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Elections and Lawfare: Where Will Be The Last Battle In The Battle For The Senate? The Courts.

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“Lawfare” means the use of law and legal proceedings by a nation or a group against another nation or group to advance military or foreign p;ocu goals.  There’s a great blog titled “Lawfare” run by Brookings, and the term is used frequently and understood as the continuation of confl;oct by other, law-related means.

“Political lawfare” has always been around the margins of redistricting law and with the occasional bogus prosecution of a political enemy, but it began to be a regularly recurring feature of American politics with the epic court battle launched by Al Gore in Florida against George W. Bush in the aftermath of the 2000 elections.

With control of thee Senate likely to hang on the results of some elections that are polling very close right now, I spent part of Friday’s show from Minnesota with one of the leaders of the election law group at my firm, Robert C. O’Brien, discussing how lawfare is spreading to more and more contests every cycle, and appearing in more and more situations like the bogus indictment of Texas Governor Rick Perry.

The transcript of my conversation with O’Brien is here, and my Monday Washington Examiner column on election and political “lawfare” is here.

One race almost certain to go into overtime because of Louisiana’s unique election rules is Louisiana’s Senate race between embattled and sinking Democrat Mary Landrieu and Dr. Bill Cassidy, a Congressman from the state who has made Landrieu’s pivotal support for Obamacare the centerpiece of his campaign. Landrieu’s campaign is presently imploding over her use of privately chartered jets paid for by her Senate office fund, and the “survivor” of the state’s sharp turn towards the GOP over the past two decades may finally have run out of time and election magic. The races in New Hampshire and Iowa are already statistical dead heats, and with Alaska’s former state Attorney General Dan Sullivan the Republican nominee that race will join the list that includes Tom Cotton’s in Arkansas, Cory Gardner’s in Colorado, Terri Lynn Land’s in Michigan, and Thom Tillis’ in North Carolina, in which Republicans are surging and thus where Democrats have to be looking at election day shenanigans to preserve Harry Reid’s power.

A handful of governor’s races could also end up in overtime court battles with the dreary business of ballot-by-ballot challenges and recounts replace the cut and slash of electioneering via ads and debates.   It isn’t a happy turn of events, but as the stakes around who controls government have grown, so have innovations in gain office including lawsuits and counter-claims.

I closed my interview with O’Brien and my column tomorrow with the same admonition: Every candidate ought to be demanding of every campaign manager a briefing on their legal team’s plans for making sure the polls are conducted accordion to law and every ballot counted just once and fairly, and every bogus ballot challenged and tossed out.  Waiting for election night to ask for the legal plan is guaranteeing a loss in court.


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