The Democrats say they have 10,000 lawyers coast-to-coast to guarantee access to the polls, and here are three of them right now, thumbing their BlackBerrys, jabbing at cell phones, pacing the hallway outside Room 829 of the U.S. District Court.
Virginia Conlan Whitman — day job: one of the city's top trial lawyers — is awaiting a hearing on her bid to stop Republicans from challenging the eligibility of tens of thousands of voters before the polls open. She signed up to volunteer for the state Democratic Party's Voter Protection Litigation Unit. Sunday night, she picked up the phone and heard, "Are you available?" Less than 48 hours and more than a few pots of coffee later, her "Motion for a Temporary Restraining Order" — 16 pages — and her "Memorandum of Law in Support of Motion for a Temporary Restraining Order" — 21 pages — have joined the flood threatening to make Nov. 2 the most litigious election of our lifetime.
Phyllis Bossin is peering into a gold-embossed, cardinal-red copy of Page's Ohio Revised Code Annotated, Vol. 35, devoted entirely to elections. She is the Kerry campaign's counsel for southwest Ohio, including the city and surrounding Hamilton County. Asked if she is an expert in election law, the divorce lawyer smiles sardonically and says, "I am now!" In addition to Wednesday's hearings, and her own clients, she has to get ready for an evening session to train more than 200 other lawyers, who have offered to be available in the county on Election Day to deal with problems at the polls. "Sometime in the next few hours, I have to learn PowerPoint," she moans.
Daniel Hoffheimer, who specializes in antitrust and estate law, is the campaign's legal counsel for the entire state. He, too, has gained enough familiarity with the state's election code to pronounce it "fraught with ambiguities."
And look! Here comes a fourth lawyer! Jennifer Branch is with a civil rights firm, and for someone who was up until 4:30 this morning drafting her lawsuit, she looks pretty chipper. This newest filing also seeks a temporary restraining order to prevent Republicans from planting themselves at polling places and questioning voters next Tuesday. Her clients are well-known African American activists — Marian Spencer, an 84-year-old former vice mayor, and her husband, Donald. And they are not even Democrats, but Charterites, part of a progressive third party active in Cincinnati.
The lawyers ring the buzzer outside Room 829 and move inside to the anteroom of Judge Susan Dlott. They array themselves on the rose-and-gold couch and upholstered chairs, underneath a print depicting European Jews about to be loaded into boxcars, and wait some more. The Republican lawyers, and those representing the six county boards of elections, will not appear in person, only as voices floating out of the speakerphone, for a conference that will not be open to the public.
Everybody is eager for copies of the latest pleadings, and Dlott's assistant pleads for patience. "I have both copiers going full-blast," he says.
The buzzer rings again. In walks another federal judge, Edmund Sargus Jr. "I had the Nader case a couple weeks ago," says Sargus, in which he tossed the consumer advocate off the Ohio ballot.
Lawyered up
All across this contested state, which may have as many as 1 million newly registered voters, Republicans are charging Democrats with fraudulent registrations, and Democrats are charging the Republicans with attempts to suppress and intimidate voters, particularly in poor and urban neighborhoods. Everybody is lawyered up. "I have never seen such distrust of the process," Whitman says, and her filing reflects it. The GOP's 35,000 challenges, she wrote, are "a transparently partisan effort to affect the results on Election Day by disenfranchising registered voters based on unsubstantiated and manifestly biased allegations."
Branch's language is, if anything, more indignant, calling the "imposing array" of 3,600 planned challengers an attempt "to seize on an old Jim Crow-era law to prevent African Americans" from voting and predicting that "racial tension will rise."
Republican officials say such words are intended to create an atmosphere of righteous indignation and cause chaos. The party's challenges are legitimate, says a senior aide for the Bush campaign who asked to remain anonymous so he could talk frankly, citing news reports that found new voters like Michael Jackson and Mary Poppins on the rolls in Ohio. "And Mary Poppins is duly disqualified," he says, "because she is nonexistent, and she's a British citizen."
Nationwide, an Associated Press poll found that 69 percent of Democrats and 56 percent of Republicans fear they will awaken Wednesday to an unresolved election, with about half of those surveyed saying they expect the results to be challenged in court. To avert that, the popular vote will have to be, says Kenneth Blackwell, Ohio's Republican secretary of state, "outside the margin of litigation."
In Ohio, what might that be? The lawyers consider this, adding up, out loud, estimated provisional ballots and possible challenges and absentee ballots before throwing out numbers. "A half a million?" wonders Bossin.
After the conference call, Dlott, who was nominated to the bench by President Clinton, will rule in the Democrats' favor, effectively ending the plans to hold 17,000 hearings in the next few days challenging voters. She will then move on to the civil rights claim.
She will be in her offices past midnight, writing her ruling. But now, in her robes, Dlott pauses briefly in her reception room before rushing to her courtroom, where a criminal jury has returned with a verdict.
"Days like this," Dlott says, "I wish I were back in private practice."