Hard on the heels of defeat at the ballot box, US President Donald Trump deployed a battery of lawsuits to try to cast doubt on the legitimacy of his opponent Joe Biden’s victory. To many attorneys specialising in election law, it was a cynical attempt to manipulate the courts into disenfranchising millions of voters.
When district court judge Matthew Brann threw out the president’s attempt to invalidate election results in Pennsylvania, he was damning of Trump lawyer Rudy Giuliani’s efforts, calling them “strained legal arguments without merit and speculative accusations”. Overt as Mr Giuliani’s efforts were, lawyers who fight unfair election practices across the US say most disenfranchisement attempts are more endemic and concealed.
Stanton Jones, a constitutional lawyer with Arnold & Porter in Washington DC, says election laws in the US are riddled with hidden traps that can cost citizens their voice in democracy. “Whether it’s an overly burdensome voter ID law or a gerrymandered map designed to predetermine the outcome of elections before any ballot is cast, these kinds of laws are anti-democratic and unconstitutional,” he says.
Earlier this year, Arnold & Porter partnered with non-profit law firm Forward Justice to fight disenfranchisement in North Carolina. The team forced the state to strike down a law that prohibited North Carolinians from voting if they owed fines or other debts arising from a felony conviction. The win meant thousands more, mostly black, citizens could vote in the presidential election, says Forward Justice co-director Daryl Atkinson, whose non-profit works to improve racial and social justice in southern states.
The lawyers succeeded by keeping the case in the state court, and therefore subject to North Carolina’s laws, rather than having it moved to federal court and litigated under the national constitution. The federal courts — and ultimately the Supreme Court of the US — are an unfriendly venue for voters’ rights, says Mr Jones. “Our baseline assumption is that the US Supreme Court is pretty much always going to do the wrong thing on voting rights,” he says. One of the greatest impediments to voter equality, he adds, is a 2013 case that stripped the country’s voter-protection laws of much of their potency.
Donald Trump lawsuit tracker
US President Donald Trump is trying to deny Joe Biden’s victory in the presidential election with a flurry of legal actions in key battleground states that have mostly been dismissed by the courts.
In state and federal court cases, the FT’s lawsuit tracker provides details including relief sought, current status and number of ballots at issue, as well as links to relevant documents such as complaint and motion to dismiss.
To find the tracker, go to: ft.com/us-presidential-election-2020
In Shelby County vs Holder, the Supreme Court removed a requirement that state and local governments must gain clearance from the federal government before changing election laws. The 1965 Voting Rights Act (VRA) provision had been aimed mostly at southern states because of a history of discrimination against African Americans. Dissenting against her peers, the late Justice Ruth Bader Ginsburg said throwing out the provision was “like throwing away your umbrella in a rainstorm because you are not getting wet”.
After the Shelby ruling, all but a couple of the states covered by the VRA enacted restrictive or regressive voter-suppression laws, says Mr Atkinson. “The origins of many of these voter-disenfranchisement laws are enacted consistently with racist intent and are still producing those same outcomes,” he says.
Yet even northern states seen as more progressive have laws that serve to suppress the minority vote. In New York state, the League of Women Voters sued to change what it believed were “flawed” absentee ballot verification requirements in time for the 2020 election.
How states verify the validity of absentee ballots varies dramatically. Some check personal information against voter registration records, while others require signatures to be verified. Ballots can be rejected for trivial reasons such as extraneous marks on the envelope. In New York state, lawyer Danielle Lang, voting rights co-director at democracy watchdog Campaign Legal Center, says ballots were often rejected for being completed, quite legally, in pencil rather than ink.
Ms Lang, who represented the League of Women Voters, found the rate of ballot rejection in 2018 in New York state was 15 per cent, one of the highest in the country. “Only 3 per cent of the population was voting by mail, so we were worried what would happen if more people used the absentee system.” Not only were the reasons for a ballot’s rejection often unclear, but voters were not told or allowed redress.
“There were a lot of subjective reasons why ballots were being discarded,” says Joshua Margolin, a partner in New York City with Selendy & Gay, which worked with Ms Lang. “If something is wrong with their ballot, voters should be told and have an opportunity to fix that.”
Mr Margolin and Ms Lang’s recommendations formed the basis of new guidelines for election officials. “Elections boards used to think that if everything wasn’t 100 per cent by the book, they should throw out the ballot,” says Ms Lang. “We explained that they should err on the side of the voter — on the side of including ballots that are cast by eligible voters.”
At the time of writing, absentee ballot rejection figures were not available. However, the New York State Board of Elections says because of the pandemic, about 2.5m citizens across the state requested an absentee ballot — about five times the number for the midterm elections in 2018.
Case study: social justice
Researched and compiled by RSG Consulting. ‘Winner’ indicates that the firm won an FT Innovative Lawyers 2020 award; other organisations are listed alphabetically
Social justice and the rule of law
From compensation for victims of pollution to ensuring voters’ rights, lawyers have harnessed the law to overturn inequities. The following reflect some of the best practice emerging.
WINNER: White & Case
Approximately 30,000 children in Flint, Michigan, were found in 2016 to have developed special educational needs as a result of lead poisoning from the city’s water supply. In August this year, the law firm achieved a $20m settlement, following a four-year class action lawsuit against the state and city of Flint.
The money will be used to provide special educational services to all public school students with disabilities. The case sets a legal precedent for dealing with the long-term impacts of lead poisoning.
Arnold & Porter
The firm won a case in North Carolina that strikes down a state law that disenfranchised voters with felony convictions who owed fees, fines or other debts on the basis that they were wrongly classed as still being on probation or parole. The ruling allowed an estimated 100,000 ex-felons in North Carolina to vote in the 2020 presidential election.
The firm intends to challenge the statute that prevents ex-felons who are on probation or parole from voting in a full trial in 2021.
With the non-profit Center for Reproductive Rights, the firm secured a ruling to prevent abortion clinics in Oklahoma from closing after the governor published an executive order stating that all elective surgeries and non-essential medical procedures, including abortion, had to be postponed because of the pandemic.
The firm has dedicated 1,400 hours of pro bono support to food banks and food distribution organisations since January, helping with employee safety, supply chains, food storage, bringing in the National Guard to assist in distribution of food during the pandemic, and applications to the Paycheck Protection Program (a loan scheme for businesses affected by the pandemic). The firm also provides pro bono legal counsel to the UN’s World Food Programme.
Latham & Watkins
With the National Association for the Advancement of Colored People (NAACP), the firm won a case that will force the East Ramapo Central School District in New York to change its voting method. The district’s at-large voting method meant school board members are elected by all voters in the district, rather than each neighbourhood being represented by its own board member, effectively blocking black and Hispanic voters’ preferred candidates.
In the district, 92 per cent of public school children are black or Hispanic, while 98 per cent of private school students are white; the majority white board members were making decisions that favoured private schools.
Munger, Tolles & Olson
Representing the NAACP, the firm won a lawsuit against secretary of education Betsy DeVos that prevented the US Department of Education from diverting emergency aid distributed in response to the Covid-19 pandemic from public to private schools.
Selendy & Gay
To combat the number of absentee ballots rejected in elections in New York State (34,000 in the 2018 midterm election) the firm worked with the Campaign Legal Center and League of Women Voters non-partisan civic organisations on a lawsuit seeking new legislation that would inform voters if their ballot was likely to be rejected, so they had a chance to resubmit their vote. The New York State senate passed the bill in July 2020, in time for the presidential election in November.
Walden Macht & Haran
The firm represented a US government task force investigating improper use of tax incentives in New Jersey. The incentives were designed to encourage companies to continue operating in the state, but were found to have been used by businesses that had never intended leaving.
The firm played a leading role in the investigation, talking to a wide range of organisations, including those advising on how to play the system. Some $500m worth of incentives were cancelled or suspended and a series of recommendations on changing the process have been made.
The firm represented Harvard University and Massachusetts Institute of Technology in the first lawsuit filed against the US government after it announced on July 6 that international students could not stay in the country if they were taking classes online.
The firm filed a lawsuit within 48 hours and on July 14 the government said it would drop the policy.
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