Every four years, elections become a particularly hot topic at a national level.  Coinciding with the presidential election cycles, attention focuses on the magnitude of the obstacles faced by the underrepresented and disenfranchised during these important national elections.  Yet, problems with elections at a national level are generally representative of wider and pervasive systemic legal issues throughout the United States at the state and local level.   Pro bono lawyers are at the forefront of legal efforts during and in-between major national election cycles to cure legal flaws in the election system which threaten the accuracy, legitimacy, and fairness of the voting process.

The run-up to the 2008 election cycle comes on the heels of a particularly volatile time.  The closely contested 2000 and 2004 presidential elections underscored the importance of voter enfranchisement and the maintenance of lawful and cleanly-enforced voting policies.  The 2006 congressional debates over the future of the Voting Rights Act of 1965 (VRA) reignited pressures to either renew provisions providing protection for historically-disenfranchised voters or to allow these provisions to expire altogether.  Meanwhile, states are independently grappling with the proper application of the 2002 Help America Vote Act (HAVA).  HAVA was inspired by the narrow 2000 presidential election and the controversies that surrounded the use of outdated and difficult to use equipment, most prominently in select voting districts in Florida.  Among its stated purposes, HAVA was intended “to establish minimum election administration standards for States and units of local government with responsibility for the administration of Federal elections.”

Elections and the legal issues that surround them are fertile ground for lawyers and law firms looking to develop or expand their pro bono practice.  Lawyers have roles to play at all levels of the election protection and reform processes on Election Day and year-round – crafting legislation, enforcing voting laws, researching legal developments, monitoring the election process for unlawful behavior, interfacing between public interest groups and government officials on legal issues, representing eligible individual voters, and aiding local, state, and national organizations in bringing impact litigation to challenge unfair election laws.

Many pro bono lawyers partner with civil liberties organizations to protect the First Amendment rights of protestors and ensure lawful policing of protests outside political conventions.  Others volunteer their office space and telephone lines for the use of election protection hotlines, staffed by lawyers (and sometimes other staff) and coordinate with lawyers on the ground in each state to respond to questions, offer legal advice, assist with litigation efforts, or interface with elections officials.  Firms and legal departments may also consider approving Election Day as a day for lawyers and other staff to take time off from their regularly-scheduled responsibilities to work with election protection programs to monitor, report, and potentially litigate unlawful election activity.  Still others pair with non-partisan voters’ rights organizations throughout the year to bring impact litigation, challenge election laws and litigate cases under the Fourteenth and Fifteenth Amendments of the United States Constitution, the VRA, and HAVA.

Sample Pro Bono Opportunities

Protests and Political Conventions
The national conventions for the major political parties are historical hotspots for protest activity.  Lawyers can volunteer their time as legal observers to protect First Amendment rights by contacting local and national civil rights groups regarding coordinated legal observation efforts.  The Democratic National Convention is scheduled for August 25-28, 2008 in Denver, Colorado.  The Republican National Convention is scheduled for September 1-4, 2008 in Minneapolis-Saint Paul, Minnesota.  Examples of legal observation efforts at past conventions include:

• The American Civil Liberties Union and the New York Civil Liberties Union piloted a successful Police Monitoring Project as a component of their Protecting Protest campaign at the 2004 Republican National Convention in New York City.  The Police-Monitoring Project observed NYPD tactics used to police convention demonstrations.  The supervisory team of senior staff attorneys, organizing staff, and pro bono attorneys reviewed the reports from the field to determine whether legal action was warranted.
• The American Civil Liberties Union won a legal battle for convention protesters at the 2000 Democratic National Convention in Los Angeles to establish a protected “free speech” zone outside the convention center.  Pro bono attorneys working with the ACLU were later present when police used pepper spray, rubber bullets, and other tactics to disperse a large crowd and a riot erupted.

Elections
Election Day presents an opportunity for lawyers to volunteer their time to facilitate democracy in action by helping to ensure the legitimacy of the voting process through access to all lawful voters.  Lawyers monitor polling places for illegal activity, update legal voting materials, educate voters about their legal rights, communicate with local and state election officials regarding legal issues, provide legal support to poll monitors, staff voter protection hotlines at state and national call centers, and bring litigation to protect voters’ rights.  Most Election Day programs provide at least brief training (some of which may allow for CLE credits) covering the VRA, HAVA, local election law, and methods for recognizing and documenting voting problems.  The following are examples of non-partisan Election Day election protection programs:

• The National Campaign for Fair Elections, a program of the Lawyers’ Committee, is the nation’s largest non-partisan election monitoring program, coordinating the toll-free number 866-OUR-VOTE.  Its Election Protection (EP) Coalition is a partnership of the Lawyers’ Committee for Civil Rights Under Law, the National Bar Association, the NAACP, and many others.  In 2004, EP included 8,000 legal volunteers.  The 2008 elections are anticipated to be EP’s largest effort to date, with a goal of involving 10,000 pro bono lawyers from law firms and legal departments.  In addition to conducting election protection activities in the 2008 November elections, Election Protection ran a limited program for the February 5, 2008 “Mega Tuesday” primary.
• Proskauer Rose LLP was one of the law firms that participated in the Election Protection Program in 2006.  Over seventy-five Proskauer attorneys, legal assistants, and other personnel staffed phone lines in their New Orleans, Los Angeles, Washington, D.C., Boca Raton, Fla., New York, and Newark, N.J., offices to assist voters and lawyers on the ground nationwide.  Specifically, Proskauer attorneys in Los Angeles and New York aided local Ohio attorneys with research and drafting, while the New York and Newark offices assisted Ohio callers with the state’s then-new voter I.D. requirements as well as standard issues such as problems with new voting machines, where to vote, and casting provisional ballots.
• The Asian American Legal Defense and Education Fund organizes a major Election Day monitoring effort, focusing on poll sites with large concentrations of Asian-American voters in 12 states:  New York, New Jersey, Maryland, Virginia, Massachusetts, Pennsylvania, Rhode Island, Michigan, Illinois, Texas, Hawaii, and California.  Attorneys are asked to provide at least three hours of pro bono legal services on Election Day and typically monitor polling places in counties covered under the VRA, to see if they are in compliance with its language assistance provisions and also to observe anti-Asian voter discrimination and violations of HAVA, such as improper requests for personal identification.
• Equip for Equality, an Illinois civil rights group for people with disabilities, operates a Voting Rights Project to eliminate barriers to voting, including barriers to privacy and independence in voting.  The activities of the Voting Rights Project include: participating in the Illinois Disability Get Out the Vote Project, serving on the Illinois State Planning Committee to develop a plan to implement HAVA in Illinois, running a toll-free Voters Help Line to answer questions regarding voting problems experienced by voters with disabilities, offering free seminars for people with disabilities about their voting rights, training election judges on voting rights and disability awareness, and advocating for full voting place accessibility, including physical and non-visual access.
• Lawyers interested in Election Day pro bono opportunities at a state and local level may also wish to contact their state and/or county elections commissioners, who will likely be able to put them in touch with localized voter protection efforts.

Impact Litigation to Cure Systemic Election Issues
Lawyers may coordinate with local, state, and national organizations to bring impact litigation to challenge systemic problems with elections.  These pro bono efforts are not limited to Election Day, but rather take place year-round, and are designed to cure issues that have caused legal problems in past elections or are anticipated to pose legal problems in the future.  Examples of potential topic areas for litigation include:  unfair voter identification requirements, voting rights of the homeless, voting rights for persons previously convicted of a felony, voter intimidation, discriminatory practices in the purging of voter rolls, failure to meet requirements of the VRA, failure to comply with HAVA, unfair processes for recounts, and inadequacy of training requirements for polling place workers.

The following are recent examples of law firms partnering with non-partisan organizations to protect and enforce voting rights:

• Paul, Weiss, Rifkind, Wharton & Garrison, LLP lawyers and the Brennan Center for Justice at NYU School of Law successfully partnered to fight election procedures with the potential to disenfranchise thousands of eligible voters nationwide.  A federal district court in Seattle ruled that a Washington matching statute requiring the Washington Secretary of State to refuse the registration of voters whose applications do not exactly match information maintained in other government databases violates the VRA and HAVA.
• Weil, Gotshal & Manges, LLP lawyers partnered with the Asian American Legal Defense and Education Fund (AALDEF) to bring a lawsuit alleging that the New York City Board of Elections failed to comply with Section 203 of the VRA, which requires New York City and the Board of Elections to institute certain mechanisms and practices to assist limited English-proficient Chinese-American and Korean-American voters in New York City.
• Kramer Levin Naftalis & Frankel, LLP lawyers partnered with the Advancement Project and the Brennan Center for Justice at NYU School of Law to bring a lawsuit, League of Women Voters v. Browning, in an ongoing effort to block a Florida law restricting non-party voter registration drives through fines for failures to meet certain voter registration deadlines.
• Farella Brown + Martel, LLP lawyers partnered with the Lawyers’ Committee for Civil Rights in 2006 to represent California Latino residents of Kings and Tulare Counties in a voting rights case challenging a school district election system that failed to produce an elected Latino official in twenty years.  The case involved a newly-enacted law barring at-large elections, which typically disenfranchise minority populations.  Because of the lawsuit, the school board agreed to allow district-based elections, which more fully enfranchise Latino voters.
• Volunteer attorneys partnered with Project Vote and Advancement Project in 2006 to win a preliminary injunction challenging a Georgia state regulation preventing photocopying completed voter registration applications as well as requiring completed voter registration forms to be sealed prior to acceptance by any voter registration group.  A federal judge ruled that the law violated the First Amendment rights of voter registration groups.
• Pro bono attorneys partnered with VoterAction in 2006 to successfully challenge the Colorado Secretary of State’s certification of electronic voting systems that lacked the minimum security standards necessary to ensure the reliability of a vote conducted using the systems.

What Counts?
The Law Firm Pro Bono Challenge℠ definition of pro bono includes a broad range of legal services, but does not encompass non-legal community service or other volunteer activities (see Principle 7), since one of its primary goals is to narrow the gap between the need for legal services and the limited legal resources available to meet those needs.  Challenge Principle 7 includes in the definition of pro bono “the provision of legal assistance to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights. . .”  Although the Challenge places great emphasis on meeting the needs of low-income persons, this emphasis is not meant to devalue other important work undertaken to protect and enforce public and individual rights.  The threshold determination in deciding whether particular hours count toward the Challenge is whether the activity involves the provision of legal assistance, as opposed to some other type of volunteer effort.  This threshold test can be applied to a range of election-related activities which benefit the community and are laudable, but may not be cognizable as pro bono time for purposes of the Challenge.   For example, time spent by a lawyer as a legal observer protecting First Amendment rights during political conventions and protest marches, time spent performing legal research, and time spent litigating voting rights issues could qualify as providing legal assistance and could be considered pro bono work for purposes of the Challenge.  Acting as a general volunteer or marshal for safety purposes or time spent as part of a “get-out-the-vote” effort, however, would most likely not meet the threshold requirement of provision of legal services, and, therefore, would not count.

Many noble volunteer activities related to elections do not fall within the parameters of the Challenge℠ definition.  Attorneys, of course, may still elect to participate in these and other efforts and designate Election Day as a day of volunteerism, recognizing the symbolic importance of the day as a time for civic engagement and community involvement, without placing constraints on the choice of volunteer activities, so long as the hours reported to the Law Firm Pro Bono Project by Challenge Signatory law firms reflect only Challenge-qualifying pro bono work.

Questions regarding specific election-related volunteer activities and the eligibility of various potential clients are fact-specific and best answered on an individualized basis.  Should you have questions about particular activities, please do not hesitate to contact the Law Firm Pro Bono Project.  (“What Counts” questions should be submitted in writing to the Project.)

Helpful Websites:

Advancement Project’s Voter Protection Program
http://www.advancementproject.org/ourwork/power-and-democracy/voter-protection/index.php

American Civil Liberties Union – Voting Rights
http://www.aclu.org/votingrights/

Asian American Legal Defense and Education Fund (AALDEF) – Voting Rights
http://www.aaldef.org/voting.php

Election Reform Information Project
www.electionline.org

Federal Election Commission
http://www.fec.gov

Lawyers’ Committee for Civil Rights Under Law – Voting Rights Project
http://www.lawyerscommittee.org/2005website/projects/votingrights/votingrights.html

NAACP Legal Defense and Educational Fund, Inc. – Voter Protection
http://www.naacpldf.org/issues.aspx?ProgramCategory=2

National Association of Secretaries of State
http://www.nass.org

National Campaign for Fair Elections (NCFFE)
http://www.ncffe.org

NCFFE Election Protection Program
http://www.nationalcampaignforfairelections.org/pages/election_protection

The National Association of State Election Directors
http://www.nased.org

United States Election Assistance Commission
http://www.eac.gov/index_html1

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For more information about locating election-related pro bono opportunities or other individual assistance, please contact the Pro Bono Institute at probono@probonoinst.org, 202.729.6699.

We are grateful for the assistance provided by Pro Bono Institute intern, Russell Husen.