2012: Year of the low information voter and electoral lawsuit Armageddon?

In an exciting and issues-rich election year, polls find us evenly divided between President Obama and his challenger Mitt Romney. Swing states are being subjected to an unprecedented assault of political advertising, enabled by the Supreme Court’s opinion in Citizens United treating unlimited political spending as the equivalent of free speech.

To whom is all this advertising directed, since nearly all of us have already made up our minds? Is anyone reading this, for example, likely to change his or her vote because of a TV commercial?

All that expensive advertising is directed at the very small number of voters whose votes are susceptible to being changed by advertising. Who are those voters? They are voters who haven’t been paying attention to the campaign, don’t know much about the issues or the candidates, but who will cast a vote anyway. This plays to the advantage of Mitt Romney, who is trying to recast himself as a reasonable moderate, after declaring himself “severely conservative” throughout the primary campaign.

Although he repeatedly pledged to repeal all of Obamacare, Romney now declares his intention to preserve all the popular parts of Obamacare, and get rid of only the bad parts. Although he condemned the entire Dodd-Frank law placing restrictions on Wall Street, he now says he will keep the reasonable parts of that law, too. What a reasonable guy!

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Having signed the Republican pledge to never, ever raise taxes by even a penny, Romney promised during the primary campaign that he would reject a deficit-cutting deal that cut spending by $10 for every $1 in new taxes. But now he criticizes President Obama for failing to enact the proposals of the Simpson-Bowles commission on the deficit, which called for big spending cuts together with big tax increases. New, more reasonable Romney can ignore Paul Ryan’s vote, as a member of the commission, against the proposals.

As top Romney advisor Eric Fehrnstrom predicted in response to a question whether Romney had tacked too far to the right to re-position himself as a moderate in the general election, “I think you hit a reset button for the fall campaign. Everything changes. It’s almost like an Etch A Sketch. You can kind of shake it up and restart all over again.”

That turns out to be a good strategy to reach the undecided low-information voter. And as a result, the race is a dead heat in both the popular vote and the more important Electoral College.

I hope I’m wrong, but if the outcome turns out to be as close as the polls are predicting, we can expect a re-play of the 2000 Florida recount battle, but on a larger scale, in multiple states, that could last as long, or even longer than the 2000 litigation.

Both campaigns have studied and learned from what happened in 2000. Both campaigns have lawyers ready in every swing state to file lawsuits demanding recounts and citing voting irregularities if a close vote turns against them.

And don’t think this could have been avoided by switching to a simple popular vote to decide the presidency. In a close election, that would trigger election challenges in every jurisdiction where any allegation of voting irregularity could be made, including absentee, military and overseas voting. That could mean high-stakes lawsuits in all 50 states and even the District of Columbia!

So we should be grateful to still have the Electoral College written into the Constitution by the founding fathers. And I’m sure all the candidates agree, whatever the result, we should be grateful this long political campaign is finally coming to an end!

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