All Lawyered Up and Ready To Go

This morning’s political buzz is interesting: the drumbeat of conservative commentary triumphantly concluding that the election is over with Barack Obama sure to be driven out of the White House like a whipped cur has not lost a bit of its volume. Yet state polls continue to show an Obama advantage in Ohio, and Romney is still campaigning in Virginia and Florida, states Republicans claimed they had put away a couple of weeks ago. Meanwhile, the national polls that were favoring Romney have evened up. And GOPers have to be fearing that the overwhelmingly positive initial perceptions of the Obama administration’s handling of Sandy could affect late deciders.

With just five days to go until the official event, it’s entirely possible that pre-election analysis will be entirely submerged in a sea of spin. But the possible outcome that has drawn the least attention as compared to its likelihood is Overtime. The most critical state, Ohio, is the one where partisan election administration, funky laws (e.g., the one providing a mandatory 10-day wait before provisional ballots can be counted), and the lead-pipe certainty of litigation combine to make a contested outcome very likely unless the winning candidate’s margin is decisive.

And who’s to say we couldn’t have a contested election in multiple states? Florida is still Florida, after all. And so long as no one concedes defeat, you could have multiple lawsuits in multiple states preventing (or challenging) certification of a winner–for weeks.

I doubt anyone remembering the endless waking nightmare (I literally woke up every morning wondering if I had dreamed the whole Florida mess, until I turned on the TV and saw it was still real) of 2000 would deny that the level of partisan polarization is many, many levels more intense today. The very precedent of 2000 ensures that both sides are heavily lawyered up for an unresolved election. How well will any of us handle this contingency? Will there be mass protests, violence, another Supreme Court intervention? Who knows?

Maybe I’m just influenced by stories my father told me of the Three Governors controversy in Georgia back in 1946-1947, when a constitutional glitch over what to do when a governor-elect died produced a wild and extended period of banana-republic maneuvering on the streets and in the courts, with members of the State Patrol picking sides and aspirants physically seizing control of the governor’s office. Or maybe I’m just furious that 2000 produced no better reforms that the sad and toothless Helping Americans Vote Act, and that we still have no national standards assuring the right to vote.

Quite possibly it Won’t Happen Here this time, but I sure wouldn’t bet on it. It would certainly take a very comfortable Obama win in all the key states to stop conservatives from challenging his right to serve another term, if only to help prepare themselves for another four years of destructive behavior.

Ed Kilgore

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.