SACRAMENTO — For most of us, the general election ended on the night of Nov. 4. For attorneys like Steven Churchwell, the campaign was just beginning.
The DLA Piper partner was retained by the campaign of Charlie Brown, the Democratic candidate in California’s Fourth Congressional District (.pdf). As the vote count trickled in from the nine-county, Northern California district on election night, it became increasingly clear to Brown and his Republican opponent, Tom McClintock, that the incredibly tight contest would not be decided for days, if not weeks. That’s when the lawyers were called.
In the 10 days since then, Churchwell has traveled among the mostly rural county seats in the Fourth District, watching clerks sift through mountains of uncounted ballots and studying absentee vote signatures to ensure they match those on registration cards. It’s long, tedious work that’s often only interrupted by brief trips to the vending machine in search of lunch.
“It’s probably not what my mom envisioned when I went off to law school,” said Churchwell, who served as general counsel to the state Fair Political Practices Commission between 1993 and 2000. “But it is such an important part of our democratic process.”
Churchwell belongs to a small universe of attorneys in California who specialize in election law. Armed with knowledge of the state Elections Code and the federal Help America Vote Act, they head for county elections offices when contests are too close to call. Churchwell is paid for his time, though some do it pro bono.
Everyone remembers the sight of observers squinting at hanging-chad ballots in Florida during the contested 2000 presidential election. But even in a state as reliably blue and chadless as California, there’s always plenty of election legal work given the hundreds of state and local races.
“For most people, elections are over on the evening of the first Tuesday in November,” said Lance Olson, managing partner of Olson Hagel & Fishburn in Sacramento. “For me it’s not over oftentimes until early December.”
In addition to Olson Hagel, other attorneys and firms traditionally involved in election work include Los Angeles attorney Stephen Kaufman; Remcho, Johansen & Purcell; Nielsen, Merksamer, Parrinello, Mueller & Naylor; and Bell, McAndrews and Hiltachk.
On Thursday, Olson was on his way to Santa Barbara, where the state’s 19th Senate District race between Democrat Hannah-Beth Jackson and Republican Tony Strickland was separated by several hundred votes with thousands of ballots left to count. In addition to representing Jackson, Olson said he was consulting with campaigns in tight contests in Stanislaus, Sonoma, San Francisco and Fresno counties.
While campaigns usually rely on a corps of volunteers to observe vote counts, attorneys are dispatched to ensure the process follows election laws. If it doesn’t, a campaign or a candidate may have documented grounds for challenging the results. Attorneys are also on hand to advocate for their clients, lobbying clerks to count — or maybe discount — provisionally cast ballots.
Olson said that last week he sent a “sternly worded letter” to the Ventura County counsel after the registrar of voters threatened to keep observers at least 15 feet away from the count. After a discussion with lawyers, the registrar relented, and the vote-watchers got seats closer to the action.
“It’s good to let the registrars know that there’s someone present who knows what the rules are,” Olson said.
Registrars’ receptiveness to lawyers in the counting room varies, attorneys said. Stephen Weir, Contra Costa County’s clerk-recorder, said he accepts them as part of the process, although he wishes they would show up for his department’s pre-election security and accuracy checks, not just when the vote tallies grow tight and they’re looking for reasons to challenge the outcome.
“You have that teachable moment, and it’s hard for them to ignore that you have the proper procedures in place,” Weir said. Instead, “The hoverers come when the race grows close and there are few ballots left, and there’s still a faint glimmer of hope.”
Weir was part of an election challenge in 1995 when a school measure appeared to pass by a handful of votes. Lawyers filed suit after it was discovered that five voters who had submitted absentee ballots also cast ballots at the polls on Election Day. A judge eventually ordered the number of “yes” votes reduced, and the measure failed.
“It’s rare,” Weir said of the challenge, “but it’s happened.”
Churchwell spent Tuesday, a Veteran’s Day holiday for many, in Placer County. For almost six hours, he and two congressional observers, a lawyer for the McClintock campaign, the county clerk and an elections employee crowded around a table to review signatures on absentee ballots. The atmosphere, he said, was collegial.
At the end of the day, the campaigns were a bit closer to the final outcome, but no one was ready yet to declare victory. As of Thursday afternoon, McClintock was clinging to an 815-vote lead out of 329,607 votes counted so far, according to the Secretary of State’s office. With thousands of ballots still to be tallied, Churchwell doesn’t know when his work will end.
“I love it. I worked on my first campaign for my state senator when I was 15 years old, stuffing envelopes,” he said. “I think it’s a great spectator sport. I just don’t want to be on the field.”