Morning prayer for detainees in Camp 4 of the Guantanamo Bay Detention Facility (Zuma Press)

Ever since President Obama said in his speech at the National Archives that he believes there’s a category of people at Guantanamo who can’t be tried in criminal court or by military commission but are too dangerous to release, legal and national security experts have been vigorously debating just what kind of “preventive detention” scheme the president can or should embrace.

As TWI’s Spencer Ackerman wrote on Wednesday, many civil liberties groups adamantly oppose the idea of “preventive” or “indefinite” detention at all. Since Obama made his pronouncement in May, representatives from Human Rights Watch, the ACLU, Human Rights First, New York University’s Brennan Center for Justice, the Constitution Project and many others have argued strenuously against the idea.

Illustration by: Matt Mahurin

So when the Washington Post and ProPublica reported on Friday that the Obama administration is considering issuing an executive order setting out a long-term preventive detention authority, and that some civil liberties groups had actually encouraged such an order, many of those groups were stunned.

“Our position is that there is no category of individual who can’t be prosecuted,” said Jonathan Hafetz, an attorney with the ACLU’s National Security Project. “To say the president can order indefinite detention by executive order, that’s just what Bush did for the last eight years.”

Even conservative scholars have been arguing against the idea since the Post reported that the administration was considering an executive order. As former Bush administration lawyer and Harvard Law Professor Jack Goldsmith wrote with Brookings Institution scholar Benjamin Wittes in an op-ed in the Washington Post on Monday: “Obama, to put it bluntly, seems poised for a nearly wholesale adoption of the Bush administration’s unilateral approach to detention.”

Wittes and Goldsmith instead argue that any preventive, indefinite detention scheme should be debated, authorized and spelled out clearly by Congress. Otherwise, they say, it will face opposition and modification by the courts, which will ultimately undermine the president’s detention power, as happened during the Bush administration. “Over time, the judiciary grew impatient with ad hoc detention procedures that lacked clear and specific legislative authorization, and judges began imposing novel and increasingly demanding rules on the commander in chief’s traditionally broad powers to detain enemy soldiers during war,” they write. “Ironically, one of the biggest casualties of this misadventure was the executive authority the Bush administration held so dear. At least in detention policy, Bush left a weaker presidency than he inherited, one encumbered by unprecedented restrictions imposed by judges.” An act of Congress, then, would be a way of enhancing, rather than limiting, the executive power of indefinite detention.

And that’s where the debate now lies — between those that believe existing systems of detention under the laws of war and criminal prosecution are sufficient to handle current terrorist threats, and those who claim that the so-called “age of terrorism” demands a broader authority that Congress must create.

Although staunch civil libertarians oppose preventive detention altogether, many left-leaning lawyers would prefer an executive order issued by President Obama clarifying his authority to detain prisoners under the laws of war to an entirely new, broader system of preventive detention created by Congress, as Goldsmith and Wittes propose.

Perhaps most prominently, an influential group of military and criminal defense lawyers and academics on June 8 sent President Obama a letter urging him not to create a new system of long-term preventive detention, but to rely on the systems we already have — with modifications, if necessary.

“Our country can achieve its legitimate goals through existing laws which authorize the detention of those who should be detained in the fight against international terrorism,” says the letter, which has not been released publicly but was obtained by TWI. The letter is signed by eleven prominent lawyers, including Retired Rear Admirals Donald Guter and John Hutson of the Navy’s Judge Advocate General’s Corps; Abner Mikva, a former federal appellate court judge, University of Chicago law professor, White House counsel under President Bill Clinton and a mentor to President Obama; and Thomas Wilner, a corporate defense lawyer who’s represented Guantanamo detainees in some of the landmark cases decided by the U.S. Supreme Court.

“Longstanding law-of-war principles authorize the detention for the duration of armed hostilities of those who engage in armed conflict against the United States or its allies,” says the letter, adding: “Some modifications to the existing system may be warranted, but no new system is necessary.”

Although the letter doesn’t explicitly call for an executive order, that’s one obvious way such “modifications” could be made. Ken Gude at the Center for American Progress made a similar argument recently, supporting preventive detention of fighters captured in a combat zone during a military conflict, on the Center’s web site and in The Guardian. And in a memo written with Kate Martin, director of the Center for National Security Studies, the authors write that the “ambiguities” left by the Bush administration over who is detainable under the laws of war “compound the lack of fundamental fairness in treating suspected criminals as combatants and holding them without trial.” Given how the detention authority has been used over the past eight years, “the new administration should now reassert the traditional understanding of the limits of the law of war and reject the former administration’s effort to read the word “organization” in the AUMF [Authorization for the Use of Military Force] as effecting an unprecedented extension of the traditional understanding of the military’s extraordinary powers of detention during war.”

In an e-mail on Wednesday, Gude said that although he didn’t specifically propose an executive order to the administration, he supports the idea and opposes new legislation. Martin has said the same thing.

Even Georgetown law professor David Cole, ordinarily a staunch civil libertarian, has argued that the administration has such detention authority, calling it “an appropriate and necessary means of dealing with enemy fighters during wartime.”

Of course, there’s plenty of disagreement about who is an “enemy fighter” and how to define the “war on terror.”

The Supreme Court in Hamdi v. Rumsfeld affirmed that the executive can detain enemy fighters during wartime, but that case pertained directly only to the detention of Taliban fighters while the United States was at war with the Afghan government. Since then, the Bush administration and now the Obama administration has argued for much broader authority than that. In habeas corpus cases for Guantanamo detainees, the Obama Justice Department has argued it has “the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001″; “persons who harbored those responsible for those attacks; “and “persons who were part of, or substantially supported, Taliban or [al-Qaeda] forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.” Different judges have interpreted that authority slightly differently, and some haven’t accepted that the president’s authority reaches those providing “substantial support” to terrorist groups, but they all agree that the President has the authority to detain indefinitely those fighting a war with the United States.

An executive order, some argue, would further clarify the Obama administration’s position — and, potentially, limit its authority going forward.

Their primary aim, however, seems to be to prevent legislation that codifies a new, broader system of preventive detention based on “dangerousness”, as Goldsmith, Wittes, and Deputy Solicitor General Neal Katyal (before he was in the Obama administration) have promoted.

Wittes, in particular, a Brookings Institution scholar, last week proposed, with his colleague Colleen Peppard, model legislation that would create an entirely new system of preventive detention that’s not limited to the president’s authority under the laws of war. In his op-ed co-authored with Wittes on Monday, Goldsmith, who briefly headed the Justice Department’s Office of Legal Counsel under George W. Bush, appeared to endorse such a plan. (Goldsmith declined to be interviewed for this article.) Last Friday, NPR’s Ari Shapiro reported that the proposal is “already being discussed in the Obama administration.”

The idea is to create a system that allows the government to detain an individual who officials believe is dangerous and acting as an agent of an organization that is fighting the United States, yet against whom it does not have enough evidence, or the right kind of evidence, that would support a criminal prosecution. Instead of having to prove guilt “by a reasonable doubt,” which is the standard in criminal law, the government would need only prove “dangerousness” by a “preponderance of the evidence,” which is the standard of proof in civil cases. Evidence provided by intelligence officers based on hearsay, for example, would be admissible, even though it would not be allowed in a criminal proceeding. Coerced evidence, however, would not be admissible.

“It’s a lot of probablilistic human intelligence stuff that people use every day, including to target and even kill people, that U.S. courts choose not to admit,” Wittes said on Wednesday. “There are all sorts of people who you wouldn’t have a problem going to court and saying, ‘we can show this guy is dangerous. But if you force us to make a criminal case, we can’t do it. Either we don’t have enough evidence, or the proof we have, a lot of it won’t be admissible.’ ”

Civil liberties and criminal defense lawyers argue strenuously that such evidence is unreliable and therefore shouldn’t be used to deny a suspect their liberty, potentially forever. In Wittes’ proposal, the government could detain a suspect for up to 14 days without providing him a right to a lawyer or to challenge his detention. After that, the government would have to justify continued detention to a judge every six months. Wittes compares this sort of detention authority to the government’s authority to detain criminal defendants before trial, some illegal aliens, and mentally ill people who a court has deemed a danger to himself or others.

“The concept of ‘dangerousness’ is inherently somewhat speculative,” Wittes admitted. “By its nature it’s based on future activity. Imagined future activity,” he added. But “we do manage the concept of dangerousness” in these other situations. “It’s not ideal. You’d like a moral certainty as to whether or not someone is going to do something scary. As a practical matter you can’t do that.”

Gude and Martin, in their memo sent to the Obama administration’s Detainee Policy Task Force, “strongly oppose” such a plan. “While we strongly support the effort to prevent such individuals from engaging in future terrorist activities, experience demonstrates that sufficient intelligence and law enforcement tools exist to meet real national security requirements and disable such persons. Legislating a new legal framework for detaining such individuals would be unprecedented and unjustifiable as an application of the law of war. To the contrary, it would blur the important line between criminal and military spheres and undo decades of effort by the United States to encourage other countries to cabin properly the realm of military vis a vis civilian authority.”

David Golove, a Constitutional law professor at New York University, similarly calls the Wittes plan “extraordinarily problematic and dangerous.”

“One of the core features of liberal democracy is precisely that preventive detention is not allowed,” he said. “The struggle for constitutional liberty is in many ways a struggle against preventive detention.” The Wittes proposal “treats that whole problem incredibly cavalierly.” The wartime detention model, by contrast, has “deep historical roots,” he said. And detention of the the mentally ill or the accused in pretrial detention are “carved out exceptions based on very specific rationales. Every time we add a new one we’re breaking down the whole idea that preventive detention is problematic in a liberal country.”

To Wittes and some others, however, the terrorist attacks of September 11 demand just such a new exception. A preventive detention system “is the result of the unique nature of America’s conflict with transnational terrorist organizations and the limits of existing laws, both international and domestic, in responding to current threats,” he writes with Peppard in their paper, Designing Detention: A Model Law for Terrorist Incapacitation.

Whether such a system would be constitutional is another matter, and one that Wittes does not directly address in his proposal. “All of these issues are up for grabs in the courts, and both sides of the administrative detention debate can point to recent signals by the Supreme Court in Guantanamo cases to support their claims,” said Matthew Waxman, a law professor at Columbia University whose work Wittes cites for support in his paper.

It’s not clear where the Obama administration will come down in this debate, and administration officials have insisted that no decision has yet been made. On Monday, White House spokesman Robert Gibbs assured reporters that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people.” But he did not rule out reliance on a preventive detention system based on some other authority — which could be the laws of war, or an act of Congress.

A guard tower at the Guantanamo detention center. (defenselink.mil)

It was a blind quote hitting the civil-libertarian solar plexus. Bad enough that, as ProPublica’s Dafna Linzer and The Washington Post’s Peter Finn reported late on Friday afternoon, the Obama administration was readying an executive order for a system for preventive detention in terrorism cases. President Obama himself had indicated in a May speech at the National Archives that he wanted to seek legislation toward the same idea. But an administration official told the reporters that those same opponents of preventive detention had given the president cover to pursue it: “Civil liberties groups have encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order.”

Illustration by: Matt Mahurin

As it happens, White House officials sought to walk the story back, with officials saying that the administration wasn’t drafting an executive order and was unlikely to issue one, as press secretary Robert Gibbs said Monday. But representatives of civil liberties groups were still stunned to see the quote. At a meeting with the administration’s task force on detentions policy earlier this month, most of the major civil liberties groups explicitly urged the administration to instead either charge Guantanamo Bay detainees and future terrorism captives with crimes in federal court or release them. Now, with the prospect of a new administration creating a regimen for holding detainees for an unbounded period without facing charges — a major target for civil libertarian fights with the Bush administration — on the horizon, several groups that hailed Obama’s election are vowing to fight the proposal.

“Any continued policies of prolonged detention without trial of Guantanamo detainees simply fails to turn the page on the counterproductive policy of the Bush administration,” said Human Rights First’s Devon Chaffee, who attended the meeting with the task force. “We oppose any prolonged detention without trial beyond what is already authorized under the laws of war. If an individual committed acts of terrorism, they should be tried in our regular federal courts.”

On June 9, a task force empanelled by Obama’s January 22 executive order to recommend changes to U.S. detention policy for “violent extremists” invited civil liberties groups to the Justice Department for a meeting led by Army Col. Mark Martins, a former legal adviser to Gen. David Petraeus in Iraq. Representatives of Human Rights Watch, the ACLU, Human Rights First, New York University’s Brennan Center, the Constitution Project, Amnesty International, the Center for National Security Studies, the Open Society Institute and the National Association of Criminal Defense Lawyers spent about two hours making a case against preventive detention, as well as offering their perspectives on military commissions, the repatriation of Guantananamo detainees, and the detention facility at Afghanistan’s Bagram Air Field.

According to attendees, the meeting was respectful and solicitous. Task force members opted to listen to civil libertarian concerns far more than they chose to present their own views, offering the occasional hypothetical example to test the contention that federal civilian courts would be adequate to handle terrorism cases. “They were very thoughtful, engaging, reflective and genuinely interested in our input,” said one participant who declined to be identified. “I didn’t get the sense that they were just rubber-stamping, so they could say they met with human-rights groups.”

The meeting was designed to be a forum for a subsection of the task force to hear from the civil liberties organizations that have been distressed by emerging administration perspectives on detention since March, when the Justice Department filed a brief in federal court claiming authority to detain terrorism captives outside of the criminal justice system. “A very strong message given at that meeting was that the vast majority of the civil-liberties community oppose any form of prolonged preventive detention without trial,” said Chaffee. “Significant emphasis was placed on the ability of federal civilian courts to handle complex terrorism cases.”

Numerous attendees said that they opposed any vehicle, either legislation or an executive order, to produce an indefinite-detention system. Some made the additional point that seeking legislation for a preventive detention strategy would allow a Congress that shows relatively little concern for civil liberties to expand the parameters of any administration approach to detention in unpredictable ways. “Given the political situation in Congress, things could get even worse, and the preventive detention bill could be even broader and more problematic than what the president suggested in the National Archives speech,” said a different participant in the meeting who also declined to be identified. The administration official quoted by Linzer and Finn “somehow misinterpreted” the message, this participant added, since support for a executive order on preventive detention was “not at all what was conveyed by anyone.”

Whether or not an executive order on preventive detention is forthcoming, Obama indicated in his May speech at the National Archives that he embraces the logic of some form of detention for terrorism detainees outside the federal civilian courts, speaking of “detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people.” The same speech pledged to “work with Congress” to come up with a legal regime for detention, though the president did not explicitly indicate if such a system would include future alleged-terrorist captives in addition to Guantanamo detainees.

Accordingly, Benjamin Wittes, a senior fellow at the Brookings Institution, said that he was disinterested in the “continuing debate over whether preventive detention is a good idea or a bad one,” since “the only serious question is what the legal framework for detention will be, not whether it will happen.”

To that end, Wittes released a proposal on Friday for legislation on non-criminal terrorism detention that seeks to give the administration latitude to detain suspected terrorists beyond the battlefields of Afghanistan and Iraq but also impose judicial and congressional oversight on a process that the Bush administration left virtually unbounded, and which the Supreme Court subsequently restrained. His proposal, co-authored with Colleen A. Peppard, creates a 14-day period of detention without charge that could be expanded on a repeatable six-month basis by the federal District Court for the District of Columbia and defines the class of potential detainees in terms of actions they take “working on behalf of the enemy” as defined by acts of Congress.

Wittes added that he had discussed his ideas for preventive detention with the administration task force but declined to elaborate.

Administration officials who would not speak for attribution cautioned that much remained undecided by the administration beyond what Obama had stated publicly, as debate remains ongoing, both within the task force and within the administration more broadly. One knowledgeable source pointed to career government attorneys across the Justice, Defense, and Homeland Security Departments and the National Security Council who had been working on detainee and interrogation issues for years — officials who had been as critical of Bush administration legal excesses as they are Obama-era enthusiasm for fundamental change — as key figures in determining the nuts and bolts of the internal debate. “All those people, consistently, have been warning that the way we pick these people up can’t be separated from the way we deal with them,” the source said. “Schematically, they’re in the conservative-Democrat camp. You wouldn’t find them fundamentally different than Ike Skelton or Carl Levin,” referring to the chairmen of the House and Senate armed services committees.

Even so, human rights groups are now preparing to oppose any forthcoming legislative proposal or executive order on preventive detention. “We don’t want the administration to seek to legalize a system of preventive detention by executive order or by statute,” said Sharon Bradford Franklin, a senior counsel at the Constitution Project who attended the June 9 meeting.

The Center For Constitutional Rights, one of the few major civil-liberties groups that did not attend the June 9 meeting, “would mobilize to oppose any effort to create a preventive detention scheme,” said spokeswoman Jen Nessel. “Whether it’s in the form of an executive order or legislation, indefinite detention without charge, trial or due process goes against our most fundamental principles of justice and the rule of law.”

Michael Price, the national security coordinator for the National Association of Criminal Defense Lawyers and another meeting attendee, said the administration had yet to present a robust case that there was indeed a cohort of detainees who could not be responsibly tried in federal courts, contending that classified information would be adequately protected under statutes like the Classified Information Procedures Act. (Critics contend the act lends too much deference to a defendant.) “An executive order, I think, is dangerous,” Price said. “Congress getting legislation to pass preventive detention is also dangerous, but not any more dangerous than preventive detention itself. But we will oppose either way.”

Price continued, “I don’t think opposition with the administration is necessarily the right way to categorize this, but I think we’d be strongly opposed to the idea of the proposal.”

Cully Stimson, a former deputy assistant secretary of defense for detainee policy in the Bush administration, said he was pleased by both the agitation of the civil-liberties community and the early signals by the Obama administration about preventive detention. “The Obama guys and gals have the facts now — they’ve seen the files, read the cooperation agreements, been read into the programs,” Stimson said. “Even the human-rights advocates who were throwing spitballs at me and other Bush people when I was in [government] who are now on the task force, they clearly are in a better place factually than when they were sitting on the sidelines. Who cares what the ACLU thinks?”

Liza Goitein of the Brennan Center, another June 9 meeting participant, also rejected any preventive detention scheme. But she was heartened that the question appeared not to be settled. “It’s clear that the administration is still struggling on this issue,” Goitein said. “I can see that in the difference between what Obama said in the National Archives speech seeking legislation and then the report of the executive order. It’s safe to say the administration has not come up with a final plan. As long as that’s the case, there’s some hope that there won’t be a preventive detention regime.”

He reportedly brought his idea for a Truth and Reconciliation Commission to the White House Tuesday, talking with President Obama’s new White House Counsel Greg Craig about the proposal. “I went over some of the parameters of it and they were well aware at the White House of what I’m talking about,” Leahy told The Huffington Post. “And we just agreed to talk further.”

Major legal advocacy groups today chimed in with their support for a truth commission, too, including The Brennan Center for Justice at NYU Law School and Human Rights First, both stacked with prominent Democratic lawyers who supported Obama for the presidency.

So is it likely to happen?

Maybe.  As I reported earlier, prosecutions are looking less and less likely, especially as the statute of limitations on many of the Bush administration’s most egregious crimes, including the torture, humiliation and abuse of prisoners, rapidly runs out.

But a bipartisan, independent, investigatory commission, along the lines of the 9/11 or Church commission — or even South Africa’s Truth and Reconciliation Commission — can be a pretty watered-down alternative; they don’t usually lead to criminal prosecutions, even if they’re warranted. On MSNBC’s “Countdown with Keith Olbermann” Tuesday night, George Washington Law professor Jonathan Turley called the idea “shameful,” saying it would ultimately protect war criminals from accountability.

That may be true.  But as Scott Horton pointed out when proposing a similar idea in Harper’s back in November, it would offer one real advantage for President Obama: major political cover.

Illustration by: Matt Mahurin

Earlier this month, Republicans in Ohio lost their lawsuit challenging a state rule that allows voters to register and vote early on the same day. But the state party had no intention of conceding the point. GOP officials demanded records from all 88 county boards of election identifying every person who took advantage of same-day registration and voting. In one county, the Republican district attorney even opened a grand jury investigation.

“He’s investigating people who the law says are allowed to vote,” said Ohio ACLU lawyer Carrie Davis. After it was revealed that the district attorney was also the local chairman of the McCain campaign, he was forced to appoint a special prosecutor to handle the case.

There’s no indication that any of these voters did anything illegal. But the attempt to investigate voters who took advantage of a state rule designed to encourage voter participation exemplifies the kinds of attacks on new voters that are going on across the country.

Illustration by: Matt Mahurin

Even when the challenges fail, Republican officials persist in their claims of voter fraud in what appears to be an effort to lay the groundwork for challenging the outcome of Election Day. In about a dozen interviews, legal scholars and voting experts say this broad-based attack could lead to serious and continuing challenges to the legitimacy of the next president.

“[Republicans are] trying to do what they can to poison the well on the eve of the election because they’re not winning on the issues,” contends Charles Lichtman, statewide lead counsel for the Florida Democratic Party. The party, like the Obama campaign, is assembling a team of volunteer lawyers to take on unwarranted challenges and obstruction to voters on Election Day. “They know there are more Democrats registered than Republicans,” said Lichtman, “so they’re calling out fraud where it didn’t occur.”

For months now, Republicans have been claiming that voter fraud is rampant and that government officials aren’t sufficiently cracking down. Democrats insist that voter fraud is practically nonexistent –- the real problem is intimidation and harassment of voters at the polls, they say.

Voting-rights experts tend to agree with the Democrats. A study by the Brennan Center for Justice, for example, found that, “It’s more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls.”

Another study, by Barnard College political scientist Lori Minnite, similarly concluded that voter fraud is “extremely rare.” The Brennan Center also showed that the sort of strict rules advocated by Republicans in Wisconsin, Ohio and elsewhere would disenfranchise thousands of people -– usually the poor, elderly and minorities.

Even the most rigorous studies, however, haven’t made the issue any less of a political football. Republicans like Cleta Mitchell, an election lawyer who chairs the Republican National Lawyers Assn., says such experts are just part of “the professional vote-fraud deniers industry,” insisting that voting fraud exists even if it’s nearly impossible to prove.

“If you just deny it,” Mitchell said, “then that means that anyone who wants to take any steps to protect the integrity of the process can only be doing that because they’re a racist.”

In fact, even official Justice Dept. policy had acknowledged until recently that individual voter fraud has “only a minimal impact on the integrity of the voting process” and therefore usually wasn’t worth trying to prosecute. Then last year, the Bush administration changed that to allow individual prosecutors to pursue such cases at their discretion.

When some U.S. attorneys refused because of a lack of evidence, several were fired, contributing to the scandal that ultimately forced the resignation of Atty. Gen. Alberto Gonzales. Since then, Democrats have become even more vigilant in fighting back against claims of voter fraud.

In many states — including Florida, Ohio, Wisconsin and Oregon — Republican officials have insisted that states square new voters’ registration information with that in other state databases, such as motor vehicle or Social Security. While such matching is required by the Help America Vote Act of 2002, Republicans in swing states are insisting that the match be exact as a condition to vote.

Some of these “no-match, no-vote” states allow voters whose registration doesn’t match to fill out a provisional ballot, but they must provide matching verification information to election officials within 48 hours or their votes won’t count. In close swing states, which votes are counted could make all the difference to the outcome.

In Ohio, for example, Republicans sued Secretary of State Jennifer Brunner to make matching a condition of voting. In response, she argued that adopting such a rule could get some 200,000 Ohio voters kicked off the rolls. The problem is not that they’re ineligible, for the most part. It’s that the information doesn’t match because voters have changed their names or because state workers have made clerical errors.

Attorney General Michael Mukasey (WDCpix)

Earlier this month, the U.S. Supreme Court sided with Brunner. Ruling on procedural grounds, it found that the state GOP likely didn’t have the right under federal law to challenge the Ohio law’s application. So Ohio Republicans are taking their fight elsewhere. Last week, they sent a letter to U.S. Atty. Gen. Michael Mukasey asking him to force Ohio to require matching under federal law.

And on Friday, President George W. Bush himself got involved, asking Mukasey to investigate the status of the 200,000 non-matching Ohio voters.

The Republican attorney general in Wisconsin brought a similar challenge against his state’s elections board, but it failed last week. (The attorney general plans to appeal the decision.) A Dane County judge ruled that, “Nothing in state or federal law requires that there be a data match as a condition on the right to vote.” A matching requirement, the elections board had found, could have disenfranchised more than 20 percent of Wisconsin’s registered voters.

Republicans have lost most of their legal challenges claiming states aren’t adequately protecting against voter fraud. But legal experts worry that the steady barrage of legal attacks in battleground states is part of a broader effort to lay the groundwork for undermining the legitimacy of the outcome of the presidential election. That could further fuel the anger of the Republican base against the Democratic candidate — and possibly the next president.

“If it’s close, and if, in the grand scheme of things, Ohio would make a difference in the Electoral College or the finally tally, all these aspersions could come into play in challenging those results,” said Davis, the Ohio ACLU attorney. Either party could bring a legal challenge questioning the validity of provisional or absentee ballots.

While experts say it’s rare to see the sort of scenario that occurred in Florida in 2000, where the outcome of the presidential election hinged on a few hundred votes in one state, the increased focus on voter problems and recent changes in voting laws means litigation over the outcome remains a real possibility.

“Besides Florida, you’d have to go back to the 19th century in the United States to get to an election that was that close,” said Daniel Tokaji, a law professor at Ohio State University and an expert in election law. “Then again, in 2004 we weren’t that far away — there were about 100,000 votes in Ohio on which the outcome depended. If we’d had a second litigated election in 2004, it would have been like lightning striking twice. So it could happen again.”

Because of the close elections and revelations of voting problems in 2000 and 2004, said Tokaji, “we’ve got people paying much closer attention to the mechanics of elections.” Also, “there are a lot of changes in the law. That always leads to more litigation, because there are issues of how those laws should be interpreted and applied.”

Even if the election weren’t close enough to merit legal challenges, many Democrats worry that the GOP claims of voter fraud are a preemptive attempt to undermine the legitimacy of a Barack Obama presidency.

“It’s a desperate attempt to unfairly flavor and throw something out there and take people away from the real issues,” said Lichtman of the Florida Democratic Party. Florida’s voter registration rules, which require all voter registration information to match the state databases, have been the subject of ongoing litigation.

The History of Voter Fraud

Claims of voter fraud before an election are nothing new, of course. For centuries, strict-voter registration rules have been applied to limit access to voting, often targeting the poor and minority citizens.

“We’ve seen it throughout American history,” said Tokaji. “In the 19th century, claims of fraud were made to exclude immigrants, ethnic minorities and laborers. And throughout most of the 20th century, the disenfranchisement of African-Americans in the South was done through voter-registration requirements that local officials claimed were to prevent voter fraud.”

More recently, Republicans have been claiming widespread voter fraud to tighten requirements on who can vote. “They’re trying to use the so-called epidemic of voter fraud to justify voter ID laws,” said Gerald Hebert, a senior elections official at the Justice Dept. from 1973-1994 and who is executive director of the Campaign Legal Center, a nonpartisan organization focusing on election reform.

That’s how Indiana came to pass its voter-identification law. When that law was challenged, the Supreme Court acknowledged there was no evidence of voter fraud in Indiana. Still, the court upheld, by a vote of 6 to 3, the state’s requirement that voters present a state-issued photo identification card before casting a ballot, finding that it did not impose an unjustified burden on the poor, minorities or others less likely to have such a photo ID

Associate law professor Michael Pitts at Indiana University studied the effects of the new law. He found the votes of 80 percent of Indiana residents forced to fill out a provisional ballot because they didn’t have the required I.D. card were never counted.

The ACORN Controversy

Recent revelations that some workers from the Assn. of Community Organizations for Reform Now, or ACORN, have turned in fraudulent registration forms has fanned the flames of this dispute, leading to calls for more voter-identification laws, as well as no-match, no-vote requirements.

But Republicans’ claims against ACORN have gone further. Legislators and party officials have used the false registrations to claim that ACORN is engaging in an effort to steal the election for the Democratic Party. Investigations of fraudulent activity are going on in at least 10 states, and the Justice Dept. has reportedly begun an investigation of ACORN, a community-organizing group that advocates on behalf of low-income families, following requests from numerous Republicans.

Sen. John Cornyn (R-Tex.), for example, a member of the Senate Judiciary Committee, wrote to Mukasey earlier this month, urging him to investigate ACORN as a “criminal enterprise.”

The Obama campaign and former Dept. of Justice lawyers involved in voting-rights issues say such an investigation before the election might intimidate legitimate voters and violate Justice Dept. policy.

ACORN has repeatedly explained that when its workers submitted false registrations, the fraud was against ACORN, not against voters or the elections process. That’s because the duplicate or made-up registration forms were mostly turned in by workers who ACORN paid to sign up voters in their neighborhoods.

That some of those workers copied names out of the phone book, or listed their favorite cartoon characters, doesn’t mean those people are going to show up to vote. But it does mean that ACORN didn’t get it’s money’s worth. The group checks all submitted registration forms and flags for local election officials those that are suspect. In most states, it’s still required by law to turn all forms in.

“The overwhelming evidence is that fraudulent voter registrations do not lead to fraudulent voting,” said Wendy Weiser, a deputy director specializing in voting rights at New York University’s Brennan Center for Justice. “It’s a big resource drain on election officials, but it doesn’t affect the outcome.”

That hasn’t stopped the allegations. Sen. John McCain’s claim in the last debate that ACORN is potentially committing “one of the greatest frauds of voter history in this country, maybe destroying the fabric of democracy” has helped set the stage for broad claims of a stolen election after Nov. 4.

McCain’s remarks were followed by violence. Within days, two ACORN offices were vandalized, and one organizer received a death threat. People for the American Way reports that ACORN offices have received a barrage of racist and threatening voicemails and emails.

ACORN’s own exaggerations about its effectiveness in registering voters haven’t helped. Last Thursday, the group admitted it had vastly overstated the number of legitimate new voters it registered this year, acknowledging that about 30 percent of the 1.3 million new voters it had claimed credit for were either duplicates or not real.

Though some percentage of erroneous applications is expected, both the large number of registered voters and the colorful news stories — about how characters like Mickey Mouse have registered, for example — encouraged Republicans to keep hammering away at charges that the liberal-leaning group, which advocates on behalf of low-income Americans expected to favor Sen. Barack Obama, is planning to steal the presidential election for Democrats.

Given the latest polls, it probably wouldn’t need to. But election lawyers worry that the problems of voter registration by groups like ACORN provide an easy way for Republicans to later claim, if Obama wins, that he’s not the legitimate president.

“It does seem like there is an attempt to cast the specter of voter fraud over this election,” said Hebert. “Like there’s an attempt to get people all riled up in the base of the Republican Party, to say, ‘We’re not going to let people steal our election.’”

The presentation was mostly a rehash of now-familiar talking points: minorities are targeted; Samuel J. Wurzelbacher (aka Joe the Plumber) would be purged if he were a new voter because his name is misspelled on Ohio voting rolls; and it’s more likely that someone will be struck by lightning than he will impersonate a voter on Election Day.

More noteworthy was the center’s proposed solution to voter suppression — universal voter registration.

Ideally, everyone should automatically become registered upon turning 18, said Brennan Center Deputy Director Wendy Weiser. Nevertheless, because there are more people in DMV registries than on voter rolls, “even using existing lists, we can do far better than we are currently doing.”

Voter suppression in elections past. (Brennan Center)

Representatives of the Brennan Center at the news conference largely skirted ACORN and the charges of voter fraud leveled against it.

After the presentation, I asked Michael Waldman, the director of the Brennan Center and a former head speechwriter for President Clinton, about the threat of voter suppression as a result of GOP challenges to ACORN’s registration lists.

“I think it’s a major excuse for voter suppression,” he responded. While there have been problems with ACORN’s registration efforts, he added that “the vast amount of good they’ve done ouweighs that.”

Waldman’s admonition to voters: “Don’t take no for an answer.” If you get turned away from the polls, call 1-866-OUR-VOTE and let the good guys rush to your defense.