For most of America’s democratic (small “d”) history, election law was an iffy proposition for career-oriented attorneys. It tended to rise and fall in terms of job opportunities and practitioner population with the four-year election cycle, peaking during and immediately after presidential campaigns, then going into hibernation until the next round, except for a modest blip during mid-terms.
That has all changed now, beginning with the stürm und drang that followed the 2000 presidential election, culminating in the Supreme Court’s 5-4 decision in Bush v. Gore that finally resolved the dispute over the Florida vote and made George W. Bush president. That unprecedented election was followed by years of state legislative measures designed to suppress voting, based on the unsupported assumption that voter fraud was rampant. Suddenly, election law disputes began to flood the courts, an ongoing phenomenon that shows no signs of letting up.
The new presidential Advisory Commission on Election Integrity, https://whitehouse.gov/blog/2017/07/13/presidential-advisory-commission-election-integrity the controversial body with a mandate to investigate President Trump’s thus-far unsubstantiated claim that 3-5 million voters voted illegally in the 2016 presidential election, is certain to stimulate even more lawsuits alleging voter suppression while also generating new job opportunities for lawyers interested in this esoteric practice area.
Overlay this initiative with the heightened concerns of state and local election administrators regarding Russian hacking and data and voting machine security and integrity, and you have a mix of good reasons why there is a growing need for legal advice and counsel on election matters.
Several attorney job developments have resulted from this new and robust focus on our election systems and processes:
- Law firms with election practices that go beyond campaign finance matters. Twenty years ago, Diogenes would have run out of lamp oil had he turned his attention from finding an honest man to finding a firm that practiced election law. Today such firms and practice groups are everywhere.
- A trend among state and local election officials to hire in-house counsel to deal with the heightened and seemingly constant tension and disputation surrounding registration and voting. There are more than 3,000 state and local election administrative bodies in the U.S. Increasingly, they understand the need for permanent in-house attorneys to whom they can turn for advice at any time.
- An escalating regulatory environment for election equipment manufacturers. The U.S. Election Assistance Commission http://eac.gov (see below) must certify voting equipment, which raises a host of legal questions and can easily lead to disputes. The principal election equipment companies are listed below:
- Advanced Voting Solutions, Inc., McKinney, TX
- Avante International Technology, Inc., Princeton Junction, NJ
- Clear Ballot Group, Inc., Boston, MA
- Dominion Voting Systems Corp., Toronto, Canada & Denver, CO
- Election Systems & Software, Inc., Omaha, NE
- Everyone Counts, Inc., La Jolla, CA
- Hart InterCivic, Inc., Austin, TX
- MicroVote General Corp., Indianapolis, IN
- Precise Voting, LLC, Mineola, NY
- Premier Election Solutions, Inc., Allen, TX
- Rifkin Election Supplies, Wilkes-Barre, PA
- Smartmatic USA Corportation, Boca Raton, FL
- SOE Software, a Scytl Company, Tampa, FL
- TruVote International, Salt Lake City, UT
- Unisyn Voting Solutions (a division of International Lottery and Totalizator, Inc.), Vista, CA
- Intensified U.S. government activity in the election space. There are six federal agencies that focus all or some of their attention on elections. They are listed below:
- Federal Election Commission. http://fec.gov The FEC’s primary focus is on enforcement of the campaign finance laws. Attorneys work in the Office of General Counsel, and the Office of the Chief Compliance Officer.
- U.S. Election Assistance Commission. http://eac.gov The EAC develops guidance for state and local election administrators to meet Help America Vote Act (HAVA) requirements, serves as a national clearinghouse of information on election administration, accredits testing laboratories, certifies voting systems, and audits the use of HAVA funds. Attorneys can be found in the Office of the General Counsel. Caveat. At this writing, Republicans in Congress are in the process of trying to close down the Commission.
- U.S. Department of Defense Federal Voting Assistance Program. https://fvap.gov The FVAP works to ensure Service members, their eligible family members and overseas citizens are aware of their right to vote and have the tools and resources to successfully do so via its administration of the Uniformed and Overseas Citizens Absentee Voting Act, as amended by the Military and Overseas Voter Empowerment Act, which require states to transmit requested absentee ballots to eligible voters no later than 45 days before a federal election. The agency used to have a general counsel’s office, but it is no longer listed on the agency’s website.
- U.S. Department of Justice, Civil Rights Division, Voting Section. https://justice.gov/crt/voting-section The Voting Section enforces the civil provisions of the federal laws that protect the right to vote, including the Voting Rights Act, the Uniformed and Overseas Citizens Absentee Voting Act, the National Voter Registration Act, the Help America Vote Act and the Civil Rights Acts. The Section employs more attorneys working on voting issues than all of the other listed agencies combined.
- S. Department of Homeland Security Cyber Security Division. https://dhs.gov/science-and-technology/cyber-security-division The Division has primary responsibility for advising and assisting state and local election administrators with respect to defending their registration and voting systems against hacking. Several Division attorneys work as Program Managers.
- National Institute of Standards and Technology. https://nist.gov NIST is involved in the election process in a variety of ways, from the technology of voting machines to enabling disabled veterans to register and vote more easily. A few attorneys work in the Office of Congressional & Legislative Affairs and the Technology Partnerships Office.
Further Information: Campaigns & Elections magazine https://campaignsandelections.com/