Franchise Players
In last year's general election, Am Law 200 firms took lead roles in protecting the right to vote.
The American Lawyer
By Francesca Heintz
July 01, 2009
Allegations of voting irregularities and accounts of voters improperly purged from voter logs marred the 2000 and 2004 presidential elections. In 2008 Am Law 200 lawyers sought to ensure that it didn't happen again.
"Coming into this election season, we wanted to put together a voting fire department," says Debevoise & Plimpton partner James Johnson. "We didn't know where [an electoral dispute] would hit, but we wanted to be ready when it did." Johnson—who is chair of New York University's Brennan Center for Justice, which has made voting rights one of its signature issues—says he pushed his firm to begin its election efforts early in the 2008 election cycle.
Generally, firms' efforts worked, says Jon Greenbaum, legal director of the voting rights project at the Lawyers' Committee for Civil Rights Under Law. "There was a lot going on nationwide, and compared to the 2004 election cycle, the litigation this time around went extremely well," he says.
Law firms reported donating more than $30 million in pro bono time and out-of-pocket expenses in the 2008 election cycle, according to the Lawyers' Committee. Much of that effort went to poll monitoring and staffing hotlines.
Other work involved litigation, much of it in key battleground states. Three of the states in which Am Law 200 firms played a leading role were Colorado, Michigan, and Ohio.
The impetus for Colorado's litigation was a New York Times story published in early October saying that 37,000 names had been purged from voting rolls in the months leading up to the election. Working with the Brennan Center and the Advancement Project, Debevoise filed suit in Denver a few weeks later on behalf of a coalition of voting rights groups, who claimed that the state had violated the National Voter Registration Act's "90-day blackout rule." The rule bars states from purging voter rolls 90 days before a state, national, or primary election. The suit also challenged Colorado's "20-day rule," which strikes voters from the rolls if voter registration documents mailed to them are returned as undeliverable after 20 days.
A Debevoise team led by associate S. Gale Dick flew to Denver at the end of October to try to work out an agreement with state election officials. After preliminary hearings, the state agreed to allow everyone purged under the two rules to vote by provisional ballot and institute additional procedures to make sure their votes were counted. The firm has since filed an amended complaint to get those voters permanently reinstated.
Purged voter rolls were also an issue in Michigan, where Matthew Lund, a partner in Pepper Hamilton's Detroit office, working with the local chapter of the American Civil Liberties Union, wrangled with state election officials. One issue, affecting an estimated 5,500 voters, involved people being taken off voter lists if their registration cards were returned to the Board of Elections as undeliverable. A second involved the state's automatically purging voters if they applied for an out-of-state driver's license. "As we've been seeing in the Minnesota Senate race, the most significant elections can be ultimately decided by a few hundred votes," Lund says. "Every vote truly matters." A judge granted Lund's motion for a preliminary injunction on the first issue, allowing the purged voters to cast their ballots in November. The case is currently on appeal in the U.S. Court of Appeals for the Sixth Circuit. The second issue was not ruled on because of lack of standing.
In Ohio, Columbus's Porter Wright Morris & Arthur has been battling state election officials since 2006 over a voter identification law. The measure bars voters from casting regular ballots if they don't have state-approved identification, which in most cases requires a permanent address. Instead, those voters must cast provisional ballots. (In the 2006 election, Ohio voters cast the second-largest number of provisional ballots in the country.) In order to vote on a regular ballot without a permanent address, a voter must pay for a state identification card.
In October 2006 Porter Wright filed suit on behalf of the Northeast Ohio Coalition for the Homeless, alleging that the law was unconstitutional. "This law puts our poorest citizens in a second-class voting status," says partner Caroline Gentry. "It poses an unconstitutional poll tax because you have to pay for required identification in order to vote."
The case has progressed in fits and starts, but it heated up again last October, when Gentry filed a preliminary injunction motion to force the state to issue guidelines regarding the counting of provisional ballots. Gentry says the provisional ballot issue is of big concern for the homeless, who often don't have state-approved identification. Many homeless people are turned away from polls because county election officials are unclear about when to issue provisional ballots, she says. After a court hearing, the state agreed to a consent order specifying how those ballots would be counted. Gentry says she expects the broader constitutionality issue to be argued sometime this summer.
Lawyers say that the payoff for the thousands of hours spent on last year's ballot access work has been clear. "It's been time-consuming, and it requires a lot of analysis," Gentry says. "But at the end of the day, we're protecting the right to vote."
