“If one side doesn’t like what a certain secretary of state has done,” says Foley, “they could argue that it’s beyond the scope of the authority set forth in the [state’s] governing statute — or that the statute is inconsistent with HAVA in a certain way, or is inconsistent with the principle of due process or equal protection. HAVA is so new, and provisional voting under HAVA is so new, that, in intense litigation, almost any plausible argument is potentially in play.”
The last lost cause
Which brings us to the million-dollar question: exactly how close would the election need to be for McCain and the GOP to try to win it in the courts?
According to Jeffrey Toobin — who covered the Florida recount for the New Yorker and in his 2001 book Too Close to Call: The Thirty-Six Day Battle to Decide the 2000 Election (Random House) — there’d basically need to be a repeat of what transpired in 2000. “Even if you have a state where the outcome is unclear on Election Night, that state has to be one that keeps a candidate from going over 270 electoral votes,” says Toobin. “And the odds against that are extremely high.”
But couldn’t McCain seek to overturn narrow losses in multiple states? Unlikely, argues Foley. “Both as a matter of public relations and a matter of law, it becomes harder the more states you have to fight,” he says. “Let’s say Candidate X is down in four battleground states on Election Night and up in a fifth, and there are clouds over all of them due to the dust-up over ACORN. Are you really going to fight this tooth and nail in court until the end?”
There’s also what Hasen terms the “Margin of Litigation” to consider. In 2004, Hasen notes, John Kerry opted not to sue after losing Ohio by just 118,000 votes — despite the fact that, if Ohio had flipped from red to blue, it would have given him the presidency. “Kerry’s lawyers made the calculation that the election wasn’t litigable, which I think was the right calculation,” says Hasen. “Because even though there were problems, there weren’t enough problems to call that many ballots into doubt.
“I’m less worried now than I was in 2004,” Hasen continues. “In 2004, I expected the election to be very close; at this point, I don’t expect the election to be close, at least in the places that are going to matter. Under the latest scenarios, we may not even care who wins Ohio or Florida. From the point of view of election administration, that’s a gift from heaven.”
These are reassuring analyses — but taken collectively, they have one major weakness: they assume that McCain and the Republicans will act rationally if faced with defeat. In fact, there’s good reason to think that they won’t. First, consider the extent to which McCain’s personal and political history is marked by a dedication to fighting seemingly lost causes. His defining biographical experience was enduring five years as a prisoner of war in Vietnam. He secured the Republican nomination this cycle just a few months after his campaign was written off as dead. And if, on Election Night, he’s even able to ponder a scenario in which he wins the presidency through litigation, it’ll mean that he’s already defied predictions of an Obama landslide and made a remarkable comeback.