Preemptive Lawsuits Filed for Election

This is a rush transcript from "America's Election HQ," November 3, 2008. This copy may not be in its final form and may be updated.

MEGYN KELLY, CO-HOST: Well, it's not even Election Day and already, the lawsuits start. Hundreds of thousands of voters' records have now been found on the side of a Florida in Tampa early this morning. Take a look at these. They think they may have fallen off a truck, so that may not be voter fraud.

However, Florida Democrats are already filing a lawsuit against the GOP, accusing Republicans of planning to challenge voters whose addresses don't match up with their registration.

FOX News senior judicial analyst Judge Andrew Napolitano is here.

• Video: Watch Megyn Kelly's interview

All right. So call me crazy, but if the GOP challenges voter registrations where the address doesn't match up, that sounds like a good thing. Why would the Democrats want to shut that down?

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Well, the Democrats want to shut that down because they claim that some of the challenges might not be the same address, but you might still be able to vote because you're still living in the same district.

KELLY: So, OK. If that's true, then you can prove it when you get challenged, and everybody's happy. At the end, you've got a real vote.

NAPOLITANO: Except that this can't be done overnight. The challenge, theoretically, should be done - now, of course, this is according to Florida statue - 30 days before Election Day. Now, these mailers just went out last week. So a person will go to vote — a Democrat will go to vote.

And Republican challengers will say, "I challenge that person, because I have reason to believe that they don't live there anymore. That person either can get in line and wait to get it to a judge and have to challenge it, which could take all day or not even be heard that day. Or that person could vote in a provisional ballot, put it in a box, the box is not opened unless they need - unless the vote is so close that they have to go into the box.

KELLY: They don't like the provisional ballots. But let me ask you this. So - we should know what the GOP has done in some cases is send out attempts to confirm addresses to these registrations. And if they don't get — if it gets returned to sender, then they challenge it. Do they have to have a good faith basis to challenge the voter at the polls?

NAPOLITANO: Yes, they do. Otherwise, it's a crime to challenge a voter at the polls. Now, it is a misdemeanor. It's punishable by six months in jail. There is no record of anybody actually going to jail for it. But in what is called a frivolous challenge, one where there is no good faith basis, one just based on the fact that, "I didn't get a postcard back that I mailed that person." Or, "I did get postcard back and it showed they lived somewhere else."

If it's frivolous, they can go to jail but it will still result in one of two things, waiting in line for a judge to resolve it. And I used to resolve these things when I was a brand new judge and got the unenviable assignment of Election Day duty. Or you vote in the provisional ballot, which means your vote may never count if they don't get to that provisional box.

KELLY: OK. Before I let you go, can I ask you — the Democrats are doing this preemptive lawsuit to try to shut down potential Republican lawsuits. To me, that doesn't sound like the issue is ripe yet. Do you think this thing will be kicked out?

NAPOLITANO: I do think the thing will be kicked out for the very reason that you said. Unless someone actually has their voting right impaired, the court's not going to get involved. But if someone does have their voting right impaired for a frivolous reason, you will see the court coming down on hard on the people who do it.

KELLY: We are definitely seeing lawsuits.

NAPOLITANO: How many lawsuits do you think we're going to have filed in the next 24 hours?

KELLY: At least a dozen.

NAPOLITANO: Agreed.

KELLY: And Judge Andrew Napolitano will be there with us tomorrow night during our primetime coverage to ferret it out along with the expertise of Greta Van Susteren. We've got lawyers everywhere, all over the election sites. We've got almost as much as the parties got.

NAPOLITANO: We may be busy, too.

KELLY: Thanks, judge. Well, Greta and I are lawyers, but Judge is a judge. So I think he's going to have to be the arbiter of disputes.

NAPOLITANO: There you go.

KELLY: Well, when you are out voting, if you see anything that you think breaks the rules, you can communicate it to us. You can send us an E-mail at voterfraud@foxnews.com , and our team will investigate. How about that?

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