Both major parties are marshaling armies of lawyers—tens of thousands of them—to be ready for battle over every important aspect of this year's election process, before, during, and after Election Day, wherever the potential for partisan advantage exists.

Targeting sympathetic judges and election officials who might be predisposed to tip the results in battleground states including Florida, Missouri, New Mexico, Ohio, and Pennsylvania, these lawyers will be cooking up grounds—or pretexts—for Florida-2000-style recounts and other challenges. It seems all too possible that if the presidential election is close, the courts will once again put us through weeks of uncertainty and once again determine the outcome. The resulting explosion of bitterness could dwarf the one after Bush v. Gore, further depleting the legitimacy of our political and legal processes alike.

"The victory may go to the person who brings the sharpest and best-prepared litigation team to the process, either to challenge a questionable result or to bring about a questionable result," laments a prominent Democratic election lawyer who is both deeply involved in such litigation and deeply dismayed by its proliferation. "If it looks like one side is losing, they're going to look for ways of saying, 'Something's got to be wrong with this election.' " (This lawyer, who disputes the partisan Democratic dogma that George W. Bush and the Supreme Court stole the 2000 election, requested anonymity.)

Dozens of legal battles are already under way, over the suspected inadequacies of touch-screen voting machines; over voter-registration rules; over bans on voting by felons; over accommodations for disabled voters; over whether to count the "provisional ballots" of voters who go to the wrong precincts; over the wording of campaign ads; over Federal Election Commission regulations enforcing the McCain-Feingold campaign finance law (which a federal district judge in Washington, D.C., recently struck down as too lax); and over much more.

You can hardly blame the politicians for the unprecedented scale of this legal mobilization. The judges have invited it. Like a great, ever-spreading blob, judicial power has insinuated itself into every nook and cranny of the political process during the four decades since the Supreme Court's one-person, one-vote decisions. In many areas, Congress has mandated such intrusions. Its incomprehensibly complex succession of campaign finance laws have forced federal candidates since the 1970s to deploy squadrons of lawyers to navigate the maze. But courts have also been so willing to second-guess election statutes and administrators as to make litigation an indispensable political weapon.

Would your side do better if officials bought new voting machines, making it harder for careless voters to spoil their ballots? Call a lawyer. Do you suspect that the new machines are not tamper-proof? File a lawsuit. Have you heard that Democrats are recruiting illegal immigrants to vote? Find a Republican-leaning judge. Might anti-fraud rules requiring voters to show photo ID's have a disproportionate impact on minorities? Find a Democratic-leaning judge. Does your district have too many—or too few—black voters? The courtroom doors are wide open—and I can tell you which courts are predisposed to rule for your side. Do you want your adversaries' campaign-related ads censored? Read how it's done in Jonathan Rauch's column next door.

For the judiciary and its academic enablers, election litigation—which began as a necessary safeguard against fraud and cheating—has morphed into pursuit of a hubristic and utopian illusion: that election results will somehow have more credibility and reliability if judges re-engineer the process from top to bottom.

Credibility? How much credibility did the Supreme Court's 5-4 vote to end the manual recounts in Florida have with Democrats? "EQUAL PROTECTION, MY ASS!" was the considered judgment of Harvard law professor Lawrence Tribe, a leader of Al Gore's legal team, in a 133-page law review article. (Tribe was quoting a pro-Gore button with approval.) Those words were directed not only at the five conservatives but also at two more-liberal justices, who agreed with the majority that the Florida Supreme Court's manual recount process violated equal protection but would have let that court try again.

Tribe, who was back in front of the Florida court on September 17 in an unsuccessful effort to keep Ralph Nader off the November ballot, is fairly representative of the overwhelmingly Democratic legal academy. Yale Law School big shot Bruce Ackerman called Bush v. Gore "a blatantly partisan act, without any legal basis whatsoever." The University of Chicago Law School's biggest star, Cass Sunstein—who had initially called it "a stabilizing decision that restored order to a very chaotic situation"—got religion and said it was "illegitimate, unprincipled, and undemocratic." Federal appellate Judge Guido Calabresi, a Clinton appointee and former Yale Law School dean, told a lawyers convention in June that the Supreme Court's "illegitimate" installation of Bush resembled the rise of Adolf Hitler and Benito Mussolini. (Calabresi, whose partisanship is hardly unique on the federal bench, later apologized for being so open about it.) Some Republican experts have also assailed the pro-Bush ruling as at best unwise.

Now let's suppose that the justices had let the overwhelmingly Democratic Florida court have the last word. How much credibility would any Gore victory have had? Federal appellate Judge Richard Posner—a Reagan appointee who is one of the nation's pre-eminent legal scholars and is no Republican partisan—asserted in a book about the case (Breaking the Deadlock) that by "changing the election rules after the outcome of the election," the Florida court had behaved like a "banana republic." Its two decisions "butchered" the state's election code, Posner said, by making eight separate "grave legal errors," each of which could only help Gore, and by engineering a rushed manual recount that was both "tainted with partisanship" and less reliable than the two machine counts that Bush had already won. Some Democratic experts privately agree.

As for the courts' collective conceit that their interventions make election results more reliable, the Bush-Gore battle offers two lessons. First, the election was a statistical tie, in the sense that every possible vote-counting process would have had a margin of error larger than Bush's 537-vote margin of victory. Second, there is no evidence that the Florida court's manual recounts were more reliable than the machine recounts required by the state's election code, which the Florida court discarded. Indeed, as Posner details, the manual recounts were probably less reliable. A simple coin flip would have been more fair, because it would have been less subject to partisan manipulation.

(It also seems likely that Gore would have won Florida, and the presidency, but for the voter confusion caused by the poorly designed butterfly ballot; the ballot apparently cost Gore more than 6,000 votes in Democratic-leaning Palm Beach County. But experts agree that the impossibility of telling which butterfly ballots had been cast erroneously ruled out any judicial remedy.)

The wonder is that despite all this, there remains in our collective psyche a mystical faith in the courts. One reason is the relentlessly negative media portrayal of the political process itself as being so hopelessly corrupt and inefficient as to need superintendence by apolitical wise people. But even if judges were more wise and apolitical than elected officials—which is debatable—lawsuits often turn more upon which side is better at legal hardball than upon fair appraisal of the facts and law. Such hardball lawyering is deeply damaging to our democratic culture. So are the delays caused by litigation, especially in presidential elections. The five-week Florida fight not only aggravated the degeneration of our politics into ugly partisan brawling, but also consumed almost half of the time that the Constitution gives a newly elected president to organize his government.

Whose fault is all this? Some Democrats blame Bush v. Gore. But the majority's (raggedly expressed) legal reasoning was far more defensible than the partisan professors acknowledge. In any event, a different outcome would not have slowed the lawyerization of the political process. Some Republicans blame Gore for sending a planeload of lawyers to Florida to challenge the apparent outcome hours after the polls had closed. But I suspect that Bush would have done something similar had the shoe been on the other foot.

The one major actor in the Florida 2000 drama whose actions were indefensible, in my view, was the Florida Supreme Court. But the main cause of our current mess is a much deeper, decades-old, media-driven cultural trend: the self-aggrandizement of our legal culture at the expense of our political culture.