Election Day Operations (“EDO”) and Post-Election Litigation
By: Jessica Furst Johnson, Phillip M. Gordon, Jason Torchinsky, and Merrill Weber
Holtzman Vogel partners Jessica Furst Johnson and Phil Gordon teamed up to host a webinar on what to expect – and how to prepare for the unexpected – for Election Day 2024, including the possibility of legal actions in the days and weeks beyond.
Discussion covered preparation for the canvass and potential post-election activity, including recounts, and the ways in which lawyers, consultants, volunteers, and other political actors can prepare to assist campaigns and candidates as the election nears closer.
With the caveat that every state and jurisdiction has differing laws, procedures, and guidance governing voting and election-day operations, the tips highlighted below provide a broad overview of the issues candidates and committees should be thinking about prior to Election Day.
Common Issues
Expect the unexpected! Know your jurisdiction’s rules applicable to casting and counting absentee, provisional, and mail-in ballots. Understand what should happen in the event of ballot shortages, machinery malfunctions, or weather. Have a plan to address ballot security issues, and be aware of who is responsible for the administration and enforcement of state laws at polling locations.
Narrow Down Polling Places of Interest
Know which precincts and polling places have historically had issues on Election Day. Whether it is long voting lines, prior complaints against election officials, or a particularly divisive political climate – or perhaps these polling places are simply critical to accomplishing a vote goal – use data and past incident reports to know which polling places your volunteers and watchers should keep an eye on.
Volunteers, Staffers, and Support
On Election Day, a campaign’s human capital is typically divided into three categories: the Leadership Room, the Legal Hotline team, and Field Volunteers. Traditionally, the Leadership Room includes campaign counsel and campaign leadership, responsible for making strategic decisions and taking in relevant information. The Legal Hotline team is responsible for vetting, handling, and documenting incident reports and complaints from the field, and filtering information up to the Leadership Room as necessary. Field Volunteers, as the name would suggest, are individuals deployed throughout the district or state who are ready to travel to polling places when issues arise. As the “first responders” of Election Day, their job to gather information as necessary to send up to the Legal Hotline team.
Poll Watchers are the other critical piece of the Election Day puzzle. Depending on state law, poll watchers may be referred to as strikers, challengers, or observers. These individuals observe and monitor polling place operations, and typically have certain access rights provided by law. It’s best to have a deep bench of poll watchers and focus on getting people to precincts where you anticipate needing the most support. Keep in mind that these individuals should be well-trained and knowledgeable on the ins-and-outs of the voting process for their jurisdiction. The state or locality might also require these people to be credentialed to have access to the polling place, so it may be important to designate poll watchers significantly ahead of Election Day.
Canvass
This is the process by which votes are counted after voting concludes, and in the event of a close election, it can look and feel a lot like a recount. Make sure you know your jurisdiction’s protocol for the order in which the ballots are counted, who is permitted to observe or participate, which officials oversee administering the canvass, and the requirements for ballot security during the canvass. It’s also important that canvass observers understand who may challenge a ballot, under what circumstances, and how challenged ballots are adjudicated.
Recounts
Recounts are handled differently in every state. Campaign teams should be aware of whether the state provides for an automatic recount with a certain vote differential, or if a recount may be requested under certain circumstances. If the recount is in a state that requires a request, know where such requests are filed and what the deadlines are. It is also critical to know who is responsible for the cost of the recount. Press strategy is critical during post-election activity, as is a robust list of available campaign volunteers.
Election Litigation
Election-related litigation can happen before, during, and after an election has occurred.
Pre-election litigation often involves voter access challenges to things like felony voter rules, registration issues, get-out-the-vote efforts, voter access to vote-by-mail or absentee ballots, and redistricting. Candidate qualification challenges are also common in the lead-up to elections.
Issues that may rise to the level of a litigation on Election Day include poll watcher access, extending voting precinct hours, and voter interference at the polls. Post-election, litigation is often founded in the extension of mail-in ballot deadlines, challenging signature verification/absentee ballot cure rules, election contests, and recounts.
Organized, EDO efforts and well-documented incident reports directly correlate with the success of all election-related litigation. It is important that EDO participants be aware of frequently litigated issues so they can identify and document serious issues that may arise using Incident Reports and communicating issues with the correct points of contact, including legal counsel.
While Holtzman Vogel’s EDO and Post-Election Webinar provided lawyers, consultants, volunteers, and other political actors a sense of how to prepare for Election Day, this webinar was not a substitute for legal guidance. Moreover, elections in every state are governed by distinct statutes and regulations.
Should you or your organization need assistance with any EDO or election litigation efforts, please don’t hesitate to contact the Holtzman Vogel team for further guidance on the issues addressed above.
