How Lawyers Can Protect Our Democracy

By Susan J. Kohlmann, President, New York City Bar Association

Our elections and our very democracy are under grave threat. This is not hyperbole or exaggeration. These are the times we are living in. There have been other times in our history when we have been slow to realize the gravity of the situation we are facing and, with hindsight, wished we had spoken up, done more, taken a stand. As lawyers, in some ways we are particularly well equipped to respond to today’s threat. I hope you will join me in taking action now.

As you read this, you may think you do not want to participate out of fear of appearing “partisan.” Or perhaps you don’t know where to begin. As you will read below, protecting democracy and the right to vote is not about partisanship, and there are numerous ways you can get involved today.

It is simply never partisan to defend democracy, to defend the freedoms embedded in our Constitution and to defend the rule of law. It was not partisan when a group of lawyers formed the Association of the Bar of the City of New York in 1870 to counter corruption in the judiciary. Nor was it partisan in 1920 when lawyers, through the City Bar, condemned the expulsion of socialist members of the New York legislature; nor in 1949 when they defended the rights of individuals testifying before the House Un-American Activities Committee, writing that “in striving to achieve security we dare not lapse into the oppressive measures of the Communist enemy.” Nor was it partisan when lawyers strongly supported the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

And today it is not partisan for the New York City Bar Association, and indeed for lawyers everywhere, to protect the right to vote and the integrity of our elections. The City Bar’s report “The Consent of the Governed: Enforcing Citizens’ Right to Vote” reminds us that immediately after declaring the “unalienable rights” of “life, liberty and the pursuit of happiness,” the Declaration of Independence states that to secure these rights, governments derive their just powers from “the consent of the governed.” In our democracy, that consent of the governed is determined through our free and fair elections.

Each of the recent City Bar Presidents have been of one mind on the “partisan” question as the threats to the rule of law have mounted – to the point where the 152-year-old association recognized the need for the first time in 2019 to create a Task Force on the Rule of Law to respond to domestic threats to our democracy:

John Kiernan – November 2016
“One of the defining characteristics of our shared national personality and heritage is the willingness to accept peaceful transitions of presidential leadership after an election….Another defining value that should equally cut across political lines, and that equally warrants celebration, is the value of unreserved solicitude for and protection of the rule of law, the Constitutional and other rights of all, the needs of individuals and groups who are unable to protect themselves and the fair, efficient and orderly administration of justice….The City Bar has consistently believed that advocacy in support of these values, especially if they appear to be challenged by proposed executive, legislative or judicial action, is entirely consistent with its institutional commitment to non-partisanship and inclusiveness of the full spectrum of political views. As an association of lawyers, we must be champions of the law.”

Roger Juan Maldonado – December 2019“Our mission calls upon us to promote law reform in the public interest….This has been done without regard to politics or partisanship. So, for instance, in 2010, with Democratic majorities in both statehouses, we argued that attorney-legislators could ethically be made to disclose client names – and should disclose them – as an outside ‘source of income’ to which the public would have access. And, over many years and without regard to which party holds power, we have consistently argued for the creation of a single, independent statewide ethics enforcement agency with authority over both the executive and legislative branches. We called out Obama Administration officials for failing to be transparent regarding targeted killings, for failures to preserve due process at Guantanamo and for actions taken against women and children crossing the Southern border into the United States.”

Sheila S. Boston – February 2022
“Because efforts to restrict or undermine access to the ballot or to interfere with the administration of elections are direct threats to the democratic process and the rule of law in our nation, I believe it is a misnomer when some call defending the right to vote ‘political’ or ‘partisan.’ How is it partisan to defend and unburden the right to vote and to make sure that our election administration processes remain nonpartisan and independent?” [Remarks delivered at the ABA’s Midyear Meeting in support of ABA Resolution 800 calling on legislatures to preserve and protect the right to vote in U.S. elections.]

Today, in September of 2022, I reiterate that it is far from partisan to protect our elections. Rather, it is necessary. Judges were critical following the 2020 presidential election, in readily dispatching dozens of lawsuits, most if not all dubious if not frivolous. Those judges, nominated by presidents of both parties, protected the rule of law, acting not out of partisanship but rather upholding their judicial oath of office to “faithfully and impartially discharge and perform all the duties incumbent upon [them] under the Constitution and the laws of the United States.”

But there are signs that upcoming elections will require additional protection. That’s because partisan election officials are taking the reins from nonpartisan election officials in battleground states across the country. An alarming number of candidates nominated for state and federal offices with authority over elections are election deniers, and election administrators across the country are faced with threats of violence and criminal prosecution by partisan officials.

What can we as lawyers do? The City Bar’s Rule of Law Task Force and Election Law Committee have compiled several opportunities for lawyers to make a difference, and the City Bar has set up an “Election Protection” page on our website that will be updated as new information and opportunities become available.

Poll Workers: With the retirement of many poll workers because of Covid, age or threats of violence and other forms of intimidation, poll work is among the most important services lawyers can provide at this time. How reassuring would it be to have officers of the court and guardians of the rule of law – who swore to uphold the constitutions of their nation and respective state – working the polls when issues arise? The National Association of Secretaries of State has a web page where you can find out how to become a poll worker in your area. “We the Action,” an organization connecting lawyers with causes, also has a website where you can sign up to be a poll worker and receive information updates. Further information, including which states offer CLE credit for lawyers doing poll work, can be found at the ABA’s Poll Worker, Esq. website.

Information Hotlines: Hotlines provide immediate voter access to information about polling places, eligibility, early and mail-in voting, provisional ballots and other questions typically asked by voters. Hotlines can be staffed by law firms or by individuals working through non-partisan organizations. Probably most well-known is the Lawyers Committee for Civil Rights under Law’s “Election Protection” hotline (1-866-ourvote). Information about the Lawyers Committee program, including sign-up procedures, is available at https://866ourvote.org/volunteer, which routes potential volunteers to the “We the Action” website mentioned above, where lawyers can volunteer for call centers, field work at polling places, or both.

Pro Bono Legal Help: A new nonpartisan organization, the “Election Official Legal Defense Network” (EOLDN), has recently been created by two prominent election lawyers – Robert Bauer and Ben Ginsberg – with extensive experience representing, respectively, Democratic and Republican candidates in previous elections. Lawyers can sign up on EOLDN’s website to provide pro bono legal assistance to state and local election officials who face possible prosecution, harassment or threatened violence for performing their statutory and civic duties. (Election officials can request help on the website as well.) At the City Bar’s urging, EOLDN is also seeking law firm commitments to connect with election officials prior to Election Day in order to establish working relationships and educate participating lawyers in likely issues facing their prospective clients. For New York lawyers working in national firms, note that EOLDN has identified the following states as priorities for recruitment: Arizona, Florida, Georgia, Michigan, Nevada, North Carolina, Ohio, Pennsylvania, Texas and Wisconsin.

I have no doubt that future historians will deem the present an inflection point in the American story, and a time when the choices we made, and the actions we took, determined the future we bequeathed to our descendants. Let it be said that we did all we could.

Find the latest election protection opportunities for lawyers on our website here.

Save the date for an Election Protection virtual program with Robert Bauer, Ben Ginsberg and others on October 17, to be posted soon on the City Bar’s calendar. 

Sign the pledge: Join the 1,000+ lawyers who have signed the City Bar’s pledge on voting and the rule of law here.

Read the City Bar’s report “The Consent of the Governed: Enforcing Citizens’ Right to Vote” here.