Kerry Spot    [ jim geraghty reporting ]
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Eric Holder, a former Clinton Justice Department official who is now on the Democratic party's "Election Task Force," made a remarkable statement in a recent appearance on Fox News Sunday.

Discussing a Democratic National Committee memo calling for local party members to complain "preemptively" about voter intimidation, Holder said, "If every vote is allowed to be cast, and if every vote is counted, John Kerry will be president within a day of that election."

After his comment spurred some laughter, Fox News Sunday host Chris Wallace said, "Well, I don't know how you can guarantee that." But Holder just responded, "You heard it right here. If every vote is allowed to be cast and every vote is counted, John Kerry will be president."

This smash-mouth mentality — if Kerry loses, that fact alone is prima-facie evidence that Bush stole the election — is what the Kerry campaign and affiliated Democrats bring to the seemingly inevitable post-election-day fight. The Kerry campaign is pounding its chest, boasting that any Republican advantage in the actual votes cast is nothing compared to the Democrats' ability to find sympathetic judges and the rulings they seek.

The DNC claims it will deploy 10,000 lawyers to battleground states to watch for irregularities. They brag about five legal "SWAT teams" ready to fly to any quintet of states where recounts are warranted.

The Bush campaign and the RNC contend they are every bit as prepped and primed, but are much quieter about their recount preparations. A Republican official familiar with the Bush-Cheney campaign's legal strategies agreed to talk to National Review Online about it, provided that he not be named.

"We don't publicize our efforts," the official said. "We have huge numbers of lawyers ready to defend the rule of law and to make sure all of the ballots are counted correctly, but I don't think you'll see us talking about it. We're more organized."

One lawyer for the campaign confirms that Team Bush "is getting lawyers from all over the country to be prepared to spend the days leading up to and including election day to deal with election irregularities."

Republicans have revealed that they plan to have "special monitors" in 30,000 voting precincts in the swing states.

Using Nader — and the Military

The Bush-Cheney campaign's general counsel, Tom Josefiak, and campaign manager Ken Mehlman said in a conference call with reporters that "in target states...Democrats, led by the Kerry campaign, have waited until the last minute" to file anti-Nader lawsuits. "The effect of this litigation has been to prevent state and local elections officials from printing and mailing ballots overseas," he said. (Of course, military ballots were the one group of ballots that the Gore-Lieberman campaign seemed oddly uninterested in counting in 2000, and Time's Margaret Carlson, in reference to Florida absentee ballots from military personnel claiming residency in the state without an income tax said, "we will have possibly a bunch of tax dodgers deciding the election.")

A poll in mid-October revealed that Democrats have every bit as much incentive to suppress the military vote. Bush received a response of favorable from 69 percent of military personnel polled, compared with 29 percent for Kerry. The poll also found that 94 percent of the military sample intends to vote in the presidential election.

Florida and certain counties in Colorado had made special provisions for an extension of time for overseas military voters to send in their ballots. Unless other jurisdictions make similar provisions, he said, "There won't be a sufficient window for the ballots to be filled out overseas and returned."

States and localities have taken a variety of steps to make sure the men and women in uniform get to participate in democracy while they're protecting democracy. For example, a San Antonio initiative with the U.S. Postal Service is set to bundle up and get all overseas ballots to the ports within a single day. New laws make it easier for the military ballots to be returned once they are marked. Voters living in overseas areas, danger zones, and hostile-fire zones have the ability to fax their ballots back to Bexar County elections office.
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Illinois election officials have ruled that military personnel and Illinois voters overseas be given until a day before the election to mail off their absentee ballots, no longer requiring the ballots to arrive by election day. This year, ballots postmarked by Nov. 1 and received within 14 days of the election can be counted. Fifteen other states and the District of Columbia allow absentee ballots to be counted if they are postmarked on or before election day but received up to 15 days after the election.

However, Knight Ridder and other news agencies in Iraq are already publishing anecdotal accounts from soldiers who applied to their local elections boards for absentee ballots months ago and still haven't received them.

All Political Fraud Is Local?

"There's always a fear of funny business, but [we] have to rely on the good intentions of election officials and keep in mind that they're going to be monitored by lawyers on both sides," the Bush official said.

Of course, anyone who remembers the ridiculous judicial decisions, where each campaign simply looked for a judge who would rule in their favor. But the Bush campaign seems oddly calm about activist judges and partisan state supreme courts trying to decide the election.

"The 37 days in Florida we had in 2000 are now being played out before the election," the Republican official said. "The Democrats are filing suits preemptively, and you're clearly seeing forum-shopping taking place. The good news is they just keep filing and keep filing, because they've lost a bunch, because the Democrats' claims are just so baseless. Even the Florida supreme court didn't side with them."

The official was referring to the Florida supreme court's Monday ruling that voters who cast a "provisional ballot" must cast it in the right precinct in order for the vote to be counted.

The unanimous ruling was a substantial victory for Gov. Jeb Bush, Secretary of State Glenda Hood, and election supervisors across the state, who won't have to make a major change to the state's voting system days before the Nov. 2 election.

What could be at the center of many disputes are these "provisional ballots" — ones given to voters who aren't on the rolls, but who claim they should be. The decision of whether a voter was mistakenly left off the voter rolls would be resolved after election day by checking registration, residence, etc.

Elliot Mincburg, legal director of People for the American Way, a left-wing group ready to file election lawsuits, has already called provisional ballots "the hanging chads of 2004." But this is likely to be the election-lawsuit equivalent of urban combat, a slow slog going ballot by ballot, ultimately resolved by the binary decision of whether a voter is on the registered rolls or not.

Like the Sunshine State, Missouri, Michigan, and Ohio have ruled that "provisional ballots" cast in the wrong precinct are not to be counted.

Similarly, Bush campaign legal minds and Republican lawyers are not terribly worried about complaints about voting machines, no matter how much Paul Krugman complains or left-wing groups file last minute lawsuits attempting to ban the use of electronic voting machines.

"Everyone was outraged in 2000 that so many states used paper ballots, which were so open to human error," the GOP official said. "They said we had to eliminate this and do it electronically.

"Now everyone's unhappy about no paper ballots. But machines are far more objective, and there's less opportunity for mischief, despite what Krugman would have you believe. We want the rule of law to be upheld and those machines have been approved as the mechanism by which to tabulate the votes."

This official also wonders if the five-state recount threat of the Democrats is that likely.

"The reality is that you start with the premise that there are target states, and then there are the target states in play, and that is trumped by the smaller universe of the target states in play where there is actually a possibility of a recount — Florida, Ohio, Nevada, New Mexico, and a few others maybe. But if you look at where they're filing their lawsuits, the reality is just Florida and Ohio."

While there is much wailing and anxiety about a Florida rerun coast to coast, for the Democrats to really get any serious legal challenge going, they will need a big pile of disputed and rejected ballots that are likely to be votes for Kerry. The other key ingredient will be a close enough score in the electoral college for these disputed states to make a difference. The American people, no fans of Florida, are unlikely to tolerate a lengthy legal ordeal just to see whether one candidate managed to cover the point spread.

One wonders whether reality will comply with Democratic fantasies of the first candidate to sue his way to the Oval Office.