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Election 2000 redux?

Unlike last time, the legal battle has already begun

By Jeffrey Toobin
CNN Senior Legal Analyst

Demostrators march in downtown Columbus, Ohio, on October 25, in a rally sponsored by the Ohio Voter Protection Coalition.
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NEW YORK (CNN) -- When the nation was convulsed by the 36-day battle to decide the 2000 election, there appeared to be one small consolation amid the chaos. Bad as the situation was, at least the Florida recount, and the legal battle it spawned, was a once-in-a-lifetime occurrence. Surely it couldn't happen again.

How wrong we were. As Election Day 2004 arrives, the candidates -- and the nation -- are poised to continue a legal battle that has already begun.

The 2000 battle in Florida came as a surprise, and each side improvised to make its case in the courtrooms. This year, both sides have been jousting in court for weeks over such matters as voter registration, and it's clear they are just warming up. They are certainly ready to fight until well after all the votes have been cast.

Ironically, Congress' one attempt to deal with the legacy of 2000 may lead to the greatest legal fights in 2004. Two years ago, Congress passed the Help America Vote Act (HAVA). It sought to address some of the problems from the last election by imposing a new requirement on the states.

Now, any voter who is denied the chance to cast a vote at a polling place must be given the opportunity to cast a provisional ballot. Those paper ballots are to be collected and counted after the polls close Tuesday.

But Congress did not say how the states were to decide whether the votes cast by provisional ballot are valid. Some states already had provisional ballot laws, and thousands of those votes have been cast in the past. But states have varied widely in what percentage of provisional ballots ultimately are included in the final totals -- from 10 to 90 percent.

If one candidate is behind by fewer votes than the number of outstanding provisional ballots -- and that could happen in at least a few states -- the result of the state's vote probably will not be known for a few days at the earliest. And lawyers for both sides will surely fight over every single ballot -- a reminder of the infamous Florida chad wars of 2000.

But provisional ballots are only one potential legal battleground. Republicans have charged that Democrats and their supporters have used fraud to register voters who should not be allowed to cast ballots. Democrats said Republicans were trying to intimidate African-Americans from casting their votes.

Both sides will have thousands -- yes, thousands -- of lawyers on duty on Election Day. Expect some tense battles at polling places over who is legitimately registered and who isn't.

In contested battlegrounds like Ohio and Florida, legal conflict is likely to begin even before the polls close Tuesday. Look for Democratic lawyers running to courts to seek injunctions to stop the other side from challenging voters. And look for Republican attorneys asking judges to stop their opponents from condoning voter fraud. Indeed, the mere presence of so many lawyers pretty much guarantees trouble, if the candidates press the issue. Large groups of lawyers will always find reasons to fight.

A phrase likely to be on many lips on Election Day is "margin of litigation." How close does an election have to be before the loser decides not to surrender but to go to court instead?

The answer will depend, in part, on how many states are still close. The possibilities for legal controversy are so varied and numerous that a definitive result on Election Night, or even early the next morning, may well be unlikely.

For better or worse, it could be that what seemed impossible in 2000 -- a presidential election resolved by the Supreme Court -- may start to look almost routine by 2004.

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