In Defense of the Foundation Stone: Deterring Post-election Abuse of the Legal Process

• Jurisdiction: United States,Federal
• Citation: Vol. 55 No. 4
• Publication year: 2021

In Defense of the Foundation Stone: Deterring Post-Election Abuse of the Legal Process

Joyce G. Lewis
Krevolin & Horst, LLC

Adam M. Sparks
Krevolin & Horst, LLC

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IN DEFENSE OF THE FOUNDATION STONE: DETERRING POST-ELECTION ABUSE OF THE LEGAL PROCESS

Joyce Gist Lewis & Adam M. Sparks^*

The COVID-19 pandemic has upended the American way of life and revolutionized the way we vote. Record voter turnout in 2020, including among first-time voters and voters of color, was met with unprecedented legal challenges seeking to nullify millions of votes. A coordinated effort to amplify groundless accusations of voting fraud, shorthanded as "the Big Lie," was advanced in multiple states through scores of lawsuits. Although the cases themselves were dismissed as lacking merit and as failing to state actionable claims, their impact upon public confidence in free and fair elections was palpable and the resources of the courts and defending parties were severely taxed. As a self-regulating profession, lawyers and courts have both the tools and the duty to hold litigants and their counsel accountable for unethical and unfounded attacks on votes after they have been cast. Rule 11 sanctions, statutory remedies, and other consequences must be employed when litigants baselessly challenge election results, or the courts will find themselves regularly enlisted in efforts to confer false legitimacy on misinformation campaigns. Firm, fair accountability in the present is crucial to deter those who would use litigation to poison the democratic well in the future.

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Table of Contents

I. Introduction..................................................................1651

II. "Your vote is precious, almost sacred. It is the most powerful nonviolent tool we have to create a more perfect union."............................................................ 1654

III. "When you know better, you do better."................1660

IV. Conclusion..................................................................1674

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I. Introduction

The COVID-19 pandemic has been a tragedy for millions and has upended the American way of life in multiple respects, including forcing voting rights advocates, attorneys, and experts to get creative about how votes can be cast safely and to rethink assumptions about who votes and when. The overwhelming success of absentee-by-mail and early, in-person voting in the November 2020 elections gave America a preview of what is possible for the future of voting. Historic levels of engagement and turnout, during a once-in-a-century pandemic,¹ showed that voters were eager to make their voices heard. In the November 2020 election, nearly 2.7 million Georgians, including a high percentage of first-time voters and voters of color, voted early in person, and more than 1.3 million cast accepted absentee ballots by mail or by using secure absentee ballot drop boxes.²

The success of absentee voting, despite the pandemic and a collapse in the reliability of the U.S. Postal Service,³ is a testament to the understanding of visionaries—like former Georgia gubernatorial candidate Stacey Abrams—that people will vote if they are not prevented from casting a ballot that they believe will matter because "[p]eople don't necessarily care about politicians,

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but they do care about their own lives."⁴ It is also owed to the work election lawyers and voting rights organizations put in during the months and years leading up to the 2020 election to ensure that voting would not be burdensome.⁵ Unfortunately, these same lawyers will now face months, and possibly years, of litigation to deal with the backlash against their success: a concerted effort has reemerged to reduce access to absentee balloting, restrict and reduce voter registration, and remove opportunities for the poor and working class to vote, other than on election day.⁶

Worse, 2020 gave rise to a new front in this effort: a multitude of lawsuits demanding that courts overturn election results and reject

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millions of votes after they were cast.⁷ This rash of litigation has sought unprecedented relief—to discard legally cast votes⁸ —based on the thinnest of rationales and has continued even as court after court summarily dismissed these suits as meritless.⁹ These suits have illuminated the unique role that lawyers and judges have in safeguarding the future of voting: the responsibility to ensure that the resources of the justice system are not used to subvert the foundation stone of American democracy, the vote.¹⁰ To protect the courts from being conscripted into the service of a propaganda machine that seeks to undermine confidence in our elections, litigants and counsel must be held accountable for filing meritless claims to toss out millions (or even hundreds) of presumptively legal votes. Lawyers and judges should examine whether Rule 11 and other statutory sanctions are warranted for those who would abuse the courts' resources to advance an explicitly anti-voting and antidemocratic agenda.

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II. "Your vote is precious, almost sacred. It is the most powerful nonviolent tool we have to create a more perfect union." - John Lewis¹¹

Fear of the power of meaningful, accessible, popular voting was laid bare in efforts to limit voting following Shelby County v. Holder.¹² This has proven true in states like Georgia and others that were previously subject to the preclearance requirements set forth in Section 5 of the Voting Rights Act of 1965,¹³ which Shelby County paralyzed.¹⁴ States throughout the Deep South announced that they would seek to implement, or would begin enforcing, strict voter identification laws—including some previously rejected under Section 5 requirements—within a day of Shelby County's issuance.¹⁵ In the absence of the VRA's Section 5 preclearance requirements,¹⁶ voting rights advocates have had the burden of persuading state and federal courts to enjoin laws limiting the ability to register, vote, and have one's vote counted.¹⁷

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Having learned their lessons from the litigation they were required to file after Shelby County, a nationwide corps of election law attorneys leapt into action before the 2020 presidential election cycle to lay the groundwork for as free and fair an election as could be obtained.¹⁸ In Georgia, subjects of pre-election litigation ranged from long wait times at polling places¹⁹ to notification of absentee ballot rejection,²⁰ which were both related to the ability of voters to cast their ballots without the burden of waiting for hours and with the assurance that their vote would indeed be counted.²¹

In Anderson v. Raffensperger, political committees and Georgia voters, who were forced to wait up to eight hours in the hot sun and late into the night during the June 9 primary, filed suit against state and county election officials.²² Expert analyses filed in connection with a motion for preliminary injunction demonstrated that Georgia voters had faced some of the longest average wait times to vote in the country since at least 2008, growing to the very longest wait time in 2018 (and the largest increase in wait time from 2014, just after Shelby County, to 2018).²³ What is more, these burdens varied widely with the share of racial and ethnic minorities on the voter rolls:

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Among polling places where minorities made up over 90 percent of registered voters, 36 percent were forced to stay open over one hour past the specified closing time in order to accommodate long lines. In the Atlanta metro area, 45 percent of such polling places were forced to do so. Among polling places where whites made up over 90 percent of registered voters, less than 3 percent of polling places were required to stay open late in order to accommodate long lines.

In polling places where minorities constituted more than 90 percent of active registered voters, the average minimum wait time in the evening was 51 minutes. When whites constituted more than 90 percent of registered voters, the average was around six minutes.²⁴

The complaint attributed these burdens to election officials' closure and consolidation of polling locations and failure to provide sufficient training and equipment,²⁵ such that these failures violated the First and Fourteenth Amendments to the U.S. Constitution.²⁶ Plaintiffs offered additional expert testimony to provide county election officials with concrete strategies for improving the efficiency of equipment allocation to reduce voter wait times.²⁷ Ultimately, the court dismissed this complaint for lack of standing in light of recent federal appellate case law.²⁸

Other litigation resulted in tangible election administration improvements for voters, which came to fruition with the record turnout in November 2020.²⁹ In Democratic Party of Georgia v.

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Raffensperger, the parties negotiated a settlement agreement and release of claims, filed with the court, clarifying the amount of time under O.C.G.A. § 21-2-386(a)(1)(C) county election officials were permitted to take to promptly notify a voter applying for or casting an absentee ballot that officials perceived a defect on the application or ballot envelope.³⁰ State election officials considered the plaintiffs' claims, along with the fact that the state legislature had amended this provision of the law the previous spring,³¹ and so issued both a more detailed rule and nonbinding guidance to county election officials in advance of "all statewide elections in 2020."³² The state election officials "agree[d] to promulgate and enforce" a rule that interpreted "prompt" notification to mean notifying the voter by letter, telephone, and email within three business days of receipt of the rejected application or ballot.³³ Election officials later took additional emergency measures previously used in other states—such as permitting counties to erect secure, public drop boxes for voters to return paper ballots—to increase the safety...