Doing Pro Bono to Preserve Democracy

With the 2018 midterm elections around the corner, an added spotlight is placed on ensuring the right to vote in jurisdictions across the United States, and pro bono lawyers have played a unique role in protecting the right to vote for individuals and marginalized communities.

In the last seven years, dozens of states have adopted a range of laws that impact voting. In 2017, legislatures in Arkansas, Georgia, Indiana, Iowa, Montana, and North Dakota passed laws that impose voter ID requirements, purge voters, and limit voter registration drives. Opponents of these regulations argue that they have a disproportionate impact on African-Americans and other minority voters.

Over the years, pro bono attorneys have been a crucial resource in responding to the spate of recent voting laws. In 2016, the U.S. Court of Appeals for the Fourth Circuit struck down a 2013 North Carolina voting rights law in N.C. State Conference of the NAACP v. McCrory as unconstitutional. The law created a strict photo identification requirement, shortened the early voting period by a week, eliminated same-day voter registration, among other changes. The court found that the law “target[ed] African-Americans with almost surgical precision,” including, requiring in-person voters to show photo identification “which African Americans disproportionately lacked,” and eliminating or restricting “registration and voting access tolls that African Americans disproportionately used.” For the McCrory case, the law firm of Kirkland & Ellis* dedicated thousands of hours of pro bono work by more than 20 attorneys to overturn the North Carolina law. The Brennan Center for Justice litigated the case with Kirkland & Ellis and has partnered with more than 30 law firms on a variety of projects, including challenging voting rights laws.

Pro bono lawyers have also played an important role in ensuring that everything runs smoothly on Election Day and that individuals are able to access the polls. The Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) launched in 2001 Election Protection, a coalition that works to ensure all voters have an opportunity to vote, and trains pro bono attorneys to monitor polling places and staff hotlines to address the problems people face when they try to cast their ballots. Numerous pro bono lawyers have worked on Election Protection initiatives and have partnered with the Lawyers’ Committee, including in-house counsel at Bank of America Corporation** in San Francisco, who collected information about election irregularities from callers during the November 2016 election, and members of the Houston Chapter of the Association for Corporate Counsel, who monitored polling locations on Election Day 2014 in Harris County, Texas. During this year’s primary season, Lawyers’ Committee and the NAACP partnered with Hogan Lovells*to file a lawsuit alleging that voters who attempted to vote in the early morning in three Maryland polling districts were denied access to the polls due to difficulties setting up the polling stations. The plaintiffs sought emergency injunctive relief to extend the voting deadline for those three polling stations to account for the hours lost earlier in the day and succeeded in obtaining a one-hour extension.

Notably, the Brennan Center for Justice recently documented the growing threat to the right to vote as a result of voter roll purges, a phenomenon voters may be unaware of until they arrive at the poll. Thus, more Election Day challenges are likely to arise come November, and pro bono lawyers will play a vital role in preserving the fundamental right to vote.

* denotes a Law Firm Pro Bono Challenge® Signatory

** denotes a Corporate Pro Bono Challenge® Signatory

Hat tip to PBI intern Nick Martire for his contribution to this post.