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Republicans need to be ready for Democratic election lawfare

Could Mike McFadden, the GOP nominee for Minnesota‘s U.S. Senate seat, best Democratic incumbent Al Franken on Election Day, Nov. 4, and lose the race in overtime?

The last Republican to face Franken, former Sen. Norm Coleman, did just that, losing a recount battle that was, according to most observers, a well-run Democratic legal and media blitz against an unprepared and overmatched GOP.

Could Doug Ducey, Arizona‘s state treasurer and prohibitive favorite to become the Republican nominee for the open statehouse seat in the Grand Canyon State triumph in a grueling six-way primary this week only to see Democrat Fred Duval use the same sort of legal chicanery that marked that state’s absurd redistricting process to advantage himself when voting concludes there this fall?

Or Colorado’s Republican Senate nominee Rep. Cory Gardner or gubernatorial nominee and former Rep. Bob Beauprez fall to fraud in the execution of the state’s new “mail-in” balloting system much as did Republican Dino Rossi in the triple recount, scandal-plagued Washington governor’s race in 2004, where it took three tallies of the largely mailed-in absentee ballots to put Democrat Christine Gregoire over the top by 129 votes.

In key race after race in the fall — Rep. Tom Cotton‘s Senate race in Arkansas against the invisible Democrat Mark Pryor, Thom Tillis‘s effort to topple North Carolina’s unpopular Democratic incumbent Kay Hagan, Dan Sullivan‘s contest in Alaska against Democratic Sen. Mark Begich who only won six years ago because of the deeply corrupt prosecution of the late Sen. Ted Stevens — Democrat proclivity for playing fast and lose with election law poses a threat to the real results of the voting.

The history of Democratic fraud in partisan politics was detailed in my 2004 book If It’s Not Close, They Can’t Cheat, and the chaos in vote-counting processes revealed by the epic Florida battle of 2000 between George W. Bush and Al Gore has only gotten worse according to the man who watches it most closely, author and columnist John Fund.

“Lawfare” over elections is spreading, not receding, and the bogus indictment of Texas Gov. Rick Perry and the now dismissed “John Doe” investigation of Wisconsin Gov. Scott Walker are portents of standard operating procedures not aberrations. The candidate who wins an election should be the man or woman with the most votes, not the one with the best lawyers or the one favored by the least ethical prosecutors in any given state.

So said my law partner Robert O’Brien on my radio show this past Friday, immediately after an extended interview with the articulate, charismatic McFadden who reminds many of Wisconsin’s Ron Johnson, who won and ran an uphill race against Wisconsin’s Democratic machine in 2010. O’Brien and my colleagues Thor Hearne, Bush’s national election counsel in 2004, and Craig Engle are all veterans of Election Day legal battles and overtime recounts across the country and they are gearing up for the busiest post-election set of legal challenges ever.

Democrats haven’t been battling voter identification laws because of “voter suppression,” but as an extension of their deeply ingrained theory that all’s fair in love, war and elections. Gore’s demand for a “partial recount” in Florida after un-conceding the presidential contest in 2000 set off a cycle of lawfare unprecedented in modern politics, and it’s only getting worse. Every single Republican candidate at every level has got to begin now to enlist local lawyers as volunteers and national counsel as experts to prep for the inevitable attempt to keep Harry Reid in power as the Senate’s majority leader by any means necessary and to provide Democrats with at least one highly visible statehouse win.

Pollyannaish approaches to election law loses elections just as surely as gaffes and debate flops. Hopefully the GOP gets this basic rule of 2014.


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