports in places like Colorado, it is not hard to see the potential for fraud. If Democratic operatives have kept track of registrations, including bogus ones, it is possible for them to try to "vote" those bad registrations. And who can doubt that certain elements of the Democratic party would feel morally justified in stealing this election, as payback for Florida 2000? The looser the provisional-ballot rules, the easier it will be to manipulate the system.
Democrats filed suits in key battleground states appealing to judges to overturn state election law to loosen the rules around provisional balloting — with some initial success. In Ohio, Clinton-appointee James Carr, a federal district judge, ruled that provisional votes must be counted even if cast in the wrong precinct, so long as the voter was in the right county. "If even a single vote is lost due to the failure to implement HAVA, that loss alone is irreparable," quoth he, hyperbolically. In Michigan, too, a Democratic federal judge reversed existing state law by similarly ruling that provisional ballots do not have to be cast in the voter's precinct.
Over the weekend, the 6th U.S. Circuit Court of Appeals correctly struck down the Ohio ruling, and stayed the Michigan ruling, which will certainly soon be struck down too. HAVA clearly leaves it to state law how exactly to deal with provisional ballots. In any case, it makes no sense to allow people to vote outside their precincts. Election supervisors have been quoted saying as much. Elections are organized around precincts. A voter casting his ballot in the wrong precinct may be voting in the wrong school-board race or other local election. And wrong-precinct balloting raises the prospect of someone going from precinct to precinct merrily casting provisional ballots, in what Ohio's Republican secretary of state, Ken Blackwell, has called "stop and shop" voting.
Democrats will still play provisional balloting for all its worth. Former Clinton Justice Department official Eric Holder and others have given a glimpse of the coming rhetorical tack, when they say that if all the votes are counted, Kerry will win. This is a warm-up for the Democratic post-election mantra. The Associated Press reported last week that Kerry will declare victory on Election Day and begin naming a Cabinet, even if he is behind. This ploy will be an attempt to help Kerry hang on politically, while pressure is created to count all the provisional ballots and short-circuit efforts to determine their validity. There will be an overlay of racial politics in the Democratic advocacy, as they will argue that many of these provisional ballots belong to minorities "disenfranchised" by having to abide by the letter of election rules.
There is already the precedent of an election being won in a fight over provisional ballots. In Colorado two years ago, 2,000 or so provisional votes decided the result in the seventh congressional district, after 35 days of wrangling. In his excellent and timely new book, Stealing Elections, John Fund warns of provisional balloting, "We might have a Florida-style dispute spilling into the courts in several states where the presidential race is close, with one side calling for all provisional ballots to be tabulated ('Count Every Vote') and the other demanding that the law be scrupulously observed." In the event of a close Bush victory, this is obviously our future.
The American electoral system remains dismayingly open to fraud so long as the simple expedient of obliging everyone to present photo I.D. at polling stations is not adopted. In the meantime, the best protection against fraud is adhering to the rules established prior to the election and, pace the Democrats, only counting the votes that should count.