BigLaw Getting Election Day As A Holiday? Not So Fast

Law360 (November 5, 2020, 7:58 PM EST) -- While some BigLaw firms declared Election Day a holiday this year to boost turnout and in anticipation of complications due to the coronavirus pandemic, don't expect that to become the norm in the industry going forward, experts say.

Some firms emphasized the continued need for lawyers to have time and flexibility to help out with election issues, while also stressing that making Election Day a holiday won't necessarily boost volunteer presence. And on the question of lawyers having the time to vote, they pointed to the record number of early and absentee ballots this year as an argument against such a change.

Peter Breckheimer, a partner at Glaser Weil Fink Jacobs Howard Avchen & Shapiro LLP, said he's "not sure that we'd necessarily need a federal holiday" to send lawyers to the polls.

"That seems like something that can happen on a case-by-case basis," Breckheimer added, noting that he doesn't speak for Glaser Weil as a whole.

This week's election unfolded amid a pandemic for the first time since 1918, a midterm year by which point World War I had waged on for more than four years and the Spanish Flu was gripping the nation. In that contest, President Woodrow Wilson's Democratic Party ultimately lost control of the House and Senate.

Given the anticipated uncertainties surrounding this year's election, some law firms this summer — including Jenner & Block LLP, Fenwick & West LLP and Mintz Levin Cohn Ferris Glovsky and Popeo PC — announced they would give their staff and attorneys the day off, in part to formally put in place a way for lawyers to get involved at the polls.

And Reavis Page Jump LLP, a woman-owned, employment-focused law firm, has for the last several election cycles closed its office on Election Day and the day before, as well as on Susan B. Anthony Day in February. The firm has been active for months this year doing U.S. census advocacy work.

As just one way to measure the output of lawyers volunteering on or before Election Day, more than a dozen firms hosted or co-hosted Lawyers' Committee for Civil Rights Under Law call centers across the country, fielding voters' questions and concerns the day before and day of the election.

That list includes Akin Gump Strauss Hauer & Feld LLP, Baker McKenzie, Arnold & Porter, Clifford Chance LLP, Troutman Pepper, Cooley LLP, Davis Polk & Wardwell LLP, Dorsey & Whitney LLP, Fenwick & West LLP, Kilpatrick Townsend & Stockton LLP, Kirkland & Ellis LLP, Reed Smith LLP, Lowenstein Sandler LLP, Morgan Lewis & Bockius LLP, Proskauer Rose LLP, Schulte Roth & Zabel LLP, Steptoe & Johnson LLP, Seyfarth Shaw LLP, Simpson Thacher & Bartlett LLP, Stinson LLP, Stroock & Stroock & Lavan LLP, Sullivan & Cromwell LLP and WilmerHale.

Paul Lee, pro bono counsel at Steptoe & Johnson, which teamed up with Schulte Roth to host a call center that covered New York, Tennessee and West Virginia, worked 12 hours on Monday and nearly 16 on Tuesday.

As an example of the work that center did, Lee assisted a Tennessee-registered voter who's in college in California.

A county in Tennessee had invalidated that student's absentee ballot days before the election because they had not mailed a photo ID, and Lee worked with county officials to get the vote validated — and change the entire county's policy on the issue, which Lee said presumably also validated other ballots that had been thrown out.

So with all the volunteer work law firms did this time around, the key question is: In future election years, will firms make Election Day a holiday, or instead continue to provide lawyers who want to volunteer with the flexibility to do so?

"There are no discussions either way of making Election Day a permanent holiday, even if it were to, say, replace Veterans Day, which I'm hearing a general buzz about," said John Goldstein, an officer at Greensfelder Hemker & Gale PC, speaking about what he's hearing at his firm.

Of course, the issue has two prongs: providing volunteer legal services and giving lawyers and staff time to cast their own votes.

On the latter point, some pointed to record early voting numbers in 2020 — more than 100 million Americans voted early, more than double the mark from four years earlier, according to nonpartisan U.S. Elections Project — as a disincentive for creating the new holiday.

"Here in Arizona, since most of the votes are done by mail, we have decided not to have an actual holiday, while still encouraging all of our employees and lawyers to vote," said Nick Wood, a partner at Snell & Wilmer LLP.

Indeed, Arizona has for decades been known for its efficient mail-in voting system, and law firms may take a closer look at the states in which they operate in, weighing the pros and cons of how to accommodate voting and volunteering.

Certain states, including California, have laws guaranteeing time off to vote on Election Day. In the Golden State, it's up to two hours.

Heidi Reavis, managing partner of Reavis Page, said it's possible that firms in New York could make Election Day a holiday, and said the change would likely be "limited to the more progressive states."

"However, with absentee and mail-in ballots, the need to close businesses for actual voting diminishes," Reavis said.

Still, some firms are considering it, including Jenner & Block.

"This Election Day, many of our lawyers and professional staff worked as poll observers, election judges and inspectors, and staffed hotlines among many other admirable volunteer activities that make a difference in fair elections," said co-managing partner Katya Jestin. "For these reasons, Jenner & Block is currently evaluating making Election Day an annual firm holiday, although we have not yet made a final decision."

Likewise, for others, only time will tell.

"We didn't declare a firm holiday, but did give four hours of paid voting leave," said Chris Rubsamen, communications manager at Kelley Drye & Warren LLP. "It's way too early to decide if that's going to become a full day in four years."

--Additional reporting by Xiumei Dong. Editing by Philip Shea and Orlando Lorenzo.

Correction: An earlier version of this article included incorrect information about Reavis Page Jump LLP's election-eve holiday policy for the last several election cycles. The error has been corrected.

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