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October 29, 2002 9:00 a.m. The Coming Election-Lawsuit War The Democrats’ plan: First go to the polls, then to court.

emocrats complained loudly yesterday when Republicans criticized the record of former vice president Walter Mondale, who is set to replace the late Paul Wellstone on the senatorial ballot in Minnesota. "The family hasn't had a chance to grieve and lay the dead to rest, and my Republican friends are on national television criticizing a potential opponent," the state party chief told the Washington Post. "It's inappropriate."

Yet despite their demands for a period of mourning, Democratic operatives both in Minnesota and in Washington are busy preparing possible legal challenges should Mondale lose to Republican Norm Coleman.

On Monday, Minnesota state officials laid out the rules for absentee voting in the race. If absentee voters have already cast ballots for Coleman, they need do nothing more, according to the officials; those votes will count. But if absentee voters have already cast ballots for Wellstone, who was killed in a plane crash last Friday, those ballots will not be counted. The voters will, instead, have to request another ballot or show up at the polls on Election Day.

"That disenfranchises some people," says Tovah Ravitz-Meehan, communications director of the Democratic Senatorial Campaign Committee. "They got absentee ballots for a reason. They're out of the country, they're disabled. There are a whole bunch of issues about absentee ballots."

If the race is close, and Mondale is behind, Democrats will likely challenge the results on the absentee issue. According to the Associated Press, 93,000 people voted absentee in the 1998 mid-term elections in Minnesota. That's plenty of votes to form the basis of a challenge, and lawsuits are already being prepared that will argue that the last-minute ballot switch necessitated by Wellstone's death took away some voters' rights. "I will not be disenfranchised," one Democratic election judge who plans to file a lawsuit told the AP. "This ain't Florida."

Should that happen, Republicans plan to base their response on a careful reading of the law that governs late ballot changes. "The people of Minnesota had the foresight to pass very clear laws on the subject," says Alex Vogel, chief counsel of the National Republican Senatorial Committee. "This is a tragedy that nobody foresaw, but the law has served Minnesota well."

The law to which Vogel refers came into being not as the result of a candidate's death but of a scandal that tarnished the 1990 governor's race. In that year, Minnesota's incumbent governor, Rudy Perpich, faced a strong challenge from Republican Jon Grunseth. Less than two weeks before Election Day, Grunseth was rocked by allegations that several years earlier he had skinny-dipped with some of his daughter's teenage girlfriends. The scandal blew Grunseth out of the race; just days before the voting, Republicans had no candidate, and there was no clear law on how to deal with the problem. Nine days before the election, after the case went to the state Supreme Court, state auditor Arne Carlson, who had finished second in the gubernatorial primary, was placed on the general election ballot. He won, and served two terms.

In the aftermath of the election, the legislature passed specific laws laying out the process for changing ballots at the last minute. Now, if the race is close and Democrats lag behind, that law will likely face a court test.

Of course, Minnesota isn't the only place where election challenges might take place. Some extremely close races, like those in Missouri and South Dakota, might also end up in court. Some complicated races, like the one in Louisiana, might end up the same way. In each case, Democrats will be on the lookout for any opportunities to go to court. On Sunday, the New York Times reported that Democrats "plan to deploy 10,000 lawyers at polls in a dozen states with close Senate or House races."

Of course, Republicans are planning their own response, but the Democratic strategy strikes them as a bit much. "There aren't 10,000 election lawyers in America," says Alex Vogel. "Some of this is hyperbole."

Nevertheless, Democrats are quick to defend their approach. "There's a certain extra level of scrutiny, given what happened in Florida," says Tovah Ravitz-Meehan. "We have lawyers from every state ready to deal with it."

Of course, it's possible that most, if not all, of the Democrats' preparations will be for nothing. For a substantial challenge to take place, an election has to be very, very close in the first place. "You can't make something out of nothing," says veteran Washington election lawyer Jan Baran. "You've got to have a [difference of] a few hundred votes in a House race, or a thousand votes in a Senate race, and if you don't have that, it's going to be hard to gin up a political campaign or a legal case."

In the Senate, Baran adds, the last time there was a contentious race that went into a recount was the election of Democrat Mary Landrieu in Louisiana in 1996. "History can repeat itself," says Baran, "but experience tells us that it doesn't happen on a massive scale, and doesn't happen very often."

So why the 10,000 lawyers? One answer is that the Democrats' war talk has nothing to do with the conduct of the coming election but is instead designed to fire up party loyalists with images of the 2000 recount battle in Florida. Recently party chairman Terry McAuliffe released a statement saying, "Republicans are again trying to prevent people from voting at the polls...The tactics utilized are reprehensible and an affront to our democracy. Most worrisome is the possibility of this high level of disenfranchisement being extended to Election Day, and corrupting the integrity of the results."

That's where the lawyers come in. For the many Democrats who believe they lost the Florida recount not because George W. Bush won more votes but because their legal strategy fell short, next week's election is the time to resume the fight.