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Vote Cases Go on Fast Legal Track

Law: Experts say Bush's challenge could soon land in the Supreme Court.


Although many fear that legal challenges in Florida could delay a result in the presidential race for many weeks, courts generally decide such election issues rapidly.

The Bush campaign's federal challenge of a hand count of Florida ballots could be "at the U.S. Supreme Court before the end of the week," said William Canfield, a Washington elections lawyer.

"We often litigate cases to conclusion in times that other lawyers barely get their cases filed," said San Francisco lawyer Joseph Remcho, an expert in constitutional and election law.

In a recent challenge of a California proposition, Remcho went directly to the California Supreme Court and won a ruling to remove the redistricting measure from the ballot.

Normally, a challenge of such a measure would take years. Because of the immediacy of the election, however, the case was resolved within seven weeks.

In many cases, state election laws bring quick results because they require challenges to be filed within specified periods. In California, for example, residents have only 20 days to challenge the proposed title of a measure or wording in a voter ballot before it goes to the printer.

A section of the state's Election Code even specifies a date when challenges of a presidential election must be resolved by the state courts.

"The action or appeal shall have priority over all other civil matters," says Election Code Section 16003.

Other states have similar laws, but even without them, courts generally try to expedite election challenges rapidly.

"It's a truncated system, and you get into court relatively fast," said Richard Fajardo, a voting rights lawyer.

Fraud Allegations Can Delay Outcomes

But there are exceptions, especially when voter fraud is alleged.

A dispute over the handling of absentee ballots in a Fresno County school board election in November 1991 was not resolved until June 1, 1993. A trial court had thrown out the election after finding fraud, but a Court of Appeal refused to set aside the results.

The California Supreme Court finally ordered a new election. "The widespread illegal voting practices that permeated this election," former Chief Justice Malcolm Lucas, wrote, "furnished sufficient, essentially uncontroverted circumstantial evidence" that illegal votes had affected the outcome.

"In voter fraud cases, the litigation ends up extremely drawn out," said California election lawyer Steven Lucas, who believes Democrats are wise to spend their time and efforts on a recount rather than contesting the confusing Palm Beach County ballots. "Election contests, as opposed to recounting, are incredibly time-consuming."

To show fraud or other illegalities, challengers must collect voluminous affidavits to cast doubt on the election result. And the vote margin must be narrow enough to show that without the fraud, a different result was likely.

"Fights can continue even after candidates are sworn in," said Washington elections lawyer Jan Baran.

He cited the case of the 1997 Miami mayoral election, that led to the swearing-in of one of the candidates. An appeals court in March 1998 voided all the absentee ballots and his opponent was declared the winner, Baran said.

Courts Don't Like to Overturn Results

In races for Congress or the California Legislature, the elected lawmakers decide who the winners are after recounts.

In a Stockton Assembly race 20 years ago, Republican Assemblyman Adrian Fondse was sworn in after he drew 18 more votes than his opponent, Patrick Johnston. A subsequent recount showed Johnston, now a state senator from Stockton, ahead by 35 votes.

Johnston showed up in the Assembly, and the Democratic-controlled house removed Fondse and replaced him with Johnston.

Such cases remain rare, and courts are particularly reluctant to overturn election results, experts said.

And when immediate resolution is needed, courts will drop everything else and staff and judges will work overtime to resolve a case, Remcho said.

"Courts are sometimes uncomfortable having to move faster than they are used to," the election lawyer said, "but the goal is to both do it right and do it quickly."

Doing it right can mean extending deadlines for recounts too, election lawyers said. "Courts certainly have the power to extend deadlines, and they have done it," said James Parrinello, an election law litigator in California.

Although appellate courts generally don't like to hear matters that have not first been reviewed by lower courts, election issues can move to the top court rapidly, particularly in a presidential election.

"If there is ever a case when they will do it," Remcho said, "this is the case."

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