Lawyers Must Fight Voter Suppression This Election Season

Law360 (October 14, 2020, 4:46 PM EDT) --
CK Hoffler
CK Hoffler
Allyce Bailey
Allyce Bailey
African-American legal giant and civil rights legend Charles Hamilton Houston opined that "a lawyer [is] either a social engineer or a parasite on society." Simply put, we must prioritize using our legal acumen and our bar licenses for the greater good.

We have heard the phrase, "Your vote is your voice," tossed around during several election seasons. However, this year, the critical importance of ensuring that your voice is heard loud and clear is increasingly evident.

Irrespective of how the news reports on the issues, people of color know that three pandemics are plaguing our nation today — police brutality, voter suppression and COVID-19. Due to the disproportionate effect these issues continue to have upon minority communities, it is important for the legal community to not only bring awareness to these issues, but also to outline a clear strategy that may be used to tackle these issues head-on.

This election season is so important. Regardless of which box you check at the polls in November, it is undeniable that lawyers possess a unique skill set, knowledge base and sphere of influence that can be utilized to affect real change in society.

Voter suppression is a civil rights issue of which all people, not just those belonging to minority groups, should be concerned. By definition, voter suppression is the strategic effort to discourage or prevent certain voters from casting their vote in an effort to influence election results.

The present-day voter suppression tactics present a grave concern; unlike the apparent discriminatory and oppressive tactics utilized during the Jim Crow Era, modern-day voter suppression tactics tend to be more covert. But while the means may have changed, the discriminatory effects of voter suppression remain today. Burdensome ID requirements have replaced the Jim Crow era literacy test. The intimidating pit bulls outside of polling places have been replaced with hate groups disguised as impassioned political supporters.

Present-day voter suppression looks like the closure of the only Department of Motor Vehicles office in a minority area, increasing restrictions or access for minorities to obtain voter ID cards, and limiting the number of polls in minority communities. Voter suppression is failing to ensure there are enough voting machines or poll watchers in minority communities or purging voting rolls.

We only need to reflect on the amazing legacy of the late Justice Ruth Bader Ginsburg to truly understand election suppression today. Not only was she a fierce champion of women's rights, women's equity, civil rights, human rights, immigration reform and LGBTQ rights, during her tenure, she was the U.S. Supreme Court's most fervent advocate of voting rights.

Her impact on voting rights on this court was only exceeded by remarkable and stellar contributions of Justice Thurgood Marshall, who changed the landscape of civil, human and voting rights in this country. Nevertheless, Justice Ginsburg's crushing dissent in the 2013 decision in Shelby County v. Holder shall be remembered for generations to come as current voter suppression can be traced directly to its majority opinion, which is credited for much of the erosion of the Civil Rights Act.

As Justice Ginsburg said in her landmark dissent: "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." She further exclaimed: "The sad irony of today's decision lies in its utter failure to grasp why the [Voters Right Act] has proven effective." We must continue Justice Ginsburg's fight to combat voter suppression.

Every lawyer must give serious thought to how they can make a difference this election season and take advantage of opportunities presented to them to be a change agent. For instance, some states are offering lawyers continuing legal education credit for serving as a poll watcher. Several organizations have volunteer opportunities for lawyers, including the potential to lend your mind and efforts to any litigation that may result after the election. Post-election voter suppression litigation could include, among other things:

  • Challenges to provisional ballots;

  • Challenges to draconian identification requirements in some states;

  • Challenges to closing of polls at certain times, thus precluding some from voting;

  • Challenges to witness requirements in some states;

  • Voter intimidation challenges, for e.g., location of hecklers, groups and others who intimidate voters;

  • Challenges to social media platforms that do not have objective and nonpartisan screening of dissemination of information;

  • Challenges to the First Amendment's guarantee of freedom of speech;

  • Challenges to efforts to silence nonviolent protestors of election suppression; and

  • Challenges to efforts to prevent grassroots organizations from registering voters.

Law firms interested in joining the fight against voter suppression can contribute time to election protection efforts both virtually or in person by working an election protection hotline, participating in election protection seminars held by local organizations in your community, or serving as a part of a rapid response team surrounding Election Day.

Lawyers can even serve as boots on the ground as election protection lawyers on the day of the election. For instance, corporate or commercial lawyers could be engaged in protecting the right to vote by signing up to receive training and then participating in hotlines to answer questions, serving as hotline captains, or working with rapid response teams to provide state-specific research on issues.

Election protection lawyers protect the right to vote and work to fight election suppression. More specifically, they can:

  • Work on legal challenges and filings related to voter suppression;

  • Be part of virtual hotline coordination;

  • Speak in their communities and to organizations to educate others on the voting process; and

  • Serve as poll watchers (in person, if comfortable).

Additionally, with the COVID-19 crisis presenting its own unique challenges to the voting process, donations by law firms of gloves, masks and hand sanitizer would be a great way to make a meaningful impact.

This year, we suffered the loss of the civil rights great, Democratic Rep. John Lewis. Lewis served in the U.S. House of Representatives for Georgia's 5th congressional district from 1987 until his death in 2020. Lewis was at the helm of the first Selma-to-Montgomery march across the Edmund Pettus Bridge in Alabama and was also one of the 13 original Freedom Riders. 

He was famous for coining the term, good trouble. "Get in good trouble, necessary trouble," he would say, to encourage all those with breath in their lungs and knowledge of any injustice to do their part to stir things up in the right direction.

We implore lawyers to take some time to evaluate what good trouble they can stir up in their communities. There is so much for us to do and so many ways that we can contribute. It is not enough to merely be bothered by the injustices around us.

As Martin Luther King Jr. exclaimed, "Injustice anywhere is a threat to justice everywhere." Each of us has a sphere of influence that can be used to take action, to kneel for justice and stand up to fight.

CK Hoffler is the president of the National Bar Association and founder and CEO at The CK Hoffler Firm.

Allyce Bailey is chief of communications at the National Bar Association and an assistant city attorney for the city of Columbia, South Carolina.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organizations, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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