Election lawyers hope to protect the vote

By Olivia Clarke

The 2000 presidential election forced the public to become more aware of election law, and the lawyers who practice this type of law.

“Prior to that, people didn’t generally understand that people practiced in a distinct area called election law,” said Craig S. Burkhardt, a partner at Barnes & Thornburg. “Now people are very aware of election law. You see election lawyers on television giving commentary on CNN and Fox, and campaigns have become very concerned about having good election advice.”

A small group of local lawyers practice election law. Most do not devote their entire practice to this area because the work can depend on the election season. But they say this practice has seen changes in recent years, and will get increasingly busy as the 2008 presidential election edges closer.

“I think that the election of 2000, on a national scale, really sort of intensified the focus on legal issues related to the ballot,” said John Fogarty, an associate at Burke, Warren, MacKay & Serritella. “There is this thought that the legal component of election strategy is quite key to winning any election. Many elections are so close that lawyers can make a difference.”

Inside the practice

Many lawyers discovered that an election law practice allowed them to combine their love of politics with their day jobs. While working in the Illinois General Assembly before law school, Fogarty met some of the leading Republican politicians, and gained a behind-the-scenes perspective about how elections are conducted.

This knowledge helped him after law school when he began working on election-related cases, and from there he built an election law practice.

Fogarty said he often handles ballot integrity issues, which can involve situations where a candidate wants to keep his or her name on the ballot, or wants someone removed from the ballot because he or she didn’t meet requirements.

On election day, he is often part of a local legal team that focuses on making sure everything that needs to happen at the polls, from a legal perspective, happens, he said. He has assisted on election day in various Illinois counties.

For example, since he represents the Illinois Republican Party, he assisted State Sen. Christine Radogno when she ran for state treasurer in 2006. He participated on the overall team that made sure the new voting machines worked properly, and no intimidation or overt electioneering occurred.

While the election process involves many facets, election lawyers mainly handle ballot access, election day activities, post-election relief or recounts, and campaign finance regulations, Burkhardt said.

Ballot access often deals with petitions, and getting a name on the ballot. While litigation sometimes occurs involving such things as whether the polls opened properly, or the accuracy and clarity of the ballot, he said. Special voting activities before the formal election may also involve litigation-related matters.

A candidate may challenge the results after the election because of such problems as non-functioning voting machines, or unregistered voters casting their ballots, he said.

Lawyers often assist with campaign finance situations because it can be very complex, and different campaign contribution laws and rules exist federally and statewide, he said.

Interested in politics since he was a child, Jeff Jurgens worked for different politicians and agencies during high school, college and law school.

Now an associate at Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, he and other lawyers at his firm specialize in election law.

“[Practicing election law] was a good way to keep involved in politics, and keep involved in the process,” Jurgens said. “If you like campaigns and you like the political process, it is really a pretty good fit.”

His election law practice mainly focuses on ballot access, election day operations and electoral board issues.

Jurgens said his firm specializes in local government law, and represents many municipalities. As part of being their corporate counsel, the firm often represents their electoral boards.

They provide advice to the local clerks they represent on various election questions that come up during the petition filing period, and on certifying the ballot.

If challenges are raised, they also provide advice and recommendations to the electoral boards.

They advise these boards through the hearing process. And they take the electoral board’s findings and draft an order that presents what happened, any evidence or witness testimony, and the ultimate decision. The lawyers then present this document back to the board for ultimate passage.

“With the election cycle, first comes the drafting of the petitions. Generally, you help your client draft the petitions,” he said. “The next phase is the objection practice. After that cycle gets through, it really kind of fast-forwards to election day and helping the candidate get through election day.

“You come in with election integrity programs and make sure the poll watchers are trained, and the operation is up and running on election day to address any issues that might come up.”

Richard R. Boykin, a partner at Barnes & Thornburg, represented the Cook County Clerk’s office during the last couple elections. If there is an election complaint on either side, he checks if something can be resolved.

During his career, Boykin served as chief of staff and legislative director to U.S. Rep. Danny K. Davis. He also was a Congressional Black Caucus fellow for former U.S. Sen. Carol Moseley-Braun, and as an LBJ intern for U.S. Rep. Bobby L. Rush. As the presidential election gets closer, election law will become a hotter topic, Boykin said. Election lawyers help ensure that people receive their right to vote, he said.

“If people are having challenges casting ballots, obviously that is a big issue for all of us,” Boykin said.

“I’ve always been the type of guy who is concerned about civil rights and human rights. I want to make sure there are no impediments to the voters actualization of casting their ballots.”

Changes within the practice

When Burkhardt first began practicing election law about 20 years ago, election lawyers mostly focused on issues related to getting candidates on the ballot, and making sure the conduct on election day followed statutes. And before the 2000 election, recounts were fairly unusual, and only happened in the closest of circumstances, said Burkhardt, from Barnes & Thornburg.

But candidates and referendum committees today want to take a closer look at potential recounts, and evaluations or post-election remedies, he said.

Campaign financing requirements have become more professionalized, he said.

In the past, candidates may have hired a best friend or family member as the treasurer of the campaign because they trusted them.

“Now that has become professionalized really because the requirements for record keeping and the restrictions on contributions have become much more complex,” Burkhardt said.

Within the last few years, the legislature adopted several new provisions of the Election Code that expand the way people can vote and participate in elections, including early voting, grace period voting and provisional voting, said Jurgens, from Ancel Glink.

Although this helps ensure more people can participate in the process, it requires candidates to rethink and expand their election day integrity programs to fight against voter fraud, and ensure fair and honest elections, he said.

The body of law associated with the election practice is growing very rapidly, said Michael Kasper, an election lawyer at Fletcher, Topol, O’Brien & Kasper.

“I think there are a lot more cases, sort of high-profile cases, being heard,” Kasper said. “I think the attention being paid to it causes people to litigate election-related issues more frequently. A lot of election cases have found their way to the U.S. Supreme Court in recent years.”

The 2000 presidential election caused some people to lose faith in the election process, Kasper said.

“The lack of faith in our electoral process was manifested in 2000, and demonstrates itself with a greater amount of litigation about the election process,” he said.

The government, at the local, state and federal level, regulates elections more thoroughly, Kasper said. The regulations are longer, more detailed and change frequently.

Campaign finance regulations fall under that category, Kasper said.

The proliferation of “soft money” in the 1990s and early 2000s led to the Bipartisan Campaign Reform Act of 2002, which detailed the expansion of government regulations of campaign finance.

Eric M. Madiar, an associate in the government and regulatory law practice group at Freeborn & Peters, served as assistant legal counsel to the Speaker of the Illinois House of Representatives from 2000 to 2003.

During that time he was personally involved in the rewriting of the Illinois Election Code, and helped implement the federal Help America Vote Act in Illinois.

States are now required to have a system in place that allows people with disabilities to vote without assistance, and that typically means having a touch-screen voting machine in each precinct, he said. It also requires provisional voting so that people can vote despite not being able to demonstrate their voting qualifications while at a polling place.

“Persons voting provisionally are not counted on election day because it takes a period of time to verify,” Madiar said. “As part of election recounts, an election lawyer needs to be familiar with the procedures. Provisional voting could cause ballots to be spoiled or disqualified if the proper process is not followed.”

Preparing clients

Chris DeLacy, an associate at Holland & Knight, said the passage of the Honest Leadership and Open Government Act of 2007 changed the lobbying and ethics landscape.

The act amended parts of the Lobbying Disclosure Act of 1995, and put harsher penalties into place for lobbyists who violate the act. And, for the first time, if a person registered as a lobbyist causes someone else to violate the rules, that lobbyist, and potentially his or her employer, is in violation of the Lobbying Disclosure Act.

In the past, the House and Senate rules didn’t apply to anyone outside of Congress, but now anyone registered as a lobbyist faces restrictions on gifts given to members of Congress and their staff, DeLacy said.

Internally, this change impacts Holland & Knight because the firm has registered lobbyists, and must create an internal compliance program, he said.

Externally, the firm leads training sessions to help its clients deal with the changes.

Some clients want the firm to help them develop internal compliance programs, and are outsourcing the disclosure requirement legwork to the firm, he said.

Every entity registered under the Lobbying Disclosure Act will need to certify in July that it read and is familiar with the House and Senate gift and travel rules; and have not caused anyone to violate them. This applies to registered lobbyists, and entities that employ them, DeLacy said.

“We’ve done a lot of education,” he said. “We’ve done four webinars that have been available to our clients, and also made available to others. “We’ve done internal training sessions for clients, which are similar to the webinar, but focused on the client.”

Burkhardt said he began seeing increases in ethics requirements and regulations beginning in 1988 when he was counsel to the Republican Leader of the Illinois House of Representatives.

“From that point in time until now there has been a tightening of the ethics regulations, and there also has been increased enforcements of those ethics regulations,” he said.

“Political candidates and elected officials have to be very mindful because these regulations continue to be improved and that compliance has become more complex. Prosecutors and others involved in the enforcement of these regulations have placed a higher priority in this area.”

In an effort to better serve its clients in the area of campaign finance, Dykema launched a campaign finance Web site in July. It provides information regarding campaign finance matters, election law, and political compliance issues in California, Illinois, and Michigan, where the firm has offices. It also outlines applicable federal laws.

In the future, Texas election law information will also be added to the site. Resources exist for people who want to get involved or are already involved in politics, said Mark Boozell, a government policy adviser at Dykema.

The site can help them make sure they meet the ever-changing election regulations, Boozell said.

“We try to keep up on the lobbying and ethics rules, regulations and laws,” he said. “It is tough to stay compliant on this stuff sometimes. The more we can do to keep track of what the changes are, and get them out on the site, the more they will have an easy reference tool.

“Our hope is that they have one easy access point for whenever they have any questions,” he said.