John Dean: The Coming Post-Election Chaos
This next presidential election, on November 2, may be followed by post-election chaos unlike any we've ever known
Look at the swirling, ugly currents currently at work in this conspicuously close race. There is Republicans' history of going negative to win elections. There is Karl Rove's disposition to challenge close elections in post-election brawls. And there is Democrats' (and others) new unwillingness to roll over, as was done in 2000. Finally, look at the fact that a half-dozen lawsuits are in the works in the key states and more are being developed.
This is a climate for trouble. A storm warning is appropriate. In the end, attorneys and legal strategy could prove as important, if not more so, to the outcome of this election as the traditional political strategists and strategy.
Let's go over each factor that spells trouble - and see how they may combine.
A GOP Disposition For Nasty Campaigns
Before this year's race, the 1988 presidential race between George H. W. Bush and Michael Dukakis was well-known as the most foul of modern campaigns. The Bush campaign used Willie Horton to smear their way to the White House - with Lee Atwater playing the hardest of hardball.
Horton was a convicted murderer. Massachusetts Governor Dukakis gave him a prison furlough. Once furloughed, Horton held a white Maryland couple hostage for twelve hours, raping the woman and stabbing the man. By using these facts - and Horton's mug shot - in a heavy-handed negative advertisement, Atwater turned the election for Bush. As a Southerner, especially, he must have understood how the ad catered to racial prejudice.
In the 2000 Republican primary race, George W. Bush used similar tactics against Senator John McCain. That's no surprise: Bush's political strategist Karl Rove, and Bush himself, were protégées' and admirers of Lee Atwater. To my knowledge, all of Rove's campaigns have accentuated the negative - often dwelling exclusively on nasty attacks. This one is no exception.
Thus, if Bush narrowly prevails on Election Day, the Democrats are likely to be in a less than congenial mood - and especially likely to go to court. And there will doubtless be fodder for litigation, given the GOP's propensity to try to disqualify votes and voters.
The GOP's Campaign Tactic Of Attempting to Disqualify Votes And Voters
In 1986, former Assistant United States Attorney James Brosnahan (today a noted San Francisco trial attorney) testified - based on an investigation the Justice Department had dispatched him to conduct - that as a young Phoenix attorney, Justice William Rehnquist had been part of conservative Republicans' 1962 efforts to disqualify black and Hispanic voters who showed up to vote. Brosnahan's testimony was supported by no less than fourteen additional witnesses. Rehnquist nevertheless became Chief Justice - thanks to the continued support of conservative Republicans.
During the 1964 Goldwater versus Johnson race, when I first heard of such tactics, I was appalled to hear friends bragging about excluding Johnson supporters from voting. Later, when I found myself working at the Department of Justice for Richard Kleindienst, we discussed such tactics.
Kleindienst served as director of field operations for Goldwater in 1964, and for Nixon in 1968. Remarkably, Kleindienst confided that he had engaged in fewer dubious tactics in 1968 than in 1964. If such efforts were mounted by the Nixon campaign in 1972, when I had a good overview of what was going on, I am not aware of it.
Even Nixon had his limits, and he was more interested in wooing white Southerners into the Republican ranks. He did so, successfully, when such Southern Democratic stalwarts and pillars of bigotry and racism as Senators Strom Thrumond and Jesse Helms joined the GOP. They renewed the party's effort to disqualify voters who, and votes that, did not see the world as Republicans did. The racism became less blatant. After all, it had become a crime -- which called for new tactics. Yet the revised stratagems were (and remain) anything but subtle.
The 2000 presidential race in Florida is an excellent example. Reportedly, Bush's Florida victory came courtesy of 537 votes out of some six million. It's plain from this slim margin that the GOP's voter and vote disqualifying tactics cost Vice President Al Gore the presidency. (In the October 2004 issue of Vanity Fair, an excellent article entitled "The Path To Florida" explains how the Republicans nullified and disqualified literally hundreds of thousands of Florida votes.)
This lesson has not been lost on the Democrats - who are likely to refrain from conceding if they are losing in 2004 until all of the dubious disqualifications in closely-won swing states are sorted out....