updated 11/4/2004 3:03:19 PM ET 2004-11-04T20:03:19

Although the jets bearing SWAT teams of Democratic lawyers stayed parked this year, courtrooms have become a permanent part of modern political campaigns.

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Lawyers and strategists for President Bush did board a pre-dawn flight to battleground Ohio, but they, like the legions of other lawyers recruited on both sides, soon found themselves with little to do.

After months of planning for recounts and court contests like those in Florida in 2000, the 2004 election ended with Sen. John Kerry’s frank assessment that a court fight would have been futile.

“I would not give up this fight if there was a chance that we would prevail,” Kerry said.
Kerry took the high road Wednesday, saying “the outcome should be decided by voters, not a protracted legal process.”

The legal process was already protracted, however, with dozens of pre-election lawsuits over election rules and allegedly unfair or underhanded political tactics.

When the election came down to tens of thousands of uncounted provisional, or backup ballots in make-or-break Ohio, lawyers on both sides already had filed lawsuits over how to cast and count those very ballots.

Legal challenges have always been an option for losing political candidates, and there are a few recounts in every election cycle, Eugene Volokh, a University of California, Los Angeles law professor.

Court fights were rare or little noticed in presidential races, but 2000 changed that, Volokh said. “We are just more likely to go to litigation now than we were.”

Democrats had thousands of lawyers on the ground in Ohio this year, and thousands more in Florida and other states seen as likely sites for another contested election. The Democratic Party recruited what it called SWAT teams of top attorneys specially trained to swoop into one state or several at the last minute.

Republicans countered with nearly equal numbers of lawyers, and a strategy to use the election reform law passed after the Florida debacle to argue for strict standards for evaluating provisional ballots and registering new voters this year.

Unresolved questions about provisional ballots, new for much of the country in 2004, are only one reason Republicans and Democrats probably won’t let down their legal guard now, election law specialists said.

“We can expect organized legal efforts for both parties next time around,” and plenty of ammunition for the lawyers in the form of mechanical, structural or other problems with the voting process, said Ohio State University law professor Dan Tokaji.

“We dodged a bullet this time,” because the vote was not close enough to matter, agreed Loyola Law School professor Rick Hasen. “The next campaign will have armies of lawyers unless we make fundamental changes to our politicized election system.”

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