October 2004

Our Duty to Secure the Public's Right to Vote

by Ron Ward, WSBA President

No matter where we stand as lawyers and citizens on the political spectrum, all of us as members of the Bar have a vested interest and duty to do everything we can to secure the public's right to vote. This point was never made with greater clarity than by the razor-thin race in the 2000 presidential election and the abysmal performance of the election machinery in many states, which forever besmirched this campaign in the public consciousness. The 2004 election looms as perhaps the closest and (some believe) most important election in our nation's history.

With that in mind, I encourage all Washington lawyers to join me in playing an active role in ensuring that the 2004 election in our state is a model of participation and effective exercise of voting rights. There are many opportunities for volunteer service involvement, which will both do good and improve the image of the law profession. In my view, if it does not, this service should constitute "legal services . . . to individuals . . . seeking to secure or protect civil rights," RPC 6.1(b)(1), and ought to qualify for satisfaction of our pro bono obligations.

Washington is blessed with a sterling reputation for clean elections and for making it easy for citizens to register and vote. Notwithstanding this fact, there are still some systemic improvements to consider, which include restoring the franchise to ex-felons, facilitating registration and voting by those for whom English is not a first language, and increasing registration and suffrage across the board. Even if every systemic issue were addressed, there would still be a role for every Washington lawyer. There are excellent opportunities not just for lawyers in private practice, but for retired, corporate, and government lawyers and law students. Most such roles require only a day or two of time, and no ongoing commitment or office support.

Some examples of how we can get involved:

• Election Day lawyer. Lawyers with a partisan interest should volunteer to assist their favored party or candidate as a poll watcher or Election Day lawyer. Election Day volunteers explain ballots and voting procedures to loyal voters, watch for precinct-level problems (such as the infamous butterfly ballots and hanging chad), and challenge potentially ineligible voters and possible misconduct by polling-place officials. Because both major parties view Washington as a battleground state, they are particularly eager to find such volunteer lawyers.1

• Election Day inspectors. Lawyers with a greater interest in fair application of the election laws than in the success of one party or candidate should volunteer as election inspectors and judges (RCW 29A.44.410).

• Law firm voter registration. Every law office can identify a person to sign up to register prospective voters. Make that person available to your own staff, to your clients, and to your friends and neighbors.

Aside from actively participating, each of us should know some of the basics of Washington election law so that we can offer informed answers to questions that will undoubtedly be raised by friends, family, and acquaintances. For example:

• How does one register to vote? To register in Washington, you need only be a U.S. citizen who is at least 18 years old, who has not forfeited the right due to an undischarged felony, and who will have lived in Washington for 30 days prior to the next election (RCW 29A.08.230).2 Almost any form of identification, from a passport to a paycheck, is sufficient, and election officials will attempt to confirm identification from available databases if it is not included in mail-in registration. Ex-felons who have completed all conditions of their sentence are entitled to a certificate of discharge, restoring the right to vote (RCW 29A.08.520; see www.aclu-wa.org/ExFelonVoting). It is easy to register and easy to sign up to vote absentee, even by telephone (RCW 29A.40.010-.060). Changing residence addresses is also easy and should not deter voting since it can be done even on Election Day.

• How long are the polls open on Election Day? Polls must be kept open from 7 a.m. to 8 p.m., and everyone in line at 8 p.m. must be allowed to vote (RCW 29A.44.070). Voters may take instructions and translations into the voting booth (RCW 29A.44.030); polling places must be accessible to the elderly and disabled (RCW 29A.16.010-.020); and a voter who declares a sensory or physical disability may bring a person to assist the voter, but not electioneer others (RCW 29A.44.010, .240).

• Was there any federal legislation enacted after the disputed 2000 presidential election? Congress pushed the Help America Vote Act (HAVA) in the wake of investigations showing that 1.5 to 3 million voters did not cast an effective ballot in 2000, due to registration and other problems. HAVA seeks a level of national standardization in election equipment and procedures. Some commentators think Congress did not do all that it could to ensure national uniformity and to fund modern election equipment, satisfying strict standards of reliability and confidentiality. One of the main features of HAVA is the requirement of a provisional ballot for those whose vote is challenged on the basis of registration, residency, prior absentee voting, administrative errors, or other factors. Washington was one of the models for portions of the federal statute, since we have long had such a procedure, available on Election Day, even when the putative voter does not appear in the poll books or was purged from them for some reason.

No one wants Washington to be the Florida of 2004. Our officials are working hard to avoid that, but the legal profession can and should play a major role in ensuring that citizens register to vote and cast ballots that are counted. I hope you will join me in volunteering a day or two for this critical effort. The best thing that could happen would be for Election Day procedures in Washington to work so smoothly that our services that day will go largely unused, and our state will have a record number of votes cast and counted.

The question is not whether we can; it is whether we will. We can and we will, because, working together, there is nothing we cannot change for the better.

Ron Ward may be reached at rrw@admiralty.com or 206- 624-8844.

ENDNOTES

1 Please note that partisan vote promotion and protection efforts cannot be treated as compensable time by your firm without potentially being regarded as a reportable campaign contribution.

2 Registration by mail is relatively easy and must be postmarked by October 3, 2004 (the form can be found at www.secstate.wa.gov/elections/register.aspx). In-person registration is easier and more reassuring for some people, and can be done at county election offices (or other designated official locations), or with a person who has agreed to act as a "Voter Registration Assistant," as late as October 18.

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