June 19, 2009 6:03 PM

Arnold & Porter, Proskauer Negotiate Settlement Improving Ohio Electoral Process

Posted by Kristen Putch

Despite past issues, Ohio voters can now be confident in casting their ballots thanks to a settlement produced through the pro bono efforts of attorneys from Arnold & Porter, Proskauer Rose, and the Lawyers Committee for Civil Rights Under Law. The settlement, which was announced Tuesday, ends a four-year lawsuit brought against the state of Ohio by the League of Women Voters of Toledo-Lucas county and 12 individual voters who claimed a flawed elections system had left them and their fellow voters disenfranchised.

"[It was] essentially a complete breakdown of what you expect a well functioning election system to be," says John Freedman (pictured right), a partner at Arnold & Porter.

The plaintiffs filed suit in the summer of 2005, alleging that then-Ohio Secretary of State J. Kenneth Blackwell and Governor Robert Taft had violated the U.S. Constitution by not ensuring Ohio voters the right to cast a meaningful ballot as required by the Fourteenth Amendment's equal protection and due process provisions.

The case grew out of the 2004 Presidential election, and the Supreme Court's Bush v. Gore decision, which held that different geographical regions of a state could not adopt differing ways of administering elections says Jennifer Scullion, a partner at Proskauer Rose who worked on the case from its inception.

The firms worked to show evidence of flaws in the way Ohio administered voting going back almost 30 years, says Freedman. At the time the suit was filed there was no centralized election planning by the secretary of state, and election officials in individual counties ran voting using their own guidelines instead of according to a single standard.

Lawyers from the firms investigated and interviewed Ohio voters as well as conducted legal research heading into the initial hearings, says Scullion (pictured left). Freedman says some voters they spoke to had to wait in line eight to 12 hours just to cast their presidential ballots in 2004. Freedman says some people were turned away at the polls, due to state errors with identifying voters.

"The election administration is never going to be absolutely perfect. They are run by humans on a daily basis who make mistakes," says Scullion. "There is a level at which it no longer is just a mistake, it's a systemic problem. It's a failure to do basic planning."

The settlement requires the Ohio secretary of state to take much more affirmative steps in how it plans its elections, in order to avoid problems in the future, says A&P's Freedman. It also requires each county to put together a comprehensive Election Day plan so that voters don't face long lines and aren't erroneously turned away. The new standards are to take effect immediately, and will be in place for the next state election in 2010. Freedman says these standards will remain in place until 2015. "We got a very fair settlement."

"We are pleased to see this matter resolved for the people of the State of Ohio," Ohio Secretary of State Jennifer Brunner said in a statement released by Arnold & Porter. "We are confident that this settlement will be a springboard for Ohioans to see a new day in continued smooth elections."

The only aspect of the case that remains unresolved is the matter of how the state handles its voter registration database, specifically how voters are purged from the rolls, says Freedman. The plaintiffs have decided to give the secretary of state's office until next year to come up with a satisfactory solution.  If one isn't produced, they have reserved their right to revive the suit, he says.

Arnold & Porter reported a total of 7,175 hours and 20 lawyers worked on the case from their firm. According to Scullion, Proskauer had over a dozen lawyers working on the case over the four-year period--between the two law firms, the matter would have cost millions of dollars it not been done pro bono.

"It just builds a good level of camaraderie and morale," Scullion says about the pro bono service they offered. "You're all working together as a team towards something you all believe in."

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