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November 4, 2008 4:18 PM

ELECTION PROTECTION 2008: Proskauer Partner Says Provisional Ballots a Concern

Posted by Brian Baxter

Jennifer_scullion_2

UPDATE: This post contains corrected information. Proskauer and its cocounsel were in negotiations for a consent decree, but nothing came of them.

Proskauer Rose's office in the Morgan Stanley Building in New York City is usually a busy place. But litigation partner Jennifer Scullion, right, says the volume of activity on Election Day is a bit more than normal.

Scullion is heading up the firm's New York call center for Election Protection, the largest nonpartisan network in the U.S. dedicated to monitoring the election process. The initiative is led by the Lawyers' Committee for Civil Rights Under Law, of which Scullion serves on the nonprofit's board of trustees. (The Am Law Daily's David Bario is live blogging today from Election Protection headquarters at DLA Piper's Washington, D.C., office. Read his posts so far here, here, here, and here.)

Scullion says the firm has set up 48 hotlines in a conference room in its Times Square office, staffed by both legal and non-legal volunteers that have been answering calls since 5:30 a.m. EST. The volunteers will continue doing so into the wee hours of the night, answering calls about everything from 'Where do I vote?' to 'I went to a polling place and they said I had insufficient ID, so I went home.'

Armed with laptops, Scullion says Proskauer volunteers are fielding reports of voting issues in Ohio and Arkansas.

What is her team seeing so far?

"We're seeing an increased use of provisional ballots, which is something we're really trying to keep an eye on in Ohio," says Scullion about the paper ballots used when there is a question about a prospective voter's eligibility. "We're trying to make sure these ballots are used as a last resort and that if someone's eligible to cast a regular ballot, they really should be doing so."

Scullion says that in addition to manning the phones, Proskauer has 10 attorneys on the ground in Ohio spread out in five cities: Cincinnati, Cleveland, Columbus, Dayton, and Toledo. The state is an important battleground for both Democrats and Republicans and Scullion says that Proskauer volunteers are teaming up with non-lawyers and local organizations to make sure prospective voters have appropriate polling information.

"If machines are down, we call the board of elections and get them to follow up," Scullion says. "If we hear that a poll worker is demanding improper amounts of ID, we try and get someone on the ground to find out what's going on or to at least contact the board of elections so they do so."

But why Ohio for Proskauer?

Scullion says Proskauer's involvement in the swing state began when it served as cocounsel with Arnold & Porter in a pro bono case filed by the League of Women Voters and several other plaintiffs against Ohio's secretary of state in 2005. Scullion says the basic claim in the case, which is still active, is that state officials failed to exercise their authority to make sure that election rules were fairly implemented during the 2004 election.

"You had lines that were five to six hours long and you had a mishmash of rules that were being applied in different counties," Scullion says. "So it really came down to that your right to vote in Ohio depended on where you lived, which is flatly unconstitutional."

Proskauer gained a fair amount of knowledge about elections in Ohio as a result of the case, so it volunteered in 2006 to run an Election Protection call center dedicated to the state. The initiative was so popular with both Proskauer and non-Proskauer volunteers that the firm decided to reprise its role this election cycle.

In the advent of future litigation, Scullion says the firm's volunteers are preparing databases where they log all problems or concerns that emerge on their calls or interactions with voters on the ground.

"You might have lots of people who registered in time and their names aren't showing up or are being purged," says Scullion, noting that detailed records can help Proskauer discern certain patterns if it becomes involved in election-related litigation. "Absentee ballots might not be showing up on time or you could still have poll workers that don't fully understand the voter ID rules."

As for its still unresolved case against Ohio in 2005, Scullion says that a U.S. district court in Toledo has upheld the plaintiffs claims and that arguments have been heard on appeal. In the interim, Proskauer and its cocounsel were in negotiations for a consent decree with Ohio's new secretary of state, who Scullion says has professed to be much more election reform-minded, but nothing has come of that effort so far.

Now everyone will just have to sit and wait.

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Thanks for post. Nice to see such good ideas.

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