The Crisis Comes Once a Year

Lawyering on Election Day

DAVID S. TURETSKY

Elections are fundamental to the maintenance of democracy. Election monitor­ing poses significant challenges to lawyers, challenges parallel in many respects to crisis lawyering.

My election work has been organized around a simple principle: everyone who is eligible to cast a ballot should be able to do so and have it counted. A subsidiary principle is to keep the lines moving on Election Day because delays inevitably lead to reduced voter participation. In my experience, my political party uses its limited voter protection resources on Election Day to monitor the precincts that are likely to perform the best for our candidates. We often do not know a voter's intentions and we do not ask, but we do know that every vote prevented from being cast and counted in those precincts is more likely than not to be one of ours.

Unlike some crises discussed in other chapters of this volume, we know the arrival and duration of Election Day far in advance. We often know which problems may arise and the applicable laws, rules, and policies.

I was hooked on voter protection early. Indeed, the very first case I worked on to protect voting rights came when I was still a law student—a summer associate at a big New York City law firm.

That same day, with the New York City media and political world ablaze, I joined the second-year associate who led the case, Kim Sperduto, and the third-year associate who was next in charge, Gwenellen Janov, on the shuttle to Washington, DC, and the Supreme Court to respond to what we knew would be New York City's imminent request for an emergency stay. As we arrived with books and a typewriter, the guards at the Court loaned us use of their locker room. That enabled us to quickly pull together a set of responsive papers to file on a moment's notice when New York City sought an emergency stay from the Court not long after our arrival. Unfortunately for New York City, the Supreme Court justice responsible for hearing its emergency request was Associate Jus­tice Thurgood Marshall, one of the prime architects of the landmark Voting Rights Act. I was happy not to be a lawyer for New York City trying to explain its version of the Voting Rights Act to him. He polled the Court after the law­yers left, and the three-judge court's injunction remained in place.¹

My commitment and involvement grew. Some years, I monitored a pre­cinct. Other years, I helped lead or coordinate parts of voter protection ef­forts, as I did for Senator Bill Bradley in his final campaign for US Senate in New Jersey in 1990.

I also helped to respond to some unusual election emergencies. For a part of the 2000 presidential election circus in Florida, I had a good but unsatisfy­ing seat. I was involved in the postelection review of the troubling “butterfly ballot.” The design of that ballot confused a substantial number of would-be Al Gore voters in Palm Beach County into casting votes for third-party candi­date Pat Buchanan. Notwithstanding the affidavits we obtained and the inter­views we conducted—which documented the confusion, anger, and sadness of voters who mistakenly voted for someone whom some of them considered to be a racist—there was no remedy found after the election sufficient to ad­dress that particular problem.

In 2004, I was based in Harrisburg to help the coordinator of voter protec­tion efforts in central Pennsylvania. Mobilized in significant part by the 2000 election mess in Florida, we deployed an unprecedented number of volunteer monitors who we trained on the law, process, and practicalities and instructed them how to enter information into a sophisticated computer data system that enhanced our situational awareness and response.

In this chapter I will highlight the lessons learned from these experi­ences. As a primary case study, I use events that occurred in Chesterfield County, Virginia, in 2008, from the primary contest to the general election. Although I helped solve some problems on Primary Day that year, the ones that got away are the heart of the story. We then acted aggressively and suc­cessfully to make sure that these problems would not recur in the 2008 gen­eral election.

As lawyers, we try to plan and anticipate. As election rights lawyers, we work to get the rules right, to solve as many problems as possible before Elec­tion Day, and to ensure that strategies and pathways for communications are in place to address the problems that may occur anyway. Unfortunately, we often have to grapple with problems on or even after Election Day that have the potential to affect the integrity or outcome of an election.

As citizens and likely voters, we are equity holders ourselves in the process of voting. We bring our own experiences and plans as voters. Our personal experience as voters can help us understand—as lawyers—what is happening and what is at stake, but it may also make some of us feel we have all the tools we need to act and the authority to do so. It may leave us fuzzy about who, exactly, is our client. As lawyers—beyond our role as citizens—we usually bring an additional tool kit, which includes some ability to read and under­stand the US and state constitutions, statutes, cases, rules, interpretations, and other components of the law. We may bring experience in advocacy and an understanding of legal processes. Some of us may be comfortable appearing before agencies and in courtrooms.

The equities that lawyers bring to the situation as professionals are usually very helpful. Sometimes they are not. They may not be helpful when lawyers of varying skill and experience unilaterally decide to take on local election officials aggressively in a hostile or threatening manner or communicate to the media with limited information and without much of a plan—or maybe even a bad one. Lawyers may accomplish great things, but they may also not be practical and may instead complicate the ability to solve problems and may even create new ones. The following case study describes my work in one series of elections; I try also to draw on these experiences to highlight larger lessons for crisis lawyering on Election Day and beyond.

Chesterfield County, VA, and the 2008 Democratic Primary and General Elections

As the 2008 primary and general elections approached, I had worked in voter protection for decades. I was a partner then in the Washington, DC, office of a large law firm. There, I organized (together with another lawyer) a pro bono Election Day monitoring program, which supplied Election Day volunteer legal monitors to the Democrats, Republicans, and other organizations, depending on the individual preferences of our attorneys.² Participants focused strictly on voter protection and not get-out-the-vote or other partisan activities.

Background: Observing on Election Day at the Virginia State Board of Elections

From about 2008 through 2015, I played the same role in Virginia every Elec­tion Day. The State Board of Elections (SBE) in Richmond invited each party to supply one observer to be present and interact with the leadership and staff of the SBE. A party could substitute for its observer over the course of the thirteen hours the polls were open, as well as the period before and after. I was the observer for the Democratic Party of Virginia. I usually arrived before the polls opened and departed only after the last votes were cast. I played this role for all general elections and several primary elections in this period. For a few elections, including the 2008 presidential primary, I began in that role and someone relieved me late in the day.

The role was tightly coordinated with the rest of the effort by my party to protect the vote. Before Election Day, I participated in the training and coordi­nation meetings for precinct monitors and observers, as well as for the boiler room (a central, colocated group of expert lawyers who sifted through and fol­lowed up on information from monitors in the field, aggregated information, directed responses, etc.). I met the people, learned the procedures, and built a strong relationship with the boiler room and political teams. I also had ac­cess to the software program that showed in real time all the information that the precinct monitors or the boiler room personnel had input about individual incidents. I could sort the information by county, type of incident, assessed severity, time of occurrence, and other factors. My job was to escalate to the SBE or otherwise respond to requests for help at the SBE from the boiler-room leadership and to convey back information about what was happening at the SBE and around the state from the SBE's perspective. In addition—particularly the first few times I was there—the SBE established an open and transparent model that enabled the observers to do much more to address election issues.

In my first years in this role, SBE secretary Nancy Rodrigues invited both parties' observers to sit with her in her office, the hub of many of the SBE's Election Day activities. We were sometimes joined by SBE staff, SBE members, or a representative of the state attorney general. We were able to hear reports from staff about issues they were learning about and Secretary Rodrigues's tele­phone calls with county and city registrars and others. On some occasions, we were invited to participate in the conversation in a limited fashion. Many of the calls were put on speaker, and the secretary always disclosed who was in the room. If a legal issue required sensitive consultation with the Attorney Gen­eral's office, or it was otherwise appropriate, we briefly stepped out. This was the gold standard. We could hear the secretary of the SBE discuss with jurisdic­tions their particular election issues and relevant voter calls and complaints, the status of issues, and next steps. Near the end of a call, Secretary Rodrigues would often turn to the observers to ask whether we had reports or descrip­tions of any other problems or issues in the jurisdiction that was on the phone or whether we knew other information about the issues they had discussed. To respond, I would look at the database reporting system that captured the up-to-date information submitted by our election monitoring volunteers and our boiler room or other information that had been highlighted for me to share with the relevant jurisdiction. Often, the county election officials agreed to look into a situation I raised if they did not already know about it and to call back the secretary with an update that I would be able to listen in on. For the most part, county officials seemed fine enough with this transparency.

Allowing the observers to engage with election officials at the SBE offices and across the Commonwealth in this way was a tremendously efficient way to identify and resolve issues and to ensure that all stakeholders had accurate and up-to-date information about the status of the election. This process built trust and provided a forum to share information and reduce misunderstand­ing and conflict. It even led to some cordial dialogue between the parties, with the party observers often agreeing how to address a thorny issue.

The SBE would also make statements to the press at certain scheduled times on Election Day to characterize for the public what was happening across Vir­ginia. Shortly before doing so, it would often share a draft with the observ­ers and allow the parties to provide some feedback, as the SBE was interested in making sure that the statement was accurate and wanted to know whether either party had a very different perspective from the SBE. Similarly, the SBE often shared with the observers draft guidance or updates it intended to send directly to the registrars during the day to address recurring questions or is­sues. Sometimes the SBE would consider suggestions from the observers, made openly in front of each other, about the language of the guidance. This was a way to make sure that the SBE would not unknowingly provide guidance that might be misunderstood and that a party would view as wrong or problematic. It enabled the SBE at least to consider other language and to become aware promptly of what might be in dispute. These opportunities to communicate about election issues across Virginia in a timely and effective manner—coupled with my close coordination with the boiler room—enabled everyone to be up to date, skip issues that already were addressed, and avoid inconsistencies. Some­times, I would call a poll monitor directly, sometimes with the boiler room on the phone, to get more specific information or to be briefed on any new devel­opments. It was crucial to have the most credible, complete, and up-to-date information available to share in conversations with registrars.

Other Virginia SBE secretaries, while cordial and professional, did not nec­essarily meet Secretary Rodrigues's gold standard in later years. Before one elec­tion, I objected strenuously to an SBE proposal to move observers to a different floor in the SBE offices, which would have severely reduced access to relevant SBE officials. In response, the proposal was modified to place us on the same floor as the secretary and much of the staff, but down the hall. This excluded the observers from most calls, reducing transparency and making the job tougher. That likely contributed to the Democratic Party filing a rare lawsuit one Elec­tion Day, based on sustained voter lines of two hours and more in certain ju­risdictions. The SBE would not agree that lines longer than ninety minutes required action, such as an extension of polling hours or a different process to check in voters (e.g., splitting the polling books to create additional check-in lines), where other approaches were unavailable or unsuccessful at reducing the lines. On one Election Day when I was otherwise relegated to an office down the hall from the secretary, with some drama I came to the secretary's office and stood there holding my phone out. I outlined a proposal as it was conveyed to me by the Democratic Party's counsel, identifying what remedies would be acceptable for polling places still experiencing delays of similar magnitude as an alternative to filing a lawsuit. I waited as the SBE discussed the delays and the proposal and decided not to do what we requested. I told my colleagues the response and to go ahead and file suit. Such lawsuits rarely prevail in Virginia, and this suit met that common fate.

Virginia’s 2008 Presidential Primary Election in Chesterfield County as

I Saw Itfrom the Virginia State Board of Elections

The fastest-paced Election Day that I experienced at the Virginia SBE was the 2008 presidential election. I stayed on duty the entire time, beginning before the polls opened, and I was exhausted by the end of the day. Turnout was high. There also were many volunteers monitoring the precincts, and at times the information flooded in. Practicing my own kind of emergency prepared­ness, I brought a laptop, an iPad, and a cell phone. I arranged to have access to the guest broadband service at the SBE and the ability to connect to different mobile carriers for each device. I researched which two carriers provided the best connections in that location. In addition, I brought an inkjet printer and paper. I realized that it was sometimes helpful to the SBE staff for me to pro­vide a specific description of incidents in order to avoid miscommunication and to generate needed follow-up, particularly when we were not in the same room as the secretary and SBE staff.

While the presidential general elections in 2008 and 2012 were by far the busiest for me at the SBE, the most consequential from a voter protection stand­point turned out to be the 2008 presidential primaries. Of course, in a presiden­tial primary, voters choose the candidate who will represent their party in the subsequent general election, and although multiple parties hold their primaries on the same day, the parties do not compete directly against one another. I was the Democratic Party observer at the SBE, stationed in Secretary Rodrigues's office as described above. While there, I learned of a number of problems. These plagued Democrats much more than the Republicans, given the historically high participation levels after Senators Barack Obama and Hillary Clinton, who were competing for the Democratic presidential nomination, campaigned in and prioritized Virginia, an important swing state.

Early on Primary Day, the SBE received phone complaints about delays and long lines in Chesterfield County—a county I did not know much about yet. It was located just below Richmond and in a different media market than the northern Virginia/Washington suburbs where I resided. Reports from observers and voters alike conveyed disturbing information about early- morning voting problems there.

Chesterfield County was a large, historically Republican, and mostly White county that was in the midst of change. The county's Democratic voting per­formance was substantially increasing, and the county was adding new multi­family housing and becoming more diverse. Chesterfield had reportedly been the only county in Virginia to have monitors assigned to it in 2004 by the US Department of Justice under the Voting Rights Act. This followed a series of complaints, including allegations about an intention to place armed guards at polling precincts. In 2006, the American Civil Liberties Union asked the De­partment of Justice to send monitors to Chesterfield County based on a litany of allegations about voter ID requirements; the handling of provisional ballots; and alleged abuse, such as requiring that voters provide social security numbers to obtain absentee ballots. I was not initially aware of these earlier allegations.

Secretary Rodrigues reached out to the general registrar in Chesterfield County to report the calls, to learn more about what was happening and whether the SBE could provide help. The registrar said that the wait that morning in a specific precinct under discussion was only fifteen minutes and not the forty-five minutes that one voter had reported to us. That local reg­istrar was not very receptive to the SBE. As I listened in on that call, I was able to pass along additional reports of delays. I also noted that the registrar's statements were not consistent with what voters were telling us—so someone had to be wrong. I asked him if he would mind checking directly with the precinct involved and let Secretary Rodrigues know which information was correct. He said he would do that and later called back to say wait times there were from fifteen to forty-five minutes. This did not give us confidence in the process or in the accuracy of the reports we were receiving from that registrar.

The SBE received complaints directly from voters in several precincts and from other sources relating to Chesterfield County. The Democratic Party also received complaints about several Chesterfield County precincts from voters, poll observers, and local party officials. The press was becoming aware, too. All these reports concerned long waits for Democratic primary ballots and voters who were leaving crowded polling places without voting, with some saying they would try to return later. This information and high turnout across Virginia suggested major turnout still to come, as did national voter participation trends from primaries earlier that year. We raised with the Chesterfield County regis­trar the possibility of another major rush of voters around dinnertime and of a possible shortage of ballots. On a series of calls with the secretary, the registrar advised us that, notwithstanding the high morning turnout and the voters who said they would come back to vote later due to the long lines and delays, dinner­time would not be a busy voting time in Chesterfield County. He said that only the morning is a busy voting time in Chesterfield County and that his county did not need help. I urged that the county consider steps such as splitting poll books to enable more and faster check-in lines, as well as other steps to be ready for another busy period, all to no avail.

Failures by Chesterfield County Election Officials Deprived Voters of the Right to Vote

Another observer from my party relieved me just before the busy voting time at the end of the day. I subsequently learned that devastating problems arose when the voter rush that everyone (except the Chesterfield County registrar) had predicted actually materialized. Precincts in Chesterfield County ran low on ballots and sought more from the county registrar during the day, even as the registrar denied to the SBE, while I was listening in, that there was a problem. He refused offers of help from the SBE. Eventually, traffic and long distances made timely delivery from the county registrar's office of additional ballots they could find or print (they also had a printer equip­ment problem) difficult. Eventually, voter complaints made directly to the SBE and information from Democratic Party observers clearly illuminated serious problems in Chesterfield County. While the secretary made a cou­ple of the SBE's employees available earlier that day to help a precinct in a different county that had a problem and was grateful for the assistance, her offers to help Chesterfield County with its possible ballot shortage and other issues were refused. Nevertheless, the secretary determined that she had the authority to dispatch state troopers to deliver additional ballots to precincts in Chesterfield County that had none, and she did so. By then, the county's failure to share information had left little time for that to work, although state troopers succeeded in bringing more ballots to at least one precinct that ran out before the polls closed.

What happened in Chesterfield County was shocking and sad. The Ches­terfield County registrar and electoral board stood by as numerous precincts ran out of Democratic ballots. Lines ballooned to hundreds of voters. Delays proliferated. Some older and disabled voters gave up. Some voting precinct officials who had continually requested additional ballots from the registrar during the day were frustrated. Finally, after long delays, county election offi­cials asked precinct election officials to create Democratic primary ballots out of scrap paper. In turn, some precinct voting officials assured waiting voters that their scrap paper votes would count and that they could then leave with­out waiting for additional printed Democratic ballots. Many just left rather than cast votes on scrap paper that they feared would not count.

There was no consultation by the Chesterfield County registrar's office about voting on “scrap paper” with the SBE, with any Voting Rights Act en­forcers (Virginia was subject to the Voting Rights Act), or even with a lawyer for Chesterfield County (although the chair of the local electoral board was a lawyer and reportedly was involved in the decision to allow this manner of voting). Finally, even though many left the long lines without voting due to the delays and confusion, and others left after hearing that scrap paper would be used for ballots, some 299 eligible voters stayed and cast their votes on scrap paper, writing down the name of their preferred candidate. All these scrap-paper ballots were ultimately determined not to meet the requirements of state law and the county could not count them. So, it is clear that no fewer than hundreds of voters were disenfranchised by the way election officials in Chesterfield County ran the election, including voters who did absolutely ev­erything asked of them by the precinct election officials at their polling places. In fact, highly credible claims documented by affidavits suggest clearly that the number of disenfranchised Democratic primary voters in Chesterfield County totaled at least hundreds more given all the people who left polling places without voting, maybe considerably more than 1,000 voters.

The affidavits showed that voters left the long lines without voting for many reasons. For example, voters referred to jobs to which they could not be late and unaffordable economic costs associated with waiting, such as paying for extra child care if it was available. One voter estimated under oath that he saw 100 people leave the line in a single precinct. In other precincts, there was tes­timony that many more left without voting. One affiant saw at least ten cars enter a parking lot and, not finding any places to park, drive away. In affidavits, voters described having waited in cars as those with whom they had come to vote who were in better health, and better able to stand in line to vote, would do so. A spouse, neighbor, or friend would then call them to come in to vote when that person had made his or her way to the front of the line. Sometimes, however, even those individuals who did go in to save a spot in line never made it to the front of the line—meaning they had no chance to vote. Affidavits also described a lack of chairs and disabled parking at voting sites. One voter stated that she had to sit in another room and asked someone in line to come get her when they got close to the front of the line. Another woman who relied on an oxygen tank said in her affidavit that she had to leave without voting because of the long, disorderly lines as her oxygen came close to running out.

Of sixty-three voting precincts in Chesterfield County, nine ran out of Democratic ballots. Six of those nine, or two-thirds, were among the dozen precincts with the highest African American voting-age populations in Ches­terfield County. Those six precincts accounted for most of the voters given irregular pieces of scrap paper to use as Democratic ballots. Apparently, in at least one precinct, voters in a long line were mostly African American. With the supply of Democratic ballots exhausted in that precinct, the precinct workers invited the Republicans to come forward out of line and vote, since there were enough Republican ballots available. A stream of White voters left the line, coming forward to the front, bypassing waiting and frustrated Afri­can American voters. What an extraordinarily disturbing scene.

To rebut the inference that it had conducted the election in a way that dis- proportionally harmed Black voters, Chesterfield County's lawyers responded in subsequent litigation that most of the affected precincts were majority White. However, the county was referring to the racial composition of all registered voters in a precinct, of course—not those who vote in a Democratic primary election. As is clear from data across the nation, African American voters disproportionately support Democrats. Most were voting in the Demo­cratic primary in which voters were disenfranchised, not in the Republican primary that had enough ballots. This was reinforced by the affidavits de­scribing the stream of White Republican voters bypassing African American voters waiting in line to vote in the Democratic primary.

This mess generated considerable outrage after it occurred. The county reg­istrar alternated between apologizing, deflecting, and accusing. He was proud and sure of himself, of his expertise and judgment, and did not appreciate being questioned or criticized. As Primary Day unfolded, he denied problems were occurring, responded slowly, and insisted there would not be a rush of voters in the evening when he was asked early in the day to take measures to prepare for exactly that event in light of the severe problems that arose in the morning. In the days and weeks after the primary election, while occasionally acknowledging responsibility and apologizing for portions of what happened, he interspersed attacks and excuses and deflected responsibility.

The Aftermath of the Chesterfield County Mess—the Firms Pro Bono Effort

I led a pro bono effort by our law firm to address the disastrous primary elec­tion in Chesterfield County. The associate who was my main colleague in the effort was a talented young lawyer named Elizabeth Gilbert. Often, there are no specific firsthand sworn statements in these circumstances. We sought to document exactly what happened to voters because of the decisions by Chesterfield County election officials. It took considerable effort, but we col­lected sworn statements from voters who personally encountered problems, including those who could not vote or who cast scrap-paper ballots that did not count. Our original plan was to build a clear and strong record of officials' mismanagement and voter disenfranchisement and leave it to the SBE to act on that record and protect voters by ensuring that Chesterfield County would change its ways—and hopefully its senior electoral leadership.

We obtained many sworn affidavits from voters who were harmed, and we were even able to obtain a few from election officers in the affected precincts, describing the county election officials' failure to provide additional ballots despite repeated requests these precinct officials made over many hours. The affidavits also described the county registrar's office telling precinct officials to use scrap paper to create ballots. Voters describe waiting in line for hours, including trying to do so with children present. One described doing so and then, at the end, being handed and then completing one of the 299 scrap­paper ballots that were not counted. The affidavits taken together describe witnessing hundreds of prospective voters leaving the lines either as they waited for ballots or learned they would only get scrap paper. Some voters with disabilities explained why the lines and confusion prevented them from voting. We provided many of these sworn statements to the Virginia SBE as part of its investigatory process. I spoke at the SBE hearing on the matter, describing the conversations I had with the Chesterfield County registrar on Election Day while I was at the SBE as an observer, summarizing the affida­vits, and explaining what they showed.

The SBE investigation concluded, among other things, that Chesterfield County: (1) “improperly assessed voter turnout” and appeared to have failed to thoughtfully distribute ballots; (2) failed to fully staff its precincts; (3) ex­acerbated problems by instructing poll workers not to “split the poll books” to allow more than one check-in line at each precinct; (4) “failed to promptly respond” to ballot shortages by waiting several hours to print more or to fol­low the approved procedure of photocopying ballots; and (5) failed to accept assistance from the State Board of Elections, which offered to provide addi­tional poll workers and to print and distribute ballots.³

Although the SBE issued a highly informative, important, and critical re­port, it did not take or recommend any serious personnel changes and actions (which would have been difficult for the SBE to make happen). Neither were there any resignations by officials in Chesterfield County. Notwithstanding, the Chesterfield County registrar promptly stood up at the SBE meeting and said to the press and public that everyone should just ignore what he called the flawed conclusions contained in the SBE report. Along the same lines, one Chesterfield County Election Board member reportedly said earlier: “It really doesn't concern me about what the state board says.”⁴

Those rejections by Chesterfield County election leaders of the SBE's find­ings and recommendations, coupled with their problematic actions and fre­quently combative statements on primary Election Day and thereafter, led us to conclude that the matter should not stop there. We availed ourselves of forums at the Department of Justice and the United States Congress to en­sure that Chesterfield County would change its approach, respect voters, and properly administer the 2008 general election. Two major next steps were: the appearance of one of our pro bono clients before the Senate Judiciary Com­mittee; and our filing of a complaint at the Department of Justice, citing the Voting Rights Act, various disabilities laws, and other relevant constitutional and statutory law. The complaint included the affidavits, newspaper reports about the comments by Chesterfield County election officials, an analysis of relevant law, and the investigative report from the SBE.

Senate Judiciary Committee Testimony

One of our pro bono clients, who had voted on scrap paper and had her vote discarded, accepted an invitation to testify publicly at a hearing of the Senate Judiciary Committee. The topic of the hearing was readiness for the 2008 general election. Committee staff expressed a desire to hear from at least one witness with a human story about voting problems, and that is exactly what they got.⁵ We thought that her story was important to tell so that senators and the public would hear a true and compelling story from a real person who did everything asked of her—but who still was denied her right to vote. We interviewed her extensively and prepared a draft of her testimony based on what she told us. We incorporated her changes, and she practiced with us just before the hearing. We hoped that she would touch hearts as well as minds. Following is a summary of what she said.

Our client was an African American teacher who lived in Chesterfield County and taught middle school. She explained that she was not a public person, just someone who treasured the right to vote. As a child, she and other children in her family accompanied her grandmother to vote in Vir­ginia. Her grandmother earned money by cleaning houses and had to clean extra houses to raise the money to pay the poll tax when voting time came around, because that was still the era of barriers like poll taxes in the South.

Our client had brought her second-grade son with her to the polling place to teach him how important voting is—the way her grandmother taught her. She wanted him to come out for this historic primary election for president, where the choices were an African American man and a woman, something that had never happened before. He had been learning about Susan B. An­thony and the suffrage movement in school, so this especially resonated with her as a teaching opportunity.

Her mother, who votes at the same precinct, told her there was already a line at 6:15 A.M. Our client first tried to vote at the polling place with her son in the morning, around 7:30 a.m., but the parking situation was terrible and the line was too long. She decided to try again later because her son had to go to school, and she had to get to work as a teacher at a different school. She came back to the polling place with her son around 5 p.M. Cars were parked all over, includ­ing on the grass. When she got inside, the line was incredibly long, maybe with 200 people, snaking out of the cafeteria and through the hallways, down toward classrooms. She and her son were fortunate because his basketball coach was behind them in line. With his help and that of another person, she tried to keep her son engaged, a young child who had already had a long day.

She knew others were less fortunate. She watched others leave without vot­ing, including a mother with a daughter who had a disability. She listened to a woman in line near her explain that she had paid extra money to have her son stay late at day care so she could vote, but after an hour without voting and no clarity as to what was happening, that woman had to leave. She saw another woman who stood in line with the plan to get her disabled husband from the car to vote when she got close, but she had to leave without voting, since there was nowhere to sit and rest. She also watched Republican voters, mostly White, proceed to the front of the line because there were plenty of ballots for them—it was just Democratic ballots that ran out, and those voters happened to be disproportionately Black.

Still, she had no idea what was about to happen to her vote. After an hour and a half of confusion and uncertainty, election officials gave her and other voters pieces of scrap paper to use to vote—just torn-up, old-fashioned computer paper, green and with perforations—and her scrap-paper ballot would never count, notwithstanding that she was assured otherwise by her precinct voting officials.

She testified, sadly, that even her grandmother would have been surprised that her granddaughter lost her right to vote in 2008. Some of those listening in the hearing room shed a tear as she quietly told her story.

Optics/Strategic Considerations

We considered whether to file suit against Chesterfield County. We did not do so principally for two reasons.

First, one of our key objectives at that point was to protect our clients' voting rights by ensuring a fair and efficient 2008 general election in Ches­terfield County. If we could not secure removal of the Chesterfield County registrar, then we thought the best thing would be to keep the pressure on by getting the Department of Justice to take important oversight action and to send monitors to Chesterfield County for the general election. We felt that our case for that relief was strong.

Second, ironically, we were concerned that if we filed suit in federal court and won—and we thought we would win—we would have the right to an award of attorneys' fees from Chesterfield County. These fees would be very substan­tial, as our law firm was devoting hundreds of hours of pro bono work to the project and large Washington firms charge high rates. A suit might also be ex­pensive and time-consuming and might not provide timely and effective relief. Moreover, we were concerned that a lawsuit might unfairly be characterized as an attempt to malign the county and generate profit for big-city lawyers at the expense of county taxpayers. Those accusations would be wrong and unfair to our clients, all of whom were Chesterfield County residents and voters, and unfair to us as lawyers. We wanted to keep the spotlight on the county's failures and the steps needed for improvement. Fortunately, the firm was not pressing me to recover fees for our substantial pro bono investment.

Not surprisingly, the county disagreed with the complaint and arguments that we submitted to the Civil Rights Division of the US Department of Justice. In their responsive filing, they disputed some points and tried mightily to mini­mize others.⁶ They defended the decision to use scrap-paper ballots that disen­franchised so many voters by pointing a finger elsewhere, saying that Virginia erred in not counting them. Nevertheless, even they acknowledged that there were major failings by Chesterfield County election officials: “There is no ques­tion that the Chesterfield County Registrar and the Chesterfield County Elec­toral Board miscalculated turnout on Primary Day 2008, were slow in reacting to the spike in turnout when it actually occurred, and that these miscalculations led to a shortage of ballots and overcrowding due to insufficient staffing at poll­ing places.”⁷ The county also grudgingly acknowledged: “It is likely that the heavy turnout did make it more difficult for some handicapped and elderly vot­ers to vote in comfort. However, we believe any such problems were isolated.”⁸ According to the county: “The problem was exacerbated because inadequate provisions were made for quickly distributing additional ballots to precincts which needed them late in the day.” It also said: “We do not dispute that lines for voting in Chesterfield were extremely long in some voting precincts.”⁹

The Department of Justice announced that it would send federal monitors to Chesterfield County for the 2008 general election. It was the only jurisdiction in Virginia to receive that designation.¹⁰ The monitors attended. The 2008 gen­eral election went relatively smoothly in Chesterfield County and throughout Virginia. Our clients were protected. One very senior elected official in Virginia told me that the spotlight our pro bono efforts shined on Chesterfield County after the primary helped preparation for the general election not only in Ches­terfield County but also throughout all of Virginia for the 2008 general election. He said that other election officials in Virginia watched these events and saw the pressure we had applied on Chesterfield County. He said that none of the others wanted to become “that guy” and that every time they had a choice as the gen­eral election approached, they chose to do more to be prepared rather than less.

Lessons Learned: Crisis Lawyering on Election Day

The events that transpired in Chesterfield County in 2008 led us to iden­tify several important lessons. First: preparation and anticipation are crucial. Lawyers always need to be prepared. Because elections are sensitive, high- stakes exercises at the core of our democracy that arrive on schedule, serious, timely, and effective preparation is both possible and necessary. Also, because the “attack surface” is understood (e.g., voting machines, databases, voters' perceptions, etc.) and some of the flashpoints are as well (identifying and authenticating voters, student residency, long lines and delays, etc.), it is pos­sible not only to anticipate problems but also to develop ways to avoid or solve them. Lawyers can anticipate disputes and should prepare strategies and tools in advance for dealing with them. In some instances, this involves working up a strategic playbook—which may also include exemplars or drafts of relevant court papers, press releases, and the like.

Second: although general preparation and anticipation are crucial in a crisis, it is also important to have a long-term focus on how to avoid an election crisis. This long-term focus may not always be the job of the same lawyer who would be called upon to respond to a crisis. It is vital, however, that someone maintain a long-term and year-round focus on risks that could jeopardize election fairness or worse. This includes focusing on choices relating to the purchase or retire­ment of election systems and voting machines, budgets and funding, staffing, the availability of early voting, voter eligibility, changes to polling locations, and related issues. Ideally, this is someone who has worked to ensure that we make the investments necessary to secure our elections and the sanctity of the vote.

Third: organization is crucial, including a process to obtain reliable and cred­ible situational awareness. Developing situational awareness before, especially during, and after Election Day, and to be ready and able to use it promptly and effectively, is another important aspect of preparation. It is vital that we orga­nize the ways we receive and update information to ensure that it is accurate to the greatest extent possible. This will help to minimize the misinformation and rumors that so often arise in high-pressure, high-stakes situations such as elec­tions. Organization may include providing training in advance for volunteers and deploying them properly to polling places. It also may include a system to collect their input, as well as a boiler room (usually staffed by lawyers or others with substantial election experience) to serve as a point of contact and vet and prioritize reports and claims. It also includes having well-developed plans that include follow-up steps that can be implemented promptly. This may include having contact information for and an ability to reach key election and elected officials, the press, and others as needed. If the lawyer and the lawyer's team cannot reach the county registrar, a judge, or other official to highlight and re­solve a problem or to obtain a needed determination, then the result may well be failure, because timing is essential.

Fourth: the timely communication of accurate information is important. This is also a part of what it means to be organized. If information is not con­veyed effectively with enough consistency and granularity to be useful, then the crisis response will suffer, potentially lack reliability, and squander trust. As noted, I brought a laptop, an iPad, a cell phone and a printer to my Elec­tion Day work as an observer at the State Board of Elections, enabling me to see reports as they came in from my party's observers, follow up as necessary with the volunteers or with the boiler room for more detail, use email or texts to communicate and confirm information as needed, and print out certain reports and details for the SBE to provide to their staff for follow-up.

Fifth: solid and steady leadership is required. Planning and organization will not be enough if there is not enough leadership or sound management to act and make timely and effective decisions before, during, and after Elec­tion Day. In many crises, authority is unclear. This creates a risk that deci­sion makers will be excessively cautious, fear overstepping their authority, feel disempowered to act, perceive that they will not be held accountable, or passively wait for more reliable information rather than act decisively. How­ever, a worry on Election Day is that even if there is good leadership—and especially if there is not—an unprepared volunteer might represent the orga­nization poorly and do real damage. That damage may come from unneces­sarily alienating those who can help, destroying trust that has taken time and effort to develop, mischaracterizing and possibly overprioritizing a problem, and creating a distraction or possibly even a political problem. Good imple­mentation of other elements of this list will help avoid this problem, such as having clear objectives, access to good training complete with clear dos and don'ts, and having a good organization and a good communications network in place. These will help avoid, spot, and address issues quickly.

Sixth: good judgment and a measure of passion are important as well. All sorts of walls may stand in front of the lawyer seeking to resolve an election crisis. Moreover, timely choices need to be made, because the list of problems is usually always long. Prioritizing problems based on the impact they can have is crucial. While not every problem warrants a conversation with the most se­nior officials during busy and scarce Election Day time, too much patience and deference can lead to mistakes being made. That certainly does not mean that a lawyer should be excused for behaving rashly, but it does mean that in many instances there should be a very limited time before inquiring again about the status of some problems, or providing additional detail, or considering other solutions and other approaches. Situational awareness is important and requires that lawyers collect sound information from volunteers and use that informa­tion properly. Whenever possible, it is important to maintain reasonable situ­ational awareness of the status of problems and any efforts by election officials to address them. As discussed previously, one of the most effective Election Day experiences I ever had was when I was the Democratic Party's observer at Vir­ginia's SBE on Election Day at a time when the SBE secretary allowed observ­ers from both parties to sit with her in her office and listen to and sometimes participate in her phone calls. That gold standard unfortunately ended when the board secretary position was filled by the other party and the new official did not see the advantage of ensuring that level of transparency.

Seventh: related to the other elements above, it is critical to keep overall goals and timing in mind. Lawyers should be practical, effective, and some­times creative. Often that means not resorting to litigating in the courts. Along these lines, we typically advise volunteer monitors at polling places to intro­duce themselves to the poll workers in the morning before the polls open and to bring a box of donuts to share with them. Courtesy, relationship-building, respect, and mutual trust can go a long way toward solving problems.

Lawyers can play a crucial role in helping to protect the precious right to vote and the integrity of our elections. While this may happen on Election Day, some lawyers do this many other days of the year as well.

Elections will never be free from the risk of crises, but crises are far more likely to occur—and cause more damage—in the absence of good preparation. Therefore, it is critical to make prudent decisions to manage risk and to appor­tion resources wisely. We should not compress voting into thirteen or fourteen hours on Election Day, save for limited absentee voting where a voter has a specified excuse. That is when we have the most pressure and the least time to assess and meet a challenge. It maximizes the chances that we will disenfran­chise voters. We should allow voting over multiple days for any reason. We also need to focus on the big picture as well as the small. We cannot afford to be indifferent to the deficiencies in the capabilities, resources, and preparedness of any jurisdiction, because a whole state or nation can be affected by the outcome. Ultimately, a proactive approach is needed; crisis prevention is better than crisis management when it comes to Election Day lawyering.

NOTES

1 Andrews v. Koch (E.D.N.Y.), consolidated with, Herron v. Koch, 523 F. Supp. 167 (S.D.N.Y. 1981), cert. denied, 453 U.S. 946 (1981).

2 The program was focused narrowly on election protection and protecting the right to vote, not get-out-the-vote or other partisan programs.

3 Virginia State Board of Elections, Review of Presidential Primary, February 12, 2008, in Chesterfield County 34-35 (May 23, 2008) (on file with author).

4 Board of Elections Member Criticizes Some Democrats, Chesterfield Observer (May 14, 2008).

5 U.S. Senate Judiciary Committee, Protecting the Right to Vote: Oversight of the Department of Justice's Preparations for the 2008 General Election (110th Congress, Sept. 9, 2008) (testimony of Keshia Anderson).

6 See Office of the County Attorney, Chesterfield County, Letter to U.S. Department of Justice (Aug. 7, 2008) (on file with author).

7 Id., at 5-6.

8 Id., at 7.

9 Id., at 8.

10 U.S. Department of Justice, Department of Justice to Monitor Polls in 23 States Across the Nation on Election Day (Oct. 30, 2008).

12