Lawyers Must Act To Preserve Democracy This Election

Law360 (September 17, 2020, 2:25 PM EDT) --
Laura Brill
Laura Brill
Lawyers and law firms glorify the big win, the big deal, the plum appointment. Little is said about the less glamorous but essential actions that won the case, clinched the deal or secured the new appointment. It may be as simple as asking the right question in a deposition, finding the right precedent or hitting on just the right argument to achieve your goal.

This November, with COVID-19 concerns and restrictions threatening to dampen election turnout, what if lawyers identified as fundamental to our professional obligations the need to preserve democracy, even if we are not first-chairing trial teams, challenging voter purges and demanding appropriate election safety measures in response to the pandemic? Just as with our big wins and big deals, the time invested in the less glamorous work of making sure every eligible voter is simply registered to vote as soon as they are eligible to do so can make the difference.

While voting is a routine function of democracy, the gaps in the most basic aspects of registration are no less severe than the barriers to voting we easily identify when it comes to other types of voter suppression.

One of the most glaring examples is our national failure to institutionalize a process for everyone to be registered to vote by the time they graduate from high school. In most states, this is not a problem created by a legal impediment. It is a problem of inattention and lack of investment. It is grounded in the failure to take advantage of laws that already exist in almost every state that allow the overwhelming majority of young people to register to vote before they graduate from high school.

Despite such laws, most states have no regulations and policies that equitably and reliably implement this permissive regime by making sure that all eligible students are given meaningful opportunities to register to vote before they graduate. Nor do most high schools provide meaningful instruction on how to participate effectively in our democracy.

The results — or lack of results — speak for themselves, with low youth voter turnout being largely driven by low rates of voter registration and lack of meaningful civics education.

The legal community could take on and fix this problem. We have the resources — not just financial resources to support text messaging or email campaigns. We also have the knowledge to understand the laws and the importance of the work, and the social resources that connect us to our communities and that provide us with the latitude to speak from our own authority that this is work that is important.

We are not going to be able to solve the lack of investment between now and election day, but if we use the current moment to start, we will make some immediate progress, and we'll have a good sense of what to do next.

One way to start is to imagine yourself as your law firm's or agency's or corporation's chief democracy officer. Go ahead and take that C-suite title. You deserve it, and you'll probably need it to accomplish what is on the list.

Here's a nonpartisan checklist of what you can accomplish in your first 50 days. If the legal community can create the infrastructure for democracy, it's a good bet others will follow.

A Nonpartisan Checklist and the Legal Community Democracy Challenge

1. First, of course, learn your own state's rules about voter registration, absentee ballot use and online voter registration, and serve as a resource in your community for access questions.

2. Urge your law firm to become part of a growing list of law firms giving employees the day off for election day. The legal community should be a leader in the cultural shift to make sure that everyone has a real opportunity to vote.

3. Ask every bar association with which you are affiliated to sign up for National Voter Registration Day. This is a nationwide effort of nonprofit groups to encourage voter registration on Sept. 22. Few bar associations have been involved the past, but they should be lead supporters.

4. Volunteer for Election Protection, a nonpartisan coalition that works to ensure that all voters have an equal opportunity to vote and have that vote count. In-person voting is likely to be especially fraught this year, and lawyers can provide help on the coalition's voter assistance hotline, which is administered by the Lawyers' Committee for Civil Rights Under Law.

In addition, the Lawyers' Committee works with partners including the National Association of Latino Elected and Appointed Officials, Asian Americans Advancing Justice, Asian and Pacific Islander American Vote, and the Arab American Institute to provide hotline services in Spanish, multiple Asian languages and Arabic.

Election Protection also trains volunteers to be effective poll monitors. Poll monitors can be critical in making sure that in-person polling places offer everyone an equal opportunity to vote and that eligible voters are not turned away improperly or denied provisional ballots. Lawyers and others in the legal community — including paralegals, legal assistants and law students — are all especially valuable volunteers for these efforts, and those with bilingual skills can be critical to supporting voters whose primary language is not English.

5. Lawyers and bar associations have a unique role to play in demystifying democracy for the wider public. For example, lawyers can be especially influential in helping their communities understand ballot measures and in making available reliable evaluations of judicial candidates.

This can take a variety of different forms. For example, lawyers and bar associations can organize formal online panel discussions about the different ballot measures and their potential impact. Individual lawyers can also play a key role in helping to make information more broadly available by posting on social media, publishing in the traditional press or through blogs or open outlets like Medium, or by hosting online ballot parties for their friends and neighbors or a wider audience.

In California, where I live, we have very important measures on the ballot, including Proposition 15, which if passed will create greater flexibility for local governments to tax commercial and industrial property. Current restrictions imposed by an initiative in 1978 have created significant funding challenges for public education.

Another measure on the California statewide ballot, Proposition 16, will repeal California's current ban on affirmative action in admissions in public higher education. Californians also will be voting on electoral reforms, including restoring voting rights for persons on parole and allowing 17-year-olds to vote in primary elections if they will turn 18 by the general election.

In other states, some significant issues to be decided include marijuana legalization (Arizona, Montana, New Jersey and South Dakota); binding electoral college electors to cast their votes in accordance with the national popular vote (Colorado); a $15 minimum wage requirement (Florida); abortion restrictions (Colorado and Louisiana); and the adoption of ranked choice voting (Alaska and Massachusetts).

6. Lawyers often underestimate the extent to which fundamentals of the mechanics and logistics of voting are misunderstood, and the role they can play as community leaders in providing straightforward explanations.

This year, especially, lawyers and bar associations can encourage service as poll workers and participate in Vote Early Day, a movement aimed at educating Americans about their options to vote early, so that our election processes will not break down from excessive lines on Nov. 3.

There is a huge shortage of poll workers now because of COVID-19; in past elections, one in four poll workers were over 70, and many of them are sitting this election out. In addition, over 200 million Americans have the opportunity to vote in advance of election day this year with no excuse needed.

7. Finally, focus on young people. Low youth voter registration rates are the driving force behind low youth turnout. Students who graduated from college in 2020 face wide-scale disenfranchisement because of the cancellation of events this spring and summer. In addition, most high schools have no training, program or planning to make sure that all of their students are registered to vote before graduation.

Lawyers can work with schools to create pro-voting policies and programs for school districts for the long term and to help school districts understand how to promote voter registration and engagement in a way that is nonpartisan. 

As lawyers, we serve in our professional lives as the voice for our clients. But we know that the rights and procedures we invoke on their behalf depend on our democracy working well.

For democracy to work well, everyone needs a voice, and when that principle is threatened, the legal community has an obligation to step in and to make an impact beyond the courtroom. Simple practices by each of us, if we approach them with commitment and care, can make the difference we need for a fair election that can make us proud.

Laura W. Brill is a founding partner at Kendall Brill & Kelly LLP and founder of The Civics Center.

Disclosure: The Civics Center works as a partner organization with the Election Protection program and National Voter Registration Day.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients 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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