On the brink of another crisis

There is a more than even chance that this US election will be as close as the last. If it is, 30,00

My favourite election spoof this year was sent to me from a Democrat in Colorado, a former US colonel who is not enamoured of George W Bush. It takes the form of an e-mail from Governor Jeb Bush of Florida, who greets voters: "I'm your impartial Governor and I welcome you to Electronic Voting: the most advanced, secure and accurate way to vote."

You then proceed to an electronic voting screen with two simple voting boxes, one for Bush and the other for John Kerry. But if you try to vote for Kerry, the box slithers away on the screen every time your mouse goes near it. Indeed, it turns out that it is totally impossible to vote for Kerry. The next screen says, regardless: "Your vote for George W Bush has been successfully registered."

I don't know which is more depressing: that in the crucial swing state of Ohio, say, 73 per cent of voters will use the same type of antiquated voting machines which led to the 2000 election debacle in Florida. Or that 30 per cent of US voters will vote on new electronic voting computers that are fairly easily sabotaged and which leave no paper trail for verification. The country is in an ugly mood, ready to dispute the outcome of this year's election whichever way it goes.

The stage is thus set for another election fiasco, with armies of lawyers - as many as 30,000 - ready to be mobilised by both campaigns to dispute the election if it is as close as the last. The Kerry campaign says there is a 40 per cent chance that this will happen, while a new poll out says that 48 per cent of people across the country believe that an illegitimate winner may prevail, with 56 per cent ready to abolish the electoral college - a seismic change to the US constitution.

I put the chances that we will not know who the winner is from Tuesday's election by the following morning at slightly more than 50:50. A preponderance of opinion polls continues to show Bush ahead by three or four points in the popular vote, but just when this seems settled another poll gives Kerry a clear lead (during the time that I took to write this report, com-fortable Bush leads in the daily Washington Post and Rasmussen polls morphed into small Kerry leads).

The tables that matter - showing estimates of the final electoral college tally - put the race even closer. Voters in the huge states of California, Texas or New York do not count in this election because they will vote in a preordained fashion - Texas for the Republicans, the other two for Democrats.

Because of this, the candidates have hardly set foot in these three states - though they have a combined population that is half as big again as that of Britain, say, with 120 electoral college votes between them. Probably only ten states actually matter in this election, though they are by no means the biggest: Nevada, with five electoral votes, New Mexico (five), Minnesota (ten), Iowa (seven), Wisconsin (ten), New Hampshire (four), Colorado (nine), Ohio (20), Pennsylvania (21) and Florida (27).

The tally of electoral votes that the winning candidate must reach is 270. This means that it is not so much the national campaigning that counts, but how shrewd each campaign has been in the way it has chosen to target the ten crucial states.

The candidates go to the swing states to make their speeches because they know that local television in the states will give them critical coverage; local coverage, arguably, matters more than national exposure. Despite Bush's personal implosion - I continue to believe that he is now both cognitively impaired and emotionally unstable, and I do not say this lightly - the Bush-Cheney camp has so far run a better campaign than Kerry's. But in most of the predictions for the final tally of electoral college votes, Kerry is doing better than polls predicting the popular vote.

All the states, with the exception of Nebraska (five) and Maine (main), give all their electoral college votes to the winner of a simple majority; Colorado, depending on the outcome of an amendment that will also be on its ballot on Tuesday, may become the third state to allocate its electoral votes in proportion to the votes each candidate wins.

I listened to the 1960 Nixon-Kennedy debates a few days ago, and was impressed by how articulate each man was; neither just delivered prepared talking points, but rather listened and reacted to what the other was saying. That election was as astonishingly close as this year's may turn out to be - but Nixon, to his credit, did not take the route of contesting it in the courts. Kennedy easily beat Nixon in the electoral college by 303 votes to 219. But, in doing this, he won only 0.2 per cent more popular votes than Nixon - 118,754 votes.

The arithmetical permutations of how each state will vote on Tuesday are endless. Bush could afford to lose Ohio and Pennsylvania if he wins Minnesota and Iowa; Kerry could lose Florida and Ohio if he wins Colorado and New Hampshire. If Kerry wins the same states that Al Gore won four years ago and also takes Nevada and New Hampshire, there will be a tie of 269 each in electoral college votes. If Kerry manages to win Ohio and New Hampshire, but loses Wisconsin and New Mexico, it will be a tie. And if Bush fails to win Ohio and Pennsylvania - but prevails in Florida, Wisconsin and New Mexico - there would also be a tie.

If that should happen, the outcome of the presidential election goes to the House of Representatives for adjudication: all 435 members are also up for re-election on Tuesday, but there will almost certainly be another safe Republican majority. That, therefore, would be bad news for Kerry. But a tie remains a long shot.

What is much more likely is that some of the results will be extremely close, thereby leading to legal challenges - by either side. The Democrats have thousands of lawyers ready to fly to battleground states if the result is close, ready with allegations that potential voters (Democrat ones) were improperly excluded from voting; conversely, thousands of Republican lawyers are ready to allege that voters (Democrats again) were improperly added to the electoral rolls.

Challenges would first be lodged with state courts, before proceeding up to the US Supreme Court.

We know that this is a supremely litigious country in which it is considered normal for lawyers to adjudicate in all disputes, so it is perfectly logical that they should now decide the outcome of elections.

There is new grist to their mill this year: it is the first time that the $4bn Help America Vote Act, passed by Congress in 2002, will be operational. This will introduce "provisional" voting, whereby anybody who turns up to the polls but does not seem to be registered properly will still be allowed to cast a vote - which will then be counted or discarded, depending on later research. With each state interpreting this law in a multitude of different ways, the stage is again set for that lawyers' dream, a legal free-for-all with much loot going to lawyers.

To complicate matters still further, probably as many as 12 million votes have already been cast in early or absentee votes: 30 states now allow early voting, which confuses the polls. In many other states, absentee ballots are not counted until after election day; all they need is to be postmarked by 2 November.

Phew. It is all too much. I spotted a bumper sticker in Washington last Monday which had just three words punctuated by full stops: "Worst. President. Ever." Each campaign is spending $10m a day. Bill Clinton, fresh from heart surgery, is now in the ring. I had no sooner predicted that this year's winner will make four crucial selections for the US Supreme Court than Chief Justice William Rehnquist, 80, went into hospital for cancer surgery. Eleven per cent of voters are undecided, with a majority of those votes probably heading Kerry's way. "Vote for Kerry, get nuked, Veep says," screams a headline in the Boston Herald. "Could Hawaii be this year's Florida?" asked the Honolulu Advertiser last Monday.

I have even more depressing news this week, though. Voters are ten times more likely to get their crucial information from campaign ads on television than anywhere else, according to polls. Seventy three per cent of Republicans believe that Saddam Hussein was behind the 11 September atrocities and that WMDs were subsequently found in Iraq.

The agony may well be over on Wednesday morning - but, then again, we might have to wait until Christmas or even beyond before we know who will swear the presidential oath on 20 January 2005.