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VA-13 and WY-3. Senator Kerry seems to have a lock on 153 electoral votes in ten states and the District of Columbia: CA-55, CT-7, DE-3, HI-4, IL-21, MD-10, MA-12, NY-31, RI-4, VT-3 and DC-3.
Six states with 51 electoral votes tilt toward Bush: AR-6, CO-9, MO-11, NV-5, NC-15 and WV-5. But six states with 63 electoral votes lean toward Kerry: ME-3 (note that Maine apportions its four electoral votes, and one vote still appears to be up for grabs), MI-17, MN-10, NJ-15, OR-7 and WA-11.
Suppose all the tilting states indeed go in the direction in which they are tilting. That gives Bush/Cheney 227 electoral votes, and Kerry/Edwards 216 votes.
There are still eight true swing states. In total, they have 95 electoral votes: IA-7, FL-27, ME-1, NH-4, NM-5, OH-20, PA-21, and WI-10.
It is in these states that election 2004 will ultimately be resolved - either in the voting booths, or in the courts. And note that none of these states, alone - even Florida, with its 27 votes - will give either candidate a win.
That means we could see simultaneous litigation in a number of states - chosen either because the polling was especially close, or because there are significant numbers of vulnerable votes to try to disqualify. It will be recalled that the possibility for multi-state litigation arose in 2000, before Florida became the focus; it could easily become a reality in 2004.
An Election For Attorneys: Neither Side Will Budge If Litigation Begins
When I discussed this situation with several attorneys on both sides, I realized none are likely to back down. The Democrats intend to play hardball to win this time; the Republicans feel that Democrats aren't adhering to the letter of the law in registration efforts - and want to hold them to it.
It is impossible to get a complete count, but it appears that at least 10,000 - and possibly as many as 150,000 -- attorneys, paralegals and law students will be working as observers, or handling election problems, on November 2-- just in the swing states. They have been trained in the relevant state's election laws, and they will focus on the casting and counting of votes.
With so many legal minds looking for problems and such combative attitudes on both sides, litigation seems inevitable - especially if the November 2 tally is close. And if litigation starts, it won't stop soon: A game of litigation chicken -- testing who will fold first - seems likely, with each party bent on holding out.
The Nightmare Scenario: An Election Up in the Air For Months
It may be days or weeks, if not months, before we know the final results of this presidential election. And given the Republican control of the government, if Karl Rove is on the losing side, it could be years: He will take every issue (if he is losing) to its ultimate appeal in every state he can.
The cost of such litigation will be great - with the capital of citizens' trust in their government, and its election processes, sinking along with the nation's (if not the world') financial markets, which loathe uncertainty. After Bush v. Gore, is there any doubt how the high Court would resolve another round? This time, though, the Court, too, will pay more dearly. With persuasive power as its only source of authority, the Court's power will diminish as the American people's cynicism skyrockets.
It does not seem to trouble either Rove or Bush that they are moving us toward a Twenty-first Century civil war -- and that, once again, Southern conservatism is at its core. Only a miracle, it strikes me, can prevent this election from descending into post-election chaos. But given the alternatives, a miracle is what I am hoping for.
John W. Dean, a FindLaw columnist, is a former counsel to the president.
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