Voter ID fight in line with rich tradition

Todd Ruger

The National Law Journal

01-07-2013

Veteran commercial litigator David Gersch shifted into a new role at Arnold & Porter last year: extending the firm's long tradition of high-profile pro bono work. Just three months later, he was leading a team of 19 firm lawyers into a politically charged fight to protect voter rights in Pennsylvania.

The American Civil Liberties Union of Pennsylvania and other advocacy groups in the state approached the firm's Washington office in March for help challenging a new law requiring voters to show photo ID at the polls. If it stood, as many as 1 million eligible voters could be kept from voting in the November general elections."It was exactly the kind of case we wanted," Gersch said. "It was a case where you needed a lot of resources because of what had to be done and the amount of time we had."

The team members had to demand emergency discovery from the state, including depositions of top elections officials. They needed plaintiffs and an expert to estimate the number of voters affected. And the first hearing was just four months away.

As similar legal battles erupted in other states with similar laws, Pennsylvania's House majority leader bragged in June the voter ID law "will allow Governor Romney to win Pennsylvania." The legal team managed to secure key stipulations from state officials, who acknowledged they had no evidence of in-person voter fraud, which was the rationale for the law, and no reason to believe fraud would take place without the law.

It took two hearings and a Pennsylvania Supreme Court ruling, but ultimately a trial judge enjoined Pennsylvania from enforcing the law during the November elections. The team now seeks a permanent injunction.

To Gersch, the case followed in the tradition of his firm's pro bono representation of the targets of McCarthyism during the 1950s, and its role in securing the U.S. Supreme Court's landmark Gideon v. Wainwrightruling requiring counsel for indigent criminal defendants.

"The day I was approached, I had not given this subject any thought. As I got into it, it got more and more disturbing," Gersch said of the voting case. "You can't believe this is happening in America."