From their ninth-floor boardroom in downtown Washington, Edward Hailes and Elizabeth Westfall are surveying four years of preparation.
Butcher's paper is pasted from one end of the room to the other, scrawled with raw numbers collected from county precincts across the country, part of their group's efforts to track whether polling places from Cuyahoga County, Ohio, to Hillsborough County, Fla., will have enough workers and voting machines to cope with the expected record turnout today.
"We always joke that we hope we'll be relaxed on Election Day," says Westfall, a former associate at Wilmer Cutler Pickering Hale and Dorr.
Westfall and Hailes are senior attorneys with the Advancement Project, a voting rights nonprofit founded seven years ago. Their group is one of more than 100 local, state and national organizations that have banded together to form the Election Protection Coalition, an umbrella group that calls itself the largest voter protection effort in the nation's history.
Still haunted by memories of Florida in 2000 and Ohio in 2004, these civil rights organizations, public interest groups and private law firms are ready to deploy an army of lawyers on Election Day. In a hotly contested election, where victory can come down to a small number of votes in a handful of battleground states, these groups are ready to take their fight to the courtroom, already the site of many of their pitched battles over the last four years.
"We expect litigation up to the time the confetti falls and the balloons are let loose," says Michael Waldman, executive director of the Brennan Center for Justice, another coalition partner. More than 40 major lawsuits involving voting procedures are already pending with additional litigation being filed in the weeks leading up to the election.
While the coalition calls itself nonpartisan, its efforts are politically charged, with increased voter access, especially among low-income and minority voters, favoring Democratic candidates. Barbara Arnwine, executive director of the Lawyers' Committee for Civil Rights, which is managing the coalition, says her organization will litigate wherever there are voting irregularities, regardless of who carries a state. "The issue is not about who controls the White House or Congress, it's about, 'Was there a truly open and democratic process that resulted in whoever sits in those offices?'" she says.
MILITARY-LIKE OPERATION
This year, the Election Protection Coalition has mobilized more than 10,000 volunteer attorneys, law students and paralegals across the country.
Eric Marshall, election campaign manager for the Lawyers' Committee, describes a military-like operation. Legal advisers will field a projected 200,000 calls on a nationwide hotline from 32 call centers, mostly staffed by lawyer volunteers and located at 40 private law firms. Voting irregularities will be logged on a central database, built and hosted by the Electronic Frontier Foundation and publicly available live on the Web. Another set of lawyers will monitor polling sites at 42 county or citywide jurisdictions targeted because of their history of voter difficulties or the competitiveness of their electoral races. All major voting problems will be reported to 40 local legal committees, made up of representatives of law firms, bar associations and grassroots voter registration and get-out-the-vote groups, who will dispatch attorneys to liaise with election officials or file litigation.
"After the debacle in 2000, civil rights organizations had to do some intensive soul searching about the best way to respond to that particular crisis to prevent future voter disenfranchisement and harassment," Arnwine says.
The Election Protection Coalition, founded shortly after the 2000 election, has grown to include progressive groups like the Advancement Project, the Brennan Center, Common Cause, and People for the American Way; labor organizations like the AFL-CIO; bar associations and legal defense funds; and media partners NBC News and YouTube.
It's also backed by Washington law firms, including Reed Smith, DLA Piper, Patton Boggs and Bingham McCutchen, that will host call centers or provide lawyers.
Marshall says the pro bono support from law firms is the coalition's main source of funding. The Lawyers' Committee, which has six lawyers and two other staff members working exclusively on voting rights, is using some of its $7 million in donations to fund the election effort. Donors include the Ford Foundation and the Tides Foundation.
The Help America Vote Act, passed in 2002, was meant to shore up voting problems by requiring states to upgrade voting machines, improve poll worker training, maintain statewide electronic voter registration lists, and allocate provisional ballots to voters initially deemed ineligible.
While HAVA ensured Americans will never again be confronted with a hanging chad, it also created an administrative nightmare, with differing interpretations among states and a surge in lawsuits across the nation. "HAVA has been a mixed bag," says Loyola University election law specialist Richard Hasen, who says election litigation more than doubled between 2001 and 2006.
HAVA's chief compromise was its voter ID provisions, touted by Republicans as a way to guard against voter fraud. Democrats call the provision a modern-day poll tax, disenfranchising first-time young, low-income and minority voters who register by mail and are then unable to produce valid photo ID or official papers.
Republican lawyers will be mounting their own voter integrity efforts on Election Day. The Republican National Lawyers Association has conducted training sessions -- including one held at Wiley Rein's Washington office -- for more than 1,000 lawyers who will observe polling booths on behalf of campaigns and party committees across the country and will be ready to identify any discrepancies with a voter's registration.
The RNLA's executive director, Michael Thielen, emphasizes that lawyers never directly address a voter. "Depending on what jurisdiction they're in, the lawyers will talk to the election officials and raise their concerns. Even if that election official decides a voter is not legitimate, they'll still be allowed to vote provisionally."
D.C. LAWYERS ON THE FRONTLINE
Edward Foley, election law specialist at Ohio State University's Moritz College of Law, says election litigation filed so far has been highly strategic, sophisticated and well-resourced. "Each side is making strategic judgments about whether to engage in proactive litigation in the interests of plaintiffs or defensive litigation," he says.
James Joseph, John Freedman and Anne Davis, partners in Arnold & Porter's Washington office, are representing plaintiff voters in League of Women Voters v. Blackwell, the challenge to Ohio's electoral processes currently before the 6th U.S. Circuit Court of Appeals. Seth Waxman, Paul Wolfson and Ariel Waldman, all partners at Wilmer, are acting for the NAACP Texas in Northwest Austin Municipal Utility District No. 1 v. Gonzales, a Texas challenge to pre-clearance laws, currently being appealed to the Supreme Court.
Hailes and Westfall, meanwhile, are gearing up for a busy Nov. 4. Hailes will be stationed in Baltimore and Westfall in St. Louis, where both will be members of the coalition's legal "command centers." They say they've spent the last few years building up good relationships with the local election officials so that if problems arise, they can put in the calls and sort it out on the spot. If not, they're ready to file suit.
"Our best work, we hope, is done well before Election Day," says Hailes. "I'm scared if we have to do our best work on Election Day."
