By Cara Bayles, Annie Pancak and Steven Trader | November 4, 2020, 1:15 AM ESTTuesday marked the final day of voting in 2020, and across the country, attorneys worked to safeguard one of the most contentious and litigated elections in U.S. history.
Those attorneys were volunteer poll workers, ushering voters into their polling places, handing them their ballots, and guiding them through the many possible hiccups in the process. They were poll watchers, guarding that process against partisanship and inequity. Lawyers answered hotline calls from citizens who didn't know where to vote, who were waiting in line for hours, or were being threatened or denied their constitutional right to cast ballots. And litigators gathered in virtual "war rooms," ready and waiting to file emergency petitions should anything go wrong.
Throughout the day, Law360 followed the sun across the continent, from when the first polls opened on the East Coast to when the last ones closed in the West. Here are the stories of attorneys on the front lines of election protection.
4:45 a.m. | New York City: Early Start For Law Student Volunteers
A group of Columbia law students pose in front of a van before heading to Philadelphia, where they are volunteering as poll observers. (Photo courtesy of Sam Fishman)
Law schools around the country made Election Day a holiday, and students didn't waste the opportunity. Many volunteered, both in states where their schools were located and in neighboring jurisdictions.
9:30 a.m. | Pittsburgh: 'Busy Morning' At Reed Smith Command Center
Reed Smith counsel Jeffrey Wilhelm said it was been a busy morning at the firm's in-person command center in Pittsburgh. Reed Smith, BNY Mellon, the ACLU and others teamed up to answer phone calls from election protection field volunteers across Pennsylvania.
It was still twilight at 6:30 a.m. when Reed Smith LLP counsel Jeffrey Wilhelm showed up to the firm's Pittsburgh office, which would run as an election protection "command center" until the polls closed at 8 p.m.
"The operation begins in the dark and ends in the dark," Wilhelm quipped.
But a flurry of activity kept his team wide awake for the first few hours of Election Day.
Running on caffeine and adrenaline, a small staff of about 20 volunteers answered hotline calls from confused or frustrated voters and got reports from field volunteers who were monitoring the polls.
That morning, the team of attorneys dealt with what Wilhelm called "typical Election Day hiccups." In Philadelphia and Allegheny counties, there were long lines at the polls. A few machines weren't scanning ballots properly, he said, and not all the polling stations opened on time at 7 a.m.
But a new sticking point this year were complications caused by mail-in ballots. Some voters requested them, then decided to vote in person. The voter hotline fielded many questions about what to do in this scenario, and advised voters to bring their mail-in ballots and surrender them before voting, or, if a voter didn't have the mail-in ballot, to vote in person by provisional ballot.
Reed Smith partnered with the American Civil Liberties Union and the NAACP to host the command center in its Pittsburgh office, which has been mostly shuttered since the coronavirus pandemic hit in March. It was surreal not only to have other people there, Wilhelm said, but also to be so spread out for what was usually a tight-knit operation.
"I am sitting with five other individuals in a very, very, very large conference room. We're all wearing masks and socially distanced," he said. "This is a new age for us. Normally, we have the command center in one room; now, we're spread out in a bank of conference rooms to maintain social distancing."
11:30 a.m. | Atlanta: Machine Failure Leads To Long LinesGeorgia's new election machines were supposed to streamline voting. Instead, they complicated the process, according to Harold Franklin, a King & Spalding LLP partner based in Atlanta, who was in charge of nonpartisan election protection efforts in Georgia.
Here's how the process was supposed to work: Poll workers were given tablet computers, called poll books, which they would use to check in voters. They then were supposed to use those devices to encode plastic cards, which voters could scan at the electronic voting machines. Once they cast their votes, the machines would print out ballots with all their selections, which voters could then feed into scanners.
But on Tuesday morning in Morgan and Spalding counties, the tablets malfunctioned. Calls poured in to the voter protection hotline that Franklin's team was managing.
"They were not able to encode the cards, so then voters were given paper ballots. But with the number of voters affected, they ran out," Franklin said. "We've gotten lots of accounts from voters who have been affected. Hundreds of people in line and unable to vote."
Franklin said he'd been in touch with the Secretary of State's Office and local elections officials to see how they would remedy the problem. He'd like to resolve this without having to resort to litigation, though he hasn't ruled that out.
The remedy, he said, ought to reflect the problem.
"Once we confirm the amount of time at issue, that would let us know how long polling hours should be extended," he said. "If it was a two-hour delay, then voters are entitled to a 12-hour window. So all those people who were in line who waited for hours and were not able to vote, some of whom had to leave and go to work, they should have an opportunity to return."
The Georgia Secretary of State's Office did not respond to a request for comment.
12 p.m. | Miami: High Early Voter Turnout
Attorney D'Bria Bradshaw said she saw the highest voter turnout in the three elections she has worked in Miami-Dade County.
South Florida saw an early surge of in-person voters, said D'Bria Bradshaw, an e-discovery attorney at Consilio Services, who worked as a poll inspector in Miami-Dade County.
"This is the most that I've seen," Bradshaw said. "And this is my third time working this precinct in Miami-Dade County."
1 p.m. | Minnesota: Protecting Voters Via ZoomDorsey & Whitney LLP partner Clint Conner settled into his home office chair at around 5 a.m. and fired up the call center system that the firm is running today to help voters in Minnesota and other neighboring states navigate any issues at the polls.
Working in four-hour shifts, Conner and three of his Dorsey colleagues led a team of at least 50 volunteer attorneys and paralegals fielding calls from Minnesota, Kentucky, Louisiana and Missouri until polls closed at 8 p.m.
Dorsey & Whitney partner Clint Conner, working from his home office, fielded calls from voters in Minnesota, Kentucky, Louisiana and Missouri.
Conner has described the issues in Minnesota that morning as typical election concerns, including a limited number of polling machines not working properly. The team also fielded calls from people who mailed an absentee ballot but discovered that it had not yet been received or processed, Conner said.
Missouri, particularly the St. Louis area, also reported some extremely long wait times at polling places and potentially some misleading information from officials there, so Conner said the team would keep a close eye on the situation as the day progressed.
Voter intimidation had not been too much of a problem by noon that day, and while COVID-19-related questions had been frequent, Conner said most polling places had been carefully handling those issues.
During a normal election year, Conner and his colleagues would be manning the call center from the firm's Minnesota-based office, but this year due to the pandemic, everyone was working from home, coordinating on Zoom, and trying to keep up the collegial spirit as best they could.
"Certainly, nothing compares to being in the war room with other people and going through it all together, it's just a lot more energy there," Conner said. "This is a bit more complicated; here, you're dealing with different chats, things fly so quickly that the text is gone in a short period of time. But there's still certainly a lot of energy and camaraderie, just in a different kind of way."
2 p.m. | San Francisco: Festive Atmosphere And No Lines
Stanford law students Anais Carell (left) and Mariah Mastrodimos (right) said they were "pleasantly surprised" at the four polling places they visited in San Francisco.
At midday on the West Coast, Stanford law students working as poll monitors in San Francisco said there was a celebratory atmosphere in the city. Like Columbia and other law schools around the country, Stanford gave students the day off, encouraging them to volunteer.
2:30 p.m. | Albuquerque, New Mexico: Zoom War Room
Maureen Sanders (left) and Julio Romero (right) led a Zoom "war room" for Democrats in New Mexico.
A software issue preventing provisional ballots from being printed. A police officer parked outside of a polling station. A question about whether a caretaker dropping off a ballot for someone else needed to verify their identity.
About 20 attorneys, led by Julio Romero of Martinez Hart Thompson & Sanchez PC and Maureen Sanders of Sanders & Westbrook PC, fielded questions on the minutiae of voting for the Democratic Party's election protection team in New Mexico Tuesday morning.
The attorneys, who included private firm lawyers, a law professor and a prosecutor, took calls from voters and field workers, advising them and sometimes reporting their concerns to county clerks.
The early morning was hectic with "opening glitches" caused by new equipment trotted out for Election Day and new poll workers who were unfamiliar with some of the rules, Sanders said, but by 10 a.m., most of the calls were questions about ballot drop-offs, printer glitches and police officers parked outside polling stations.
Reports of law enforcement near the polls were not unusual, Sanders said. In fact, she was surprised that there weren't more calls coming in from the southern part of the state.
"There are some people that believe that the presence of police officers at polling places would suppress the vote, particularly in those communities which have a high immigrant population," she said. "Our laws are pretty clear that law enforcement should not be at polling places unless they are there to vote, and then leave immediately. It's something we keep a pretty good eye on."
3:30 p.m. | Pennsylvania: Most Common Call Is About Mail-In Ballots
Reed Smith partner Glenn Mahone, working at the firm's in-person command center in Pittsburgh, said the most common call he received was about mail-in ballots.
At the Reed Smith command center in Pittsburgh, partner Glenn Mahone said attorneys had been "fairly busy" and that the most common call was about confusion over how to vote in person if you were already sent a mail-in ballot.
Despite mail-in ballot questions, volunteers at polling locations reported an overall relaxed atmosphere.
"Glad to report we are all seeing relaxed and positive vibes," said Sam Fishman, a second-year law student at Columbia, who was volunteering as a poll observer in Philadelphia. "Also, it's beautiful voting weather all day … always sunny in Philadelphia."
4 p.m. | New York: Calm And Quiet In Staten IslandAdrienne Ward, a partner at Olshan Frome Wolosky LLP in New York and a longtime member of the New York Democratic Lawyers Council, worked as polling judge in New York's Staten Island borough, and on Tuesday afternoon, it had been a pretty peaceful day.
"Boring is good," Ward quipped. "The goal is for the job to be really boring."
Ward started her shift at 2 p.m. and would stay until the last of the voters cast their ballots.
An experienced poll site manager and a socially distant and organized setup led to few if any complications, Ward said. She started her shift by making sure that the outside of the polling place was well-marked and the 100-foot campaign barrier was being adhered to, then proceeded inside to introduce herself and find a comfortable place to sit and keep watch.
"The real place is the intake table, where people are logging in the voters, that's what you really want to observe, because that's where things like challenges can take place," Ward said. "But I didn't see anyone having a lack of success in voting."
5 p.m. | Dallas: Pandemic ProblemsA woman in Dallas was sick with COVID-19, had the doctor's note to prove it, and wanted her brother to cast her emergency ballot for her. But the poll workers wouldn't let him. They were trying to get her to vote curbside instead.
It was Jane Pennebaker's first hotline call on Election Day, and the New York-based Simpson Thacher LLP associate gamely advised the would-be voter.
Listen to Simpson Thacher associate Jane Pennebaker answer a call on the 866-Our-Vote voter protection hotline. The excerpt has been edited for clarity and the caller's voice has been muted.
"You do have the right to the emergency absentee ballot, so you can demand that from her, speak directly with her supervisor, or if you're comfortable doing the curbside voting, you can consider doing that." she said. "You can say, 'I have the right to this ballot. I have the proper documentation.'"
The coronavirus has impacted voting efforts in Texas, where there's been an uptick in new COVID-19 cases over the past two weeks, according to John Bennett, one of the leads for Simpson Thacher's call center.
"The emergency absentee ballot has been a big issue in Texas," he said. "There are a number of people with COVID trying to track down doctors who are able to sign this for them before the election so they can get this in. Because folks who got sick last week can't go out and vote."
But while in theory, Texas did have an emergency option for COVID-positive voters, fear of contracting the potentially deadly disease couldn't be used as an excuse to vote absentee in Texas.
That intimidated some elderly and immunocompromised would-be voters, and the hotline fielded several calls from fearful citizens. There was no statewide mask mandate in Texas, but election protection field workers tried to coax election officials to at least enforce social distancing, Bennett said.
Houston had offered drive-thru voting sites to assuage those fears. That solution was the subject of a lawsuit by Republicans, who sought to throw out 127,000 ballots cast from cars in the Democratic-leaning county. The lawsuit failed in federal court, with the Fifth Circuit denying an appeal on Monday. But that evening, county officials announced they would close nine of its 10 drive-thru locations.
"The drive-thru voting was intended to make the people who were nervous about COVID able to go out and vote in a way they would feel more comfortable with," Bennett said. "The closure of those sites probably led to folks who otherwise would have gone out to vote not voting. Hopefully, it didn't, but that's a likely result."
7:30 p.m. | Pennsylvania And Texas: Relative Calm As Voting Wraps UpWhen Jennifer Levy, a partner at Kirkland & Ellis LLP, logged in for her shift this afternoon fielding questions from Pennsylvania voters, she was mentally preparing for the worst.
"Today in particular, we were bracing for a tornado," said Levy. "But, it's actually been a mild, steady stream of calls and a lot less chaotic than I would have thought."
Levy, along with Kirkland partner Vlad Kroll, were just two of many attorneys from the firm who volunteered to man a firm-sponsored hotline and help guide voters through any issues arising at the polls.
Kroll, who worked out of his home in San Francisco and fielded calls from Southern California and Texas, experienced a similar calm. In election years past, his day would start with a flurry of calls from voters who'd missed the registration window, but this year the folks reaching out seemed more well-informed, Kroll said.
"If you try and extrapolate from that maybe it means that people were paying attention and knew they had to register early and that messaging made it across, that in light of COVID and this election just not being like other elections, people were just more interested in voting."
The most frequent question raised to Kroll came from Texas voters confused about curbside voting. And on a day where Levy thought voter intimidation would be a major issue, she instead found herself helping Pennsylvania voters with absentee ballots most often.
"In past election years when I was manning helplines, rarely would you get a question involving a mail-in ballot, and this year easily half the questions I've gotten on my shifts have involved mail-in ballots, and I think it's just reflective of the fact that so many americans are choosing to vote this way," Levy said.
8:30 p.m. | Missouri: COVID Leads To Challenges For VotersFor Missouri voters who recently found themselves infected with the COVID-19 virus, it was a long, arduous day spent trying to cast a ballot Tuesday that resulted in at least one lawsuit, according to a group of attorneys who oversaw an effort in the state to protect the election.
Denise Lieberman, general counsel of the Missouri Voter Protection Coalition, said a rapid response action was filed around 7 p.m., seeking an order to require election authorities to get a ballot to a COVID patient who was recently hospitalized.
Generally speaking, state election officials seemed unprepared for the surge in voters who suddenly found themselves in quarantine today after preparing to vote in person, Lieberman said.
And the challenge to vote wasn't simply confined to COVID-19 patients, but also extended to voters with disabilities overall, Lieberman noted.
9 p.m. | Atlanta: Poll Hours Extended
Hours were extended at some polls in Spalding, Fulton, DeKalb, Cherokee, Houston and Richmond counties. In most of those areas, local election officials pushed back the polling time voluntarily, by 30 to 60 minutes.
In Spalding County, the polls were ordered open until 9 p.m. by Superior Court Judge W. Fletcher Sams, after two Republican state legislators, David Knight and Karen Mathiak, petitioned for the polls to remain open.
But later in the evening, Spalding County officials announced that polls would remain open until 11 p.m.
That was good news for voters, who were entitled to a 12-hour window to vote, said King & Spalding LLP partner Harold Franklin. But they weren't out of the woods yet.
"There have been a lot of extensions, and a lot of activity and controversy around it also, so we've been dealing with those issues now," he said.
King & Spalding partner and Georgia Election Protection Chair Harold Franklin called today "extremely busy" in the state.
Under federal law, when polling hours are extended due to technical failures, those voting after hours vote by provisional ballot, but those ballots are marked "extended," Franklin said, and they'll be treated as normal ballots unless the hours extension is challenged.
"We've been dealing with a lot of those questions and talking with election officials about those issues," he said.
9:30 p.m. | Milwaukee: 'Quieter Than We Thought'The polls closed in Wisconsin at 8 p.m. Central time without incident, and Summer Murshid, a shareholder at Hawks Quindel, couldn't have been more relieved.
"It was quieter than we thought it would be," she said. "I think that was a function of people voting either early or absentee."
As her election protection team geared up for Tuesday, there were rumors that the Midwestern swing state would be a target for unlawful militias that might take advantage of local open carry laws and show up to the polls brandishing guns and intimidating voters.
There were a few isolated incidents of aggressive voters and protesters with signs and bullhorns standing too close to the polling place, but nothing all that unusual, she said.
She did hear that there was more of a police presence at the polls this year — likely an effort to discourage armed extremists. Usually, Murshid said, her group will contact a local police chief and push back against officers at the polls, questioning whether it's necessary, especially in communities where law enforcement might be viewed as intimidating.
But this year was different, she said.
"It was kind of a balance we struck," she said. "Normally we don't think uniformed police officers need to be at polling places. That's not really a thing that we necessarily encourage or need. But this year it was a little different because we weren't sure if people were going to show up armed. They didn't, which was wonderful."
That was a pleasant surprise across the country, according to Jaelyn Judelson of Akin Gump Strauss Hauer & Feld LLP. Judelson has spent weeks preparing with Georgetown's Institute for Constitutional Advocacy and Protection in case armed extremists showed up at the polls on Tuesday, preparing template emergency restraining orders. As of this afternoon, she said, she hadn't had to use them.
But, she added, there had been reports of other forms of intimidation scattered throughout the country, particularly partisan protests in which vehicles lined up and made it difficult for voters to get to their polling station.
"We've heard a few reports that have been submitted through the election protection hotline related to voters' ability to access polls. For example, the Trump train or the vehicles blocking access to voting locations," she said. "It might not be an armed, organized militia, but certainly that is cause for concern."
10 p.m. | Arizona: Lawsuit Forces Polling Places To Stay Open
Bruce Samuels of the firm Lewis Roca Rothgerber Christie LLP and a volunteer with the Voter Protection Coalition on Tuesday filed a lawsuit on behalf of Navajo Nation. As a result, Chinle Community Center and the Red Mesa School Conference were both verbally ordered to remain open until 8:15 p.m. Tuesday evening.
Sarah Brannon, a voting rights attorney with the ACLU who was assisting the election protection effort in Arizona, told Law360 late Tuesday night that a telephonic conference was held around 7 p.m., followed quickly by a ruling that the two polling centers remain open to accommodate voters.
Brannon said local election officials did not oppose the lawsuit, but the Republican party did intervene and was allowed to argue during the telephonic conference, but the extension was granted in light of the fact that polls had not opened on time.
According to Brannon, both polling centers opened at least an hour after the scheduled 6 a.m. election start. The Chinle Community Center in particular opened late after poll workers arrived early this morning to find the doors locked, so workers could not get in and set up until after 6 a.m., Brannon said.
Polling locations in Apache County also experienced delays during the 2016 election as well, the ACLU attorney said, but election officials then were quick to agree to keep those locations open later. This year, election officials could not be reached during the day, prompting the late lawsuit, Brannon said.
Earlier Tuesday evening during a press conference, Patty Ferguson-Bohnee, a lawyer and legal professor working with the Native Vote Election Protection Project, noted a myriad of challenges voters in Navajo Nation faced on Tuesday, including long voting lines and instances of voter intimidation.
Brannon too noted to Law360 late on Tuesday that, unlike other Arizona counties where voters might have the option to vote elsewhere if issues arose, that is not an option in Apache County. At least 5,500 voters were assigned to the Chinle Community Center location, Brannon said.
11 p.m. | Sacramento, Calif.: All Quiet On The Western Front
In a few polling locations, strict social distancing contributed to long lines, she said, and there were scattered protesters near polling stations, but it wasn't as bad as she'd expected.
"I think everyone was a little worried about protesters at the polls, or things getting out of hand at the polls, but we certainly didn't see that in California, and from what I've heard, there hasn't been a lot of that anywhere," she said. "And whether that's because so many people voted before Election Day or everyone was so prepared for it to happen that it didn't happen, I'm not sure."
Jonathan Stein, a civil rights lawyer with Common Cause California, a nonpartisan government watchdog group, offered a slightly different perspective. He said electioneering near polling sites this year was louder and more aggressive than in the past. Especially with voters who refused to take off or cover clothing with political messages, poll workers had to choose between enforcing electioneering laws or avoiding confrontation in the interest of ensuring things ran smoothly.
In Riverside County, there were long wait times at the polls due to a shortfall of voting machines, he said. And though his group was considering filing litigation to keep the polls there open later as of Tuesday evening, he said there were only problems in 11 out of 130 voting sites.
"We're seeing this very intense problem at a very concentrated number of sites. It's not widespread," he said.
But while Martin has worked elections since 2008, this was the calmest election she'd seen, possibly because California has long administered mail-in and drop-off ballots, and 10.5 million Californians voted early.
"We were all expecting the worst and it didn't materialize," she said. "It seemed like the system was working."
Editing by Amber McKinney, Katherine Rautenberg and Connor Relyea.