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The 2000 presidential election between Democrat Al Gore and Republican George W. Bush was too close to call – literally. The razor-thin margin between them resulted in a lengthy and protracted recount process and a legal challenge that was eventually decided by the Supreme Court in favor of Bush, over a month after the election.
Fast forward to tomorrow, Election Day 2012. With both candidates running a dead heat in many key states, the winner will most likely be by a nose, if that much. Could we be in for another legal battle? That depends on the “margin of litigation” – the number of outstanding votes, versus the number that separate Barack Obama and Mitt Romney, once the smoke clears and all votes are in.
Campaign lawyers on both sides are determined not to miss a trick; they’ve deployed an army of eagle-eyed operatives to monitor the polls and send up a flare should there be any hanky-panky. What will they be watching for? Any “acts of sabotage” – misplaced ballots, misdirected voters, discrimination or other improprieties. But the missteps may not be intentional, either - a state-by-state patchwork of confusing voting laws, coupled with inexperienced poll workers, won’t help matters.
Party officials aren’t the only ones concerned - the Justice Department has announced that they’ll have nearly 800 federal personnel on the watch in 23 states, including here in California in Riverside and Alameda counties. All indications are that this presidential race will be historically close.
Will the winner be decided for good once the polls close on Tuesday? Or will the loser cry foul and send the lawyers into battle?
Steve Huefner, professor of law, senior fellow, election law at Ohio State University’s Moritz College of Law