Open Letter

Open Letter to States and American Lawyers to Protect Against Voter Suppression

Photo Credit: Boston Globe, Getty Images

Date: Thursday, June 11, 2020

Candidates already are battling with growing intensity for victory in November. Less visible but equally intense are battles, old and new, over who gets to vote in those elections. In Florida, for example, citizens by a two-thirds majority passed an initiative restoring voting rights to felons who had completed their sentences and were released from prison, thus restoring voting rights to large numbers of minority citizens. In response, the Florida legislature passed a law prohibiting those newly enfranchised citizens from voting if they still had unpaid fines, which a high percentage still did. In North Dakota, the legislature tried to disenfranchise scores of Native Americans by requiring all voter registrants to have a street address with full knowledge that those who live on reservations typically had no street addresses. Before it was struck down in a blistering opinion by Federal judge Eleanor Ross, Georgia’s “exact-match” voter ID law prevented people from voting if they showed up at the polls with a disparity of any kind – even in punctuation – between the ID they presented and the way their name was listed on official documents used by the state.  

Other weapons are subtler but no less effective. On Super Tuesday last March, voters in minority neighborhoods, cities and towns throughout the State of Texas were confronted with discouragingly long lines as they waited to vote because of a year-long effort that had closed hundreds of polling stations across the State. Many of those that remained had insufficient voting booths. In Wisconsin’s mid-April election, efforts, albeit largely unsuccessful, were made to tamp down voter turnout by requiring people to vote in person despite the COVID-19  quarantine and by delaying distribution of mail-in ballots to those who were entitled to use them. 

These recent actions to suppress the vote reflect a disturbing pattern.  For decades, the Republican party has intentionally implemented a strategy of suppressing voter participation – particularly among minority, low-income and young voters – to win elections. This electoral strategy is premised on interfering with American citizens’ exercise of their fundamental, constitutional right to vote – our most critical constitutional right because it is “preservative of all other rights.”

Voter suppression is also contrary to the arc of American history’s progressive expansion of the right to vote by eliminating barriers previously imposed on specific groups of Americans due to wealth, race, gender or age.  Over time, Constitutional amendments steadily removed barriers that had disenfranchised millions of Americans. Congress participated by, among other things, enacting statutes that prohibited States with long histories of voter suppression from passing new laws without oversight from the Justice Department. Later, it added provisions to facilitate voting by citizens who had difficulty with the English language or who had physical difficulties that interfered with their ability to operate a voting machine. More recently, it enacted laws that facilitated voting by mail for those in the military and those who resided in foreign countries.  

Now, however, President Trump has begun to revitalize voter suppression efforts, revealing his true concerns.  Two months ago, Congressional Democrats sought to include provisions to facilitate voting by mail, same-day registration and early voting in the $2.2 trillion Coronavirus Aid, Relief, and Economic Security Act, or CARES Act. Their efforts failed because of Republican led opposition. Later, the President explained in a March 30 interview on Fox & Friends that the Democrats’ proposals “had things, levels of voting that if you’d ever agreed to it, you’d never have a Republican elected in this country again.” 

Further, notwithstanding the coronavirus danger posed by in-person voting, the President strongly urged the members of his party to oppose – for partisan reasons – expansion of mail-in ballots to all eligible voters.  “[F]ight very hard when it comes to state-wide mail-in voting,” asserting that it “doesn’t work out well for Republicans.”  He also invoked an unfounded claim that his party has repeatedly used for decades to support unnecessary restrictions on voting, averring a “tremendous potential for voter fraud.”  In fact, “[s]tudies have shown that all forms of voting fraud are extremely rare in the United States.” Even the Commission the President, himself, established to investigate election fraud disbanded in 2018, without making findings of any fraud.

Intentional efforts to interfere with, and prevent, eligible citizens from exercising their fundamental American right to vote, strike at the very heart of our democracy.  State legislatures, governors and secretaries of state need to scrutinize the election process and protect against any attempts at voter suppression.  Such suppression includes, but is not limited to: closing polling places to create long waiting times, giving false information to prospective voters to discourage or prevent them from voting, imposing unnecessary registration requirements, intimidating voters at the polls, and imposing financial obligations as a prerequisite to voting.

Throughout our history, lawyers have been at the forefront of resistance to voter suppression and the many forms it has taken. Lawyers drafted the constitutional amendments expanding the right to vote that Congress and the States later adopted. Lawyers were at the forefront of efforts to resist voter suppression during the Civil Rights era of the 20th century. Lawyers have led challenges to more recent suppression efforts like those outlined above.  

Once again, we need lawyers to support States in monitoring and acting against such suppression.  And we need lawyers, and concerned citizens, to vigorously oppose any efforts by governmental agencies or private parties to suppress voter turnout in whatever form those efforts appear. In an era when the ability to get to polling places physically may be in jeopardy, we also need lawyers to lead efforts for voting by mail.

Now, we need the States and the lawyers in them to act aggressively, creatively and energetically over the next six months to ensure that the consent of the governed is truly reflected in the outcome of the upcoming November elections. “Eternal vigilance is the price of liberty.” 

Signatories:

John Achatz – Access to Justice Fellow
Michael Altman – Former Partner
R. Peter Anderson – Former Judge, Massachusetts Trial Court
Paula Atkinson – Attorney and Concerned Citizen
Stanley Balis – N/A
Erica Flores Baltodano  – Professor, Constitutional Law, San Luis Obispo College of Law
Charles Baron – Emeritus Professor Boston College Law School
Elizabeth Bartholet – Prof of Law, Harvard University
Lynn Bechtol – Public Defender
Barbara Berenson – Senior Attorney (ret.), Mass. Supreme Judicial Court
Marilyn Bernhardt – Associate General Counsel, Amedada Hess Corp.
Laura Blank – N/A
Stacey Bowers – N/A
Fiona Brophy – Partner, Perkins Coie
Hank Brothers – N/A
Cynthia Buness – Former Senior Attorney with Motorola
William Carroll – Career Government, Retired as General Counsel, Ballistic Missile Defense Organization
Cathleen Cavell – Practicing lawyer
David Clark – N/A
James Clark – Partner, Sidley Austin LLP, retired
Brian Clemow – Retired Law Firm Partner
Ed Cogen – Former General Counsel and Deputy Director, Mid-Atlantic Region, U.S. Office of Economic Opportunity  
James Cotter, III – Law Offices of James J. Cotter, III
Charles Crumpton – Mediator/Arbitrator
Margaret Oertling Cupples – N/A
Claudia Damon – Retiered, Inactive
Gill  Deford  – Retired public interest lawyer
Robert Dell – Retired attorney
Carol Didget Pomfret – N/A
Raymond  Dougan – Former First Justice, Boston Municipal Court, Central Division
David Driesen – University Professor, Syracuse University College of Law
Fernande (Nan) R.V.  Duffly – Former Justice of the Massachusetts Supreme Judicial Court
Stewart Edelstein – Principal of a law firm
Evan Falchuk – Former independent gubernatorial candidate for Massachusetts and founder of the United Independent Party
Walter Featherly – General Counsel, Private Sector
Cary Feldman – Attorney, Feldesman Tucker Leifer Fidell LLP
Sarah Felix – Former Assistant Attorney General, state of Alaska (retired)
Sarah Felix – Former Assistant Attorney General, state of Alaska (retired)
Nicholas Fels – Retired partner, Covington & Burling LLP
Eugene R. Fidell – Counsel at Feldesman Tucker Leifer Fidell LLP and Florence Rogatz Visiting Lecturer at Yale Law School
Barbara Hayden Fitts – Counsellor at Law
Bruce Fox – Partner
Elizabeth Frantz  – Attorney 
Christopher Gagin – Former Magistrate
Gayle Garrigues – Retired state prosecutor 
Edward Geffner – Retired Attorney
Leonard Glantz – Retired professor 
Phyllis Goldfarb – Jacob Burns Foundation Professor, George Washington University Law School
Keith Gordon – Former Assistant AG for State of NY
Joan Graff – President, Legal Aid at Work
Andrew Grainger – Former Associate Justice, Massachusetts Appeals Courte
Scott Harshbarger – Former National President of Common Cause and two-term Attorney General of Massachusetts
M. Raymond Hatcher – Sloan Hatcher Perry Runge Robertson Smith & Jones
Eric Hirschhorn – FOrmer Under Secretary for Industry and Security, U.S. Department of Commerce
William Humenuk – Former Partner, Dechert LLP, Retired Senior Vice Peresident and General Counsel of Buzzi Unicem USA
Joel Kaye – N/A
Thomas Kite – Solo practitioner
Eric Kocher – Attorney at Law
Dane Kostin – N/A
David Krakoff – N/A
Robert Kuenzel – Retired Partner, Proskauer Rose, and Principal, Kuenzel & Associates
Eleanor Roberts Lewis – Chief Counsel for International Commerce, U.S. Department of Commerce (retired)
Julie Locascio – Attorney
Carolyn Longstreth – Former Senior Assistant State’s Attorney, Connecticut
Fred M. Lowenfels – General Counsel Emeritus at Trammo, Inc.
Ellen Lubell – Principal, Tennant Lubell, LLC
Will Manuel – N/A
Stanley J. Marcuss – Former Counsel to the U.S. Senate’s International Finance Subcommittee; former Senior Deputy Assistant Secretary in the U.S. Commerce Department; former partner, Milbank, Tweed, Hadley & McCloy; former Senior Fellow at Harvard’s Kennedy School; retired partner, Bryan Cave Leighton Paisner
Kate Margolis – N/A
William Markstein – Senior Vice President & Chief Financial Officer
L Stephen McCready – Attorney at Law
Robert  McDaniel – Attorney at Law 
James F. McHugh – Former Associate Justice, Massachusetts Appeals Court
Thomas Mela – Retired Managing Attorney of the Massachusetts Advocates for Children
Michael Meltsner – Matthews Distinguished University Professor of Law, Northeastern University 
Richard Meserve – N/A
Bruce Mohl – Retired Justice, NH Superior Court, Former NH Deputy Attorney General
John T. Montgomery – Ropes & Gray, former managing partner (retired)
John Murdock  – N/A
Leslie Newman – Professor of Law  Cardozo Law School
Cheryl Niro – Former Partner, Quinlan & Carroll, Past President, Illinois State Bar Association
R. Daniel O’Connor – Partner Ropes & Gray LLP
Edward Opton – University Counsel, Office of the General Counsel, University of California
Scott Pomfret – Founder and Sole Member
Anthony Quinn – College Instructor, J.D.
Gershon M. (Gary) Ratner – Co-founder, LDAD; Founder & Executive Director, Citizens for Effective Schools; former Associate General Counsel for Litigation, U.S. Department of Housing & Urban Development; former Associate Director for Litigation, Greater Boston Legal Services
Stephen Richmond – N/A
Allan Rodgers – Retired Executive Director, Massachusetts Law Reform
Gary Sampliner – Former Senior Counsel, U.S. Treasury Dept.
Robert Saudek – Former Managing Partner of Morris, Manning & Martin 
Elaine Sierra – Public Policy Director of Citizens for Choice, former Appropriations Assistant to the late Congressman Edward R. Roybal
Don Smith – N/A
Miguel Smith – Law Firm Partner
Lisa Smith – Collaborative Lawyer and Divorce Mediator
Gary Staff – N/A
Marshall Stein – Former Assistant U.S. Attorney, District of Massachusetts; Former Chief Staff Attorney, U.S. Court of Appeals for the First Circuit
David W. Steuber  – Retired partner, Jones Day
Peter Sturges – Vice chair, Common Cause Massachusetts
Sandy Tarrant – Assoc. Clinical Professor, Boston College Law School
Daniel Taylor – N/A
Ira Waldman – Partner, Cox, Castle & Nicholson LLP
Henry Waxman – Member of Congress 
Lynn Weissberg – N/A
Lisa Weissler – Retired State of Alaska Assistant Attorney General
Peggy Wiesenberg – Access to Justice Fellow
Stephen Wizner – William O. Douglas Clinical Professor Emeritus, Yale Law School
Lucien Wulsin – Founder and retired Executive Director, Insure the Uninsured Project (ITUP)
Antonio Zuniga – Member of the Bar