How Lawyers Are Mobilizing To Protect The Vote

By Marco Poggio | December 5, 2021, 8:02 PM EST ·

People wait in a line to vote early at the State Farm Arena on Monday, Oct. 12, 2020, in Atlanta. (AP Photo/Brynn Anderson)

To Adam S. Sieff, an antitrust attorney at Davis Wright Tremaine LLP, the battle over voting rights is personal.

Growing up in a Jewish immigrant family escaping religious and political persecution in Eastern Europe, he learned to appreciate the value of living in a country where people have civil rights — first among them, the right to vote.

So when offered the opportunity to challenge some of the most sweeping voting restrictions in the country, the ones enacted by Georgia in March, he didn't think twice.

"I personally got involved because the right to vote to me is preservative of all other rights," Sieff told Law360.

He and a handful of colleagues partnered with the Southern Poverty Law Center in filing a suit seeking to block the law, S.B. 202, which gives state officials the power to intervene in county election procedures, including in the certification of votes, adds voter ID requirement for mail ballots, limits drop-off ballot boxes in minority-dense areas and shortens the time period for requesting a mailed ballot. It also makes it illegal to provide water and food to people standing in line to vote.

In a complaint filed in March in federal court in Atlanta days after the law was enacted, the attorneys argued the restrictions target Black and Latino voters and people with disabilities.

"I have a responsibility as a lawyer, as an officer of court, to do my level best to ensure that the opportunities provided by the Constitution are equally available to all American voters," Sieff said.

The litigation, which is currently in the motion-to-dismiss phase, is a significant pro bono undertaking. The firm has already committed thousands of hours to it. Sieff, an associate, said he works on the case "virtually every day." In addition to five core attorneys working on the suit from several of the firm's offices, dozens more have helped with it at different stages

"​​I think if you asked each of them, they'd tell you the same thing. It's a moral obligation," he said.

The suit required the work of several experts, including analysts to dissect the bill's far-reaching provisions and a historian to delineate the state's history of racial discrimination. A team of WilmerHale attorneys added more pro bono muscle to the case.

"It's a full-court press," Sieff said. "We've got a whole range of restrictions, any one of which could be its own lawsuit. We're litigating it all together."

The involvement of law firms, in particular large ones, is crucial to challenging voting restrictions, Sieff said. Voting rights cases require sophistication and resources. They involve fact-gathering, preparing expert testimony, coordination between stakeholders, keeping plaintiffs informed, and negotiating with opposing parties.

Sieff said he hopes more law firm attorneys will become involved in legal actions against laws designed to set limits around voting.

"In the years to come, there's going to be a lot more of this. And we're gonna need all hands on deck," he said.

The suit is one of myriad legal actions undertaken against states that have enacted an unprecedented wave of voting restrictions across the nation with the stated purpose of defending the integrity of the elections despite a lack of evidence of widespread voting fraud.

Between Jan. 1 and the end of September, at least 19 states enacted 33 laws restricting the vote, according to the Brennan Center for Justice, which tracks such legislation. During the same period, at least 25 states enacted 62 laws expanding voting access.

States Enacting Voting Laws

From January through the end of September, at least 19 states enacted 33 laws restricting voting, and at least 25 states enacted 62 laws expanding voting access.

Click on a state to see more information below.

  • Restricted voting rights

  • Expanded voting rights

  • Restricted and expanded voting rights

  • No voting rights laws passed
Source: Brennan Center for Justice
(as of October 2021)
And at least 27 lawsuits have been filed from the beginning of this year until the end of November directly challenging state voting restrictions spanning voter registration procedures, ID requirements, reduction of poll opening and bans on so-called line warming.

Among the dozens of bills enacted or introduced across the county this year, those in Texas, Georgia, Iowa and Florida have gathered nationwide attention because of their sweeping restrictions that voting rights advocates say are aimed at suppressing votes of Democratic-leaning constituencies, particularly Black and Latino people. Those advocates call them "monster bills" because of their comprehensive nature.

As the fight over the right to vote has spilled from state capitols into the next most obvious place, the courts, more and more law firm attorneys have gotten involved pro bono, pairing with civil rights organizations in suits challenging restrictions.

Attorneys with Reed Smith LLP are co-counseling with the NAACP Legal Defense Fund and The Arc, a nonprofit serving people with intellectual and developmental disabilities, in a challenge to Texas's S.B. 1, which legal experts say is one of the most comprehensive voting restriction laws enacted this year.

Partner Sarah Cummings Stewart is one of four Reed Smith attorneys who filed the suit against Texas Gov. Greg Abbott and other state officials over the bill. Stewart is also the co-chair of the pro bono committee at the firm's Dallas office. 

"This large-impact litigation is a really critical tool. Pro bono litigation of this scale is part of our mission. It's part of our responsibility as lawyers," she told Law360.

Texas' Republican lawmakers justified the law as a means to protect election integrity despite no evidence of widespread voter fraud anywhere in the country. The bill bans voting methods such as 24-hour early voting and drive-through voting and makes it a felony for a public official to send mail-in ballot applications to voters who have not requested them. It also requires people voting by mail to provide driver's license or Social Security numbers, which are then matched with voting records.

Over fierce opposition by Democratic lawmakers, some of whom also fled the state to avoid voting on the law, Texas Republicans were ultimately able to push it through, saying the state needed measures to combat voter fraud and standardize the election process.

Stewart and her colleagues argued that Texas' Republican legislators looked at the voting methods Black and Latino voters used the most in 2020 amid concerns over the COVID-19 pandemic and deliberately enacted ways to curtail or banish them altogether. The restrictions also make it harder for people with disabilities to vote, according to the 87-page complaint filed in the U.S. District Court for the Western District of Texas.

"Individually and cumulatively, the challenged provisions of S.B. 1 are intended to, and will have the effect of, burdening and restricting Black and Latino Texans' right to vote and the rights of voters with disabilities," the suit says.

A robust cohort of law firm attorneys from Weil Gotshal & Manges LLP and Fried Frank Harris Shriver & Jacobson LLP joined another suit against Texas' S.B. 1 filed by the Brennan Center and the Harris County Attorney's Office on Sept. 3. Five other suits challenging the bill in federal court, including the NAACP litigation, have been consolidated with the Brennan Center case, which is before U.S. District Judge Xavier Rodriguez of the Western District of Texas, in San Antonio.

"We think that Senate Bill 1 is unconstitutional and violates federal law," Sean Morales-Doyle, an attorney who serves as the acting director of the Brennan Center's Democracy Project, told Law360. "They're not just making things harder for voters. They're making things harder and putting provisions in place to limit and deter voter-friendly activity by the people who help voters, by the people who make our elections work."

Attorneys with Weil Gotshal and Fried Frank did not respond to inquiries about their engagement in the suit.

Chicago-based Jenner & Block LLP, a firm with a decadeslong election law practice, also filed a suit challenging the Texas bill alongside the Texas Civil Rights Project, the American Civil Liberties Union and other civil rights organizations.

Jessica Ring Amunson, who chairs the firm's election law practice, said more firms have gotten involved in challenges to voting restrictions this year.

"There are a number of firms that have sort of recently joined the fight for voting rights, which is terrific, and we welcome them," Amunson told Law360. "This is something that we have been doing for more than 30 years, so we're quite happy to see other firms also joining the fight."

Challenges to Voting Restrictions in Texas and Florida

Attorneys from law firms are playing a crucial role in several suits challenging voting restrictions that critics say target minority voters and people with disabilities.

Texas S.B. 1

What the law does

  • Bans 24-hour early voting
  • Bans drive-through voting
  • Makes it a felony to send unsolicited mail ballot applications
  • Requires voters to write driver's license or Social Security numbers on mail-in ballots
  • Gives partisan poll watchers freedom to move around polling places
  • Adds requirements for people assisting voters with disabilities at the polls
  • Requires state to check voter rolls monthly

Number of federal court challenges:
6 (consolidated)

Georgia S.B. 202

What the law does

  • Gives state powers to intervene in county election offices and replace local election officials
  • Makes it illegal to give food or water to people standing in line to vote
  • Expands weekend early voting
  • Shortens the time for runoffs from nine weeks to four
  • Adds a voter ID requirement for mail ballots
  • Shortens the time period for requesting a mailed ballot
  • Reduces number of ballot drop boxes available in metro Atlanta

Number of federal court challenges:

Nine suits, including one filed in June by the U.S. Department of Justice, have piled up against the Georgia bill. Law firm attorneys working pro bono are playing a crucial role in some of them. Attorneys with Perkins Coie LLP and Krevolin & Horst LLC filed a complaint on behalf of The New Georgia Project, a community-based civic engagement group that helps people register to vote, accusing Georgia of creating obstacles to voting in violation of the Constitution and the Voting Rights Act.

Earlier this year, veteran election law litigator Marc Elias left Perkins Coie along with a group of colleagues to found a new enterprise, Elias Law Group LLP, which focuses exclusively on challenges to voting restrictions. The firm, based in Washington, D.C., employs over 50 attorneys with experience in voting rights. Elias' new firm has filed suits in several states.

Attorneys at Elias Law Group and Perkins Coie declined to comment for this story.

Other firms, from BigLaw to midsize to smaller outfits, have joined hands with public interest groups in challenging voting restrictions in recent years. Some of those legal fights are ongoing.

In the fall of 2018, Allison J. Riggs, the chief counsel for voting rights at Social Coalition for Social Justice, an organization based in North Carolina, asked Paul Weiss Rifkind Wharton & Garrison LLP if it was willing to partner up in a challenge to the state's most recent voter ID law. The firm didn't balk.

The law, S.B. 824, went into effect on Dec. 19, 2018, after the Republican-controlled state's legislature overrode a veto by Gov. Roy Cooper, a Democrat. On the same day, Andrew J. Ehrlich, a Paul Weiss partner with extensive pro bono experience, filed a challenge in North Carolina's Superior Court alongside SCSJ, suing state legislators.

Ehrlich had two Paul Weiss attorneys in mind to put on the case: Paul D. Brachman and David Giller, associates with a long-standing interest in social justice issues.

"​​Of course, we were very interested in that," Brachman, an attorney focusing on antitrust litigation, told Law360.

Brachman and Giller took the litigation to a major victory in September, when, after a 14-day bench trial held entirely remotely, a three-judge panel in North Carolina Superior Court ruled the law — passed after 55% of North Carolinians had voted to amend the state constitution to require a photo ID for voting — discriminated against Black voters in violation of the same constitution.

Paul Weiss attorneys argued elections in North Carolina are highly racially polarized: Black voters strongly support Democrats, and Republican legislators have an incentive to pass laws making it harder for them to vote, they said.

At trial, Brachman and Giller told the judges the 2018 law was nearly identical to one enacted in the state in 2016, H.B. 589, which the U.S. Court of Appeals for the Fourth Circuit struck down, saying it "targeted African Americans with almost surgical precision," in violation of the Fourteenth Amendment.

In the ruling on Sept. 17, the panel agreed with the attorneys' argument that the law was enacted out of a racially discriminatory intent and violated the state constitution. However, the legal fight is not over. North Carolina officials filed an appeal and the suit is now before the state's intermediate court.

Unsupported claims of voter fraud have always been a cornerstone of voting restriction measures, but they found mainstream appeal during the Trump administration.

In the hours leading up to the Jan. 6 U.S. Capitol invasion, then-President Donald Trump invoked made-up claims of widespread voter fraud to try to overturn the results of an election he had lost.

But even before that, states had already begun using those claims as a pretext to enact voting restrictions.

However, it wasn't until the 2020 election was called for Democrat Joe Biden that the voter fraud theory — also referred to as the "big lie" — really took off, sending Republican-controlled states into a frantic mode to pass laws curtailing voting methods that accommodated a record turnout.

In September, the New York City Bar Association sounded the alarm. It published a report warning that state activity is threatening the legitimacy of the American electoral process and called for bipartisan intervention in defense of voting access.

"We believe it is the duty of lawyers throughout our nation to speak loudly and to act effectively, both individually and through their professional associations, to oppose the current actions by state legislatures and executives to limit our citizens' right to vote or to disregard their votes if unfavorable to those who control the reins of government," the report says.

Stephen Kass, a senior environmental attorney at Carter Ledyard & Milburn LLP who chairs the city bar's Task Force on the Rule of Law, told Law360 the attorney group wants to make sure people in the profession and the public understand the nature of the threat.

It also called on lawyers and responsible citizens to act within their local communities, legislatures and courts to slow down and ultimately reverse the development of voting restriction policies.

Kass said there are several things lawyers can do: They can take up litigation on behalf of organizations protecting the right to vote, and they can file amicus briefs in state and federal court within their communities. But it goes beyond that, he said.

"Lawyers play very important roles in their communities, in their legislatures, and executive branches of their local government," Kass said. "They should be undertaking their own actions there in a way that reinforces and does not undermine the right to vote. And that's really what we're calling on lawyers to do."

In September, attorneys with Perkins Coie and Elias Law Group filed a suit against New York election officials challenging a decadeslong line-warming ban that makes it a class A misdemeanor to offer money, but also food, beverages and other goods worth more than $1 to people waiting in line to vote.

In the 18-page complaint filed on behalf of the Brooklyn NAACP, the attorneys argue the ban penalizes voters in communities of color in particular, where it has been reported that voters spend the longest waiting times to cast their ballots.

A thousand miles away in Iowa, Perkins Coie attorneys partnered with McCormally & Cosgrove PLLC, a small firm based in Des Moines, in filing a suit in October on behalf of the League of United Latin American Citizens of Iowa challenging the state's failure to provide non-English election materials, specifically Spanish language materials, to voters with limited English proficiency.

While the contribution of law firms is crucial — committing attorneys pro-bono to complex litigation is expensive — nearly all the challenges to voting restrictions rely on public interest organizations that are spearheading court cases.

Civil rights organizations are at the forefront of the fight against voting restrictions. Nationally recognized groups such as the ACLU, the NAACP Legal Defense Fund, the Anti-Defamation League and Southern Poverty Law Center are being joined by regional and local organizations in litigation and advocacy efforts aimed at defeating bills seeking to tighten rules around voting as they advance through state legislatures, and if that fails, in court.

The Lawyers' Committee for Civil Rights Under Law, a national group based in Washington, D.C., that was founded in 1963 in the aftermath of the assassination of voting rights activist Medgar Evers, has decades of work in defense of voting rights under its belt.

In March, days after Georgia's S.B. 202 was enacted, the organization filed a six-count federal complaint on behalf of the NAACP accusing the state of violating the constitutional rights of voters and attempting to disenfranchise African American voters in particular. The committee is also engaged in state court litigation against Texas over its voter restrictions.

The Lawyers' Committee operates a nonpartisan coalition that runs an election hotline with the widest national reach, assisting voters who encounter issues at the polls. In 2020, the organization participated in over 50 cases in defense of voting rights — its all-time high — representing plaintiffs, filing amicus briefs, and sometimes intervening on the defendants side.

Some of those cases involved pandemic-related measures affecting voting, while others concerned last-minute changes of voting procedure. One suit the group filed sought to stop a group of people sending robocalls intimidating voters.

After the November general election, the committee took part in 15 court cases on behalf of the NAACP involving alleged attempts to suppress the vote of majority Black and Latino constituencies in key states such as Pennsylvania, Georgia, Wisconsin and Michigan. It is also involved in litigation over gerrymandering attempts in Illinois and Texas, said Jon M. Greenbaum, the Lawyers' Committee's chief counsel and senior deputy director.

Greenbaum said he expects the fight over voting laws further intensify ahead of the midterm elections. In particular, he foresees legal fights over voter eligibility, an aspect that states have focused on in the last slew of bills, and post-election challenges.

"One of the things that we saw in 2020 was a challenge to the legitimacy of elections," Greenbaum said. "We have to be prepared for the same thing to happen in 2022. It's going to be extremely busy. We are preparing for an attack on the right to vote."

--Editing by Marygrace Anderson and Jill Coffey. Graphics by Ben Jay and Chris Yates.

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