The windswept, sparsely settled plains of South Dakota are far from the posh law offices of Pillsbury Winthrop Shaw Pittman, but that is where many of the firm’s attorneys spent the days before the November presidential election.
“In the days leading up to the election, we had between a dozen lawyers and perhaps 18 lawyers in South Dakota doing voters’ rights training sessions on how to encourage voting,” said Greg Lembrich, an associate in Pillsbury’s New York office.
While Pillsbury Winthrop, active on the side of Native Americans in a dispute about closed polling places in a cash-strapped South Dakota county, likely traveled farthest afield, firms nationwide were inspired by the historic 2008 presidential election to devote pro bono time to protecting access to the voting booth. Lawyers went to court in several states on voter access issues, most frequently to prevent a voting reform law, the Help America Vote Act, from becoming a barrier to the ballot. The law required states to match voter rolls with another database, usually the registry of driver licenses, to create a more accurate list of voters, said Neil Bradley, associate director of the American Civil Liberties Union Voting Rights Project.
“The question is: How good a match do you need between the lists to stay on the voter roll? What if you use your middle initial on one list but not the other?” Bradley said. “There was a definite popularity this year for using the matches between voter registrations and drivers license to challenge voters. That was done in three or four states, and that hadn’t been questioned before.”
One such case was litigated in Colorado. A team of attorneys from New York’s Debevoise & Plimpton sued Secretary of State Michael Coffman, alleging that, in compiling a statewide voter list, officials had removed tens of thousands of voters from the roll less than 90 days before the election, in violation of the National Voter Registration Act. Common Cause of Colo. v. Coffman, No 1:2008cv02321 (D. Colo.).
“The firm partners and associates are interested in voter protection issues,” said S. Gale Dick, an associate in Debevoise & Plimpton’s New York office who was active in the litigation. The two sides agreed to allow anyone stricken from the voter rolls within 90 days of the election to vote by provisional ballot.
A team of 11 lawyers from O’Melveny & Myers drafted and filed two separate amici briefs before the U.S. Supreme Court challenging the constitutionality of Indiana’s voter identification law. The briefs argued that the law, which required voters to present picture ID at their polling places, placed disproportionate burden on less-affluent and minority voters.
“As lawyers, we want something that engages our heart, our passion, as much as our intellects,” said David Lash, an O’Melveny litigator and managing counsel for pro bono and public interest services. “Pro bono cases like this are a priceless opportunity to build pride in the profession. A lot of people believe this is a lawyer’s highest calling.”
This time, the other side won: The Supreme Court voted, 6-3, to uphold the Indiana law. Crawford v. Marion County Election Bd., No. 07-21.
In another case, however, attorneys from Los Angeles’ Gibson, Dunn & Crutcher successfully used California law to block an at-large election of school board members that diluted minority representation. George Brown, a partner in the firm’s Palo Alto, Calif., office, said Gibson Dunn sued the Madera Unified School District, claiming that the district — with 88% Hispanic students but just one Hispanic member on its seven-member board — was violating the California Voting Rights Act. “We hired an expert demographer to help us understand the voting patterns and show the racially polarized voting pattern caused by electing all the school board members at large instead of allowing district elections,” Brown said.
On Sept. 23, just weeks before the November election, Madera County Superior Court Judge James E. Oakley issued a preliminary injunction blocking the election, the first such injunction issued under the California law.
“The district has taken steps to convert to a district voting system [that] we believe will result in four of seven districts having a Latino majority,” Brown said. The firm plans similar suits challenging at-large elections in many more of California’s 1,000 school districts.
In South Dakota, Pillsbury Winthrop attorneys only had to threaten a federal lawsuit to get results. Mellette County is home to just slightly more that 2,000 people spread across 1,300 square miles and in the best of times has only four polling places for a general election. The county, claiming budget problems, was intent on closing the three polling places on the Rosebud Reservation, leaving just one voting place, in White River, S.D.
“We suspected the county commissioners were looking to decrease Native American turnout,” said Lembrich, who has worked extensively for Native American communities in South Dakota.
“We were not trying to keep people from voting,” said Jerry Schwarting, the county auditor, who estimated that keeping all four polling places open cost about $10,000. “We’re broke. We’re belly-up. We’re borrowing from the road fund to run the county.”