Pitching in for democracy
More lawyers than ever joined efforts at the polls

Issue December 2004 By Krista Zanin

Attorney David Sullivan stands with Howard Dean and his staff, who worked in Ohio for the Democrats on voter protection. Sullivan is pictured third from right.
For the 2004 presidential election, the Bay State had more representation at the polls across the country than just the Democratic nominee's name on the ballot.

An army of lawyers from Massachusetts traveled to states across the country to make sure voters' rights to cast ballots would be protected.

Spurred on by the Florida recount of the 2000 presidential election, lawyers took leaves of absences from their jobs, cashed in their vacation time and boarded with strangers to protect the polls. Whether it was with either political party or nonpartisan groups, never before had so many attorneys galvanized for Election Day.

And many of those lawyers, particularly those from the Kerry/Edwards campaign, hailed from Massachusetts, including David Sullivan, David Friedman and Bill Lee, who headed up the legal efforts for the battleground states of Ohio, Florida and Washington, respectively, for the states' Democratic parties.

"The legal effort was a function of the national disenfranchisement that took place in 2000, both unintentional and intentional acts by others, ranging from bureaucratic bungles like butterfly ballots to a pattern of Republican intimidation they are currently under a federal court order to desist from," said Kerry advisor and Boston attorney Jack Corrigan, who served as national director of voter protection for the Democratic National Committee.

"The idea was that if we had a large group of people who were trained in voting rights we could prevent much of that from taking place, thereby protect people's rights to vote and protect and improve democracy."

In the Kerry/Edwards campaign alone, more than 17,200 lawyers from across the country volunteered their time. This includes more than 3,600 lawyers in Ohio and more than 3,100 lawyers in Florida.

Court fights

Leading the effort in Ohio, Sullivan took vacation leave from his job as chief lawyer for the state Senate to serve two months as voter protection coordinator, staying in Columbus with a family who donated a spare bedroom. Sullivan organized legal efforts, from seeking injunctions in federal court to organizing individuals to be present at each polling place as ballots were counted.

"Since 2000, people have become very well aware of legal problems that can really disrupt an election, and therefore I think both sides decided they really need to protect against those problems in advance," Sullivan said. "Before 2000 no one would have thought of having a large number of lawyers around to prevent problems and this is really what you need."

Heading up the legal efforts in the Sunshine State, Friedman agreed.

"Unlike 2000, where a lot of problems happened, our strategic approach was to fix the problems before Election Day so they didn't happen," said Friedman, who took a three-month leave of absence from his position as counsel and chief policy advisor to Senate President Robert E. Travaglini.

Sullivan's legal team dealt with 10 lawsuits during the course of the campaign, including an injunction won in the federal court and upheld by the Sixth Circuit relating to a tactic Republicans used to challenge voters. The party sent out postcards to registered voters and then sought to challenge about 35,000 voters based on postcards that were returned to the party.

"We went to federal court and got an injunction to stop local boards of election from holding hearings even on the challenges because the grounds for them were so feeble … it was one of the more egregious examples of the shenanigans by the opponents that we came across," he said.

The push didn't end until nearly the polls closed. The Ohio Democratic legal team was back in court on Election Day to require polling locations to use paper ballots in addition to electronic machines to help expedite voting for the hundreds of voters standing in line. For example, in Knox County, where Kenyon College is located, there was only one machine for the thousands of students who wanted to vote.

"The line was more than five hours long," Sullivan said.

Friedman's legal team also faced its share of lawsuits. For instance, the team fought a ruling issued by the Florida secretary of state that would deem invalid new voter registrations if the new voter forgot to check a box stating that he or she was a citizen even though on the same form the voter had already signed the form under oath stating that he or she is a United States citizen.

"As a result of the suit, almost every county changed the rule and decided they would let it count," Friedman said.

From a legal perspective, the work also was challenging because it involved both politics and legal issues. And it was offset from typical litigation due to the intense timetable.

"You are traveling at light speed," Friedman said. "Everything is compressed. A lawsuit that normally takes months and years, takes hours and days in the course of election law."

Educating voters, poll officials

Educating election officials also was a major part of Friedman and his legal team's efforts, so that if Republicans challenged voters in the polling place the officials were aware of the process so that voting rights would not be infringed.

Friedman, who was in Florida in 2000 during the recount, said the process this year worked much more smoothly. Though Kerry lost the election, Friedman is proud that individuals were allowed to vote.

"Our legal team did make a huge difference in the local election," Friedman said. "More than 7 million ballots were counted and there were only about 10,000 provisional ballots … That means almost every person who showed up to vote was allowed to vote … If we didn't have this operation, Florida would have looked a lot more like Ohio, with a massive stack of provisional ballots. We could have had two Ohios on election night."

Another Massachusetts lawyer pitching in for Democrats was Margaret D. "MarDee" Xifaras, a partner in the New Bedford law firm of Lang, Xifaras, and Bullard. Xifaras and her husband, retired Superior Court Judge John Xifaras, traveled to Columbus, Ohio, several times between Labor Day and Election Day to get out the vote. She likened her work to that of being a senior girl scout, making sure people would vote in Franklin County.

"When anyone would question their assignment, given that they are lawyers, I would remind them a 23-year lawyer and 17-year judge was the driver of van number three, my husband John, also known as Judge X," said Xifaras.

Xifaras called the election the most significant in those that she has been involved with in the past 30 years.

"Part of the reason was both anecdotal and behind-the-scenes information that suggested that Republicans would be challenging in many precincts in our targeted high performance areas," Xifaras said. "Therefore we not only had to cover that, but we had to be out in the community doing voter education to guard against miscommunication and outright suppression."

Though disappointed by the ultimate outcome, Xifaras was heartened by the impact she and others had.

"One of the high points for me was to be hustling around at the end of the day on Tuesday, Nov. 2, literally bringing water, coffee, candy and apples to folks waiting in line for two to three hours," she said. "To be there watching that small piece of history was an honor."

An international perspective

Compared to where Chelsea attorney Mark E. Pelosky has monitored elections, the Nashua, N.H., polling place he was stationed at practically was in his backyard.

Pelosky has been to Cambodia, Bosnia and Herzegovina and Montenegro to ensure democratic elections. A week before the 2004 election, Pelosky was in Belarus monitoring the election, and four years ago during the 2000 election he was in Kosovo, where people said to him, "What are you doing here? Get back home. The problem is back home."

That's what prompted him to join the nonpartisan election organization America Comes Together and its subsidiary, America Votes 2004, for this election.

"Nobody's right to franchise should ever be illegitimately denied and I think there is a lot of room within the system for people to be disenfranchised," said Pelosky, who became interested in international work after serving more than two years in the Peace Corps in Togo, West Africa.. "I've seen too many people disenfranchised overseas and read too many questionable stories in the states to make me feel uncomfortable not to do something."

Pelosky, who speaks Spanish fluently, was sent to the Nashua polling place to do a variety of tasks to make sure the polling process went smoothly. He assisted voters who were registering for the first time that day.

Though New Hampshire allows individuals to register to vote on Election Day, individuals still must later comply with requirements, such as registering their car in the state. Pelosky helped explain those conditions.

In addition, lawyers at the polling place were calling the state Attorney General's Office to get clarification on exactly what identification would be required to register. Pelosky argued that individuals should only be required to present a preponderance of the evidence, such as a utility bill or envelope showing their local address, to register. And if someone claimed they needed assistance in the voting booth because they could not read or write, Pelosky and other lawyers were on hand to make sure those giving assistance were doing so pursuant to the voter's interests and would swear to that under the pains and penalties of perjury. Poll watchers also had to call City Hall around 6 p.m. that night to call in for extra assistance due to long lines forming.

Yet, despite the long day, Pelosky said he was impressed with the efficiency with which the election workers were running the polls.

"The local polling committee in Nashua really did an excellent job," he said. "They stood their ground on certain instances, made us prove the law to overcome their initial denials and they relied on experts … It was a cooperative effort and people did quite well under the circumstances."

And it was a busy day. Of the 3,000 or so registered voters, about 2,500 showed up to the polling location with an additional approximate 800 new registered voters.

"I am happy this election did not go back into the courts," he said. "We had so many newly registered voters … and hopefully this helps some people better understand they have an impact."

Institutionalizing the legal effort

Lawyers involved in this year's election also predicted that the groundswell of attorney involvement in elections will become perpetual. They cited the aftermath of the 2000 recount, combined with election law becoming more complicated, as reasons as well as the parties' divergent views on voting initiatives: voter protection vs. ballot security. In addition, the use of provisional ballots will continue to be an issue needing more clarification.

"I think it will be institutionalized," Corrigan said. "I think you'll see it being done every time."

Lee, who took a leave of absence from his job as an attorney with The Trust for Public Land in Boston to head up the Washington state efforts, agreed.

"The legal effort is definitely the wave of the future," Lee said. "It's the legacy of Florida 2000 and I think it's going be an enduring effort."

Lee predicted legal efforts would become more targeted, looking for example at states with strict absentee ballot procedures and making sure there is uniformity across the country with voting machines.

"I was lucky in some respects, because Washington state was ahead of the curve," Lee said. "Sixty percent vote absentee ballot. People are busy. It gives them time to sit at kitchen table and think about it."

Kerry won in Washington, which also has a progressive view on provisional ballots, Lee said. For instance, if a Seattle resident has to travel to Spokane on business on Election Day, he or she would be able to vote in Spokane on state and federal issues.

"The view in the state of Washington is, 'we want you to vote. We are not going to penalize you. We'll let you vote,'" Lee said.

Lee said he hoped both the Democratic and Republican parties would be able to find some common ground during the next four years.

"Democrats are more inclined to be progressive about allowing people to vote with provisional ballots if they've moved recently, the Republicans are not," Lee said. "But I think we've got to find some common ground on reliable voting technology and registration methods and registration databases so that the Republicans can be sure the voters are not registered in three different counties and Democrats can be sure that minority voters and young voters and elderly voters aren't being pushed off the rolls indiscriminately.

"If we can get there, then we'll see less lawyers in polling places and less lawsuits."

In the meantime, the lawyers said they feel honored to be taking part directly in democracy by protecting the most important of rights.

"This is the most important civil right in a democracy," Friedman said. "It is the one right that opens the door to everything else. It is so important to protect people's voting rights. … Most of all, nothing is more fulfilling than having somebody who was not sure they would vote, get to vote, and have them say, 'Thank you. Thanks to you I got to participate in a democracy.'"