Polling Election Lawyers

From The Practice January/February 2022
Who are election lawyers and why do they do what they do

Lawyers who specialize in election law invest their time and energy in a variety of career paths. As Ruth Greenwood explores in “Election Law as a Clinical Endeavor,” the Election Law Clinic at Harvard Law School aims to prepare students with experiences and toolkits that will make them ready to tackle a range of jobs after graduation. They leave law school having engaged in litigation, worked with organizers, and having been trained in media awareness. They have options both within the law and outside of it. They learn the substance of election law—even as court opinions change it—but perhaps more importantly, they learn how and why election lawyers do what they do. In this story, we highlight four lawyers who have devoted their professional lives to election law. Many of these individuals have been working in election law for years and decades; they may have gleaned glimmers of an interest in election law during law school, but gained the experiences necessary to accomplish their work outside of an explicit clinical program. These individuals work in nonprofits, regulation, and academia, and their diversity of backgrounds contributes to their motivation for and dedication to the work. (For another view of an election lawyer, see “Firm Believers” for election lawyers who work in law firm practice groups.) Below, The Practice highlights these lawyers and the work they do through short Q&As, surveying the array of influences and interests each brings to their role.

Leah C. Aden, NAACP Legal Defense and Educational Fund

Leah C. Aden is the deputy director of litigation at the NAACP Legal Defense and Educational Fund (LDF). In this role, she is charged with the planning, strategizing, and supervision of LDF’s voting rights work. Leah was a member of LDF’s litigation team in Shelby County, Alabama v. Holder, a high-profile case in which the Supreme Court of the United States immobilized Section 5, the heart of the Voting Rights Act. Read more about Leah on the NAACP LDF website.

Why did you choose your particular path into election law?

I have to admit, I stumbled upon this path. I wanted to do civil rights work—that was my reason for going to law school. I wanted to work at an organization that put racial justice at the forefront, so I knew that the Legal Defense Fund was an amazing place to go. I thought I was going to be an education attorney—someone who would help realize the promises of Brown v. Board. I thought if everyone had access to a world-class education, then we’re at least operating on the same level playing field. But I got a fellowship that allowed me to work at a law firm—Fried Frank—for two years and then come to LDF doing whatever they needed me to do. And once you get to LDF, you tend to stay. They needed help in what was then the political participation group, and I would’ve done anything that they asked me to do! So, I joined LDF with a focus on voting rights work—and have loved it.

Our work was the culmination of people doing everything that was in their arsenal, pounding the pavement, going to their representatives, going to the courts in past years and decades.

Leah Aden

It is and has been very intellectually challenging—especially in the face of a lot of retrenchment because of the Shelby County decision. The courts have changed, particularly because of all the appointments with the last administration, and state courts, in the places where so many Black people live like Alabama and Louisiana and South Carolina, are not beacons of opinions that recognize civil rights claims. Still, there are tools left: there are still avenues through our judicial process to get relief, and figuring out what those avenues are, figuring out how to address the challenges, is still, I mean, it’s very challenging, but it’s also very rewarding.

What motivates you as an election lawyer?

This work is very intellectually rewarding because it’s concrete. You get to gather the facts and research the law and merge them and put a product out in the universe and get a result. At LDF, we all are curious, we want to know answers to problems, we want to fix problems, we want to offer solutions, so I think it sort of taps into that.

Personally, one of the most rewarding things is to be able to use my skill set in service of my clients and communities. In the voting space, I have the good fortune of working with so many clients where they’ve come to me and our organization as the last resort, meaning they’ve already done so much work to get to where they are. My clients and partners in Terrebonne, Louisiana, came to us for help after they had appealed to Louisiana officials to support at least six bills over about a decade; those bills would have provided a fix to a flawed method of electing judges to their parish’s state court. In the context of the restoration of the right to vote for people with felony convictions in Florida, for instance, the litigation we had in 2020 was a by-product of years of work: going to the legislature, past efforts at litigation, two attempts to put it on the ballot, hundreds of thousands of signatures. So, our work was the culmination of people doing everything that was in their arsenal, pounding the pavement, going to their representatives, going to the courts in past years and decades. I am really heartened when our clients come to us and say, “We’ve done our part in this country. We’ve used the tools and the processes that are part of our democracy, and now it’s up to you, once those options have been foreclosed, to then bring it to the courts.”

You have deep experience as a litigator. What do you see as the most critical skill sets to be an effective election lawyer? What specific tools are in your toolbox?

For folks who want to do election law, or any type of public-interest civil rights work, you have to recognize that the court system is one piece of a larger puzzle. Any systemic change also has to be about public education. It has to be about policy work. It has to be about organizing. And, of course, it has to be about enforcing the law. All of those are part of the work, and I work at an organization called the Legal Defense and Educational Fund, so we are in the courts, but we’re in communities, we speak publicly about racial justice issues, we write about racial justice issues. While we’re litigating all these cases, we’re also desperately in the halls of Congress and state legislatures asking them to adopt or reject laws that are not consistent with the Constitution. It’s also a tool to be able to be attuned to what your clients want and understand and communicate your role in service of that. And I also value being kind, respectful, and professional in the face of litigation, which can be dogged and messy. There’s never a dull day.

How has mentorship played a role in your career as an election lawyer?

I love working at LDF because it attracts people who are equally committed to the dignity of Black people. I’m constantly supported by not only just the litigators in the building but by the people who do the work to make sure that we have the funding to hire experts and the folks in the building who help us in the communications space. I have been aided in a large part also by co-counsel and other civil rights attorneys whom we have long-standing relationships with or who have deep roots in the communities where we work. There are just so many different people in the field who act as mentors and support systems.

LDF is an 80-year-old organization—it will exist beyond us. We need to be preparing people to do the work beyond us and for decades to come.

Leah Aden

Whenever we need help, people are always willing to help such that we view mentorship as providing opportunities for the next generation. This is an 80-year-old organization—it will exist beyond us. We need to be preparing people to do the work beyond us and for decades to come, because these issues, frankly, have been exposed to be so deep-seated that they’re not going anywhere anytime soon. So, the organization has started a scholarship fund to get more people into law. And we think purposely about mentorship when we have our summer program, when we have externs, and when we do clinics. We need an arsenal of lawyers. We need an arsenal of cooperating attorneys. We need an arsenal of cooperating law firms. We need an arsenal of folks in the media who are writing about this. We need an arsenal of legislators who are thinking about the issues that we’re working on and trying to draft policies that work with us. We need all the help we can get in all the different spheres, because again, these issues aren’t going anywhere, and we need to be able to make sure we have an organization and people in place to continue to move things forward.

Guy-Uriel E. Charles, Harvard Law School

Guy-Uriel Charles is the Charles Ogletree, Jr. Professor of Law at Harvard Law School and director of the Charles Hamilton Houston Institute for Race and Justice. He previously taught at Duke Law School, where he held the Edward and Ellen Schwarzman Professorship of Law and founded the Duke Law Center on Law, Race and Politics. He teaches and writes about election law, race and law, constitutional law, and civil procedure. Learn more about Professor Charles here.

Why drew you to your particular path in election law? As part of this, how has being an election law professor changed since you began your career?

I took an election law class in law school, and I was also pursuing a Ph.D. in political science. Election law combined all of the issues that interested me: race, equality, political theory, constitutional law, and civil rights. In many ways, law structured how we conduct our politics; our politics is defined as the ways in which individuals try to get what they need. I started teaching in the fall of 2000 during what turned out to be the most contested presidential election in the modern history of the United States. I was also teaching prior to 2000 at a time when few law schools cared about election law. But all of a sudden, election law became important, and really the field came of age after the fall of 2000.

You’re currently working on a book on voting rights and the Voting Rights Act with Luis Fuentes-Rohwer titled The American Promise: Rethinking Voting Rights Law and Policy for a Divided America. What major questions and ideas are you exploring?

The book has three aims. First, to help us understand why the Voting Rights Act of 1965 has been so successful. Why did this statute in many ways do what a constitutional amendment, the 15th Amendment, did not do? Second, why has the VRA declined? Or more precisely, how much of the VRA’s decline is a function of curtailment by the Supreme Court? Third, where should we go from here? The book argues that the VRA was successful primarily because the country came to believe that racism in voting was a significant problem. The violent events on the Edmund Pettus Bridge is symbolic of how the country understood racism and also how that type of violent racism served as an impetus for the VRA. The court, Congress, and the executive branch were united in shifting political power from the states to the federal government and allowing the federal government to provide oversight of the states’ electoral process, specifically the states of the south. The VRA has declined because the consensus around racism has dissolved. The country as a whole no longer believes that the big problem in voting is racism. The book argues that we need to build a new consensus around voting. The new direction should make the case for universal political participation and universal norms, particularly around federal elections.

Election law is what makes it possible for us to be a self-governing people.

Guy-Uriel Charles

As an election law academic, what do you see as the biggest challenges and opportunities for the field—in practice, in policy, or in legal research and beyond—in the next year, the next two years, and the decade ahead?

We’re in a unique moment in American democracy. We’re at a time in which some leading politicians, particularly a former president, would have ignored the results of a presidential election because he lost, and perhaps he thought he lost unfairly. Just a year ago, we witnessed a mob storm the Capitol because they thought their candidate was unfairly denied the election. We are also worried that some election administration officials may be willing to ignore election results if their preferred candidate does not win. These are all reasons to worry. At the same time, we have made tremendous progress in making voting more accessible and easier for millions of Americans. There are currently ideas on the table to make voting universal that would never be considered seriously 10 years ago. There is an energy around voting rights that we have not seen in 50 years, and this energy is multiracial, multigenerational, and multiregional. Thus, while there are a lot of reasons to worry, there are also a lot of reasons to be optimistic.

What drives you, personally, to pursue election law scholarship? What impact do you hope your research has?

Election law is what makes it possible for us to be a self-governing people. It is what makes it easier for us to address inequality of various sorts. I have seen my ideas go from academia to the political process. Making a difference in our society is what drives me.

James Tucker, Lawyer’s Committee for Civil Rights Under the Law

Dr. James (Jim) Tucker is a senior special counsel in the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under the Law and a founding member of the Native American Voting Rights Coalition (NAVRC). From 2007 until 2021, Jim served as the pro bono voting rights counsel to the Native American Rights Fund (NARF), where he provided support on litigation, legislative, and policy matters and codirected NARF’s redistricting training program. For more on Tucker, visit his bio on the Lawyers’ Committee webpage.

Why did you choose your particular path into election law? How has being an election lawyer changed since you began your career?

I first became interested in election law while clerking for the chief judge of the Northern District of Florida in the mid-90s. During that time, one of the cases that really changed my career path was a racial gerrymandering case: Johnson v. Mortham. It was a constitutional challenge brought by white plaintiffs to a majority Black district (Florida’s third district). I remember being in the courtroom and hearing—during an examination—protesters singing “We Shall Overcome” outside the courthouse. I remember thinking: Why is it that, in 1996, voting rights are still an issue for minority voters? Why is it that minority voters don’t have equal access to the political process? These questions ultimately led to the career I’ve focused on since.

Voting rights cases can be incredibly heartbreaking. But what really brings it home to me is when you see litigation making a difference.

James Tucker

Since I started my career in election law 20 years ago, I’ve noticed that it has become a much bigger area of the law. It has also become weaponized. You oftentimes see one—or even both—political parties trying to use election law to manipulate the outcomes of elections before voters actually decide. One of the things that struck me is that many of the Supreme Court decisions that have come out over the last 15 or 20 years have talked about how many of the so-called first-generation voting barriers no longer exist, even though most of the voting litigation I’ve been involved in has been these first-generation voting barriers—things like voter ID laws, language access, etc. And I think what’s really become highlighted, especially over the last couple of years, is just how important the basic access cases and the vote denial cases are as well.

What motivates you as an election lawyer? What are the opportunities and the challenges of the field?

I’m really driven when I think about how, historically, there’s been a cycle of expansion and restriction of voting rights and that we are currently experiencing severe restrictions and an almost outright denial of entire classes of people to vote. Voting rights cases can be incredibly heartbreaking. But what really brings it home to me is when you actually see litigation making a difference. I remember one of the first cases I brought at the Justice Department was a language-access case on behalf of Spanish-speaking, limited-English voters in Passaic County, New Jersey. In one instance, we had a 91-year-old woman who went into the voting booth and came out and was crying. She said, “I’m just so happy. I’ve never had the ballot written in my language before.” I see this in a lot in cases I’ve brought in Native American communities where first-time voters have just never had a polling place close to them or never had anyone reach out to them and try to register them to vote.

And, just last year, there was a dramatic expansion of voting opportunities because of the pandemic. There were record levels of participation across racial and ethnic lines. And yet, right after, we see a number of governments rolling back these rules that opened access for so many and provided mail-in ballots and opened up absentee voting. These are the challenges we’re facing, as well as the opportunities.

As an election lawyer, you’ve worked in litigation but also used other tools: policy and legislation, advocacy, writing, legislation, etc. Could you talk about the toolbox of the election lawyer?

Like a lot of voting rights lawyers, we have had to become policy experts and legislative experts by necessity. And it’s just because of the direction that the courts have taken us. The methods jurisdictions have come up with to try to limit the ability of voters of color to cast ballots that are counted have necessitated legislative action at both the federal and state level. It’s not something I expected to be involved in, but much of the work I’ve done has been within the legislative realm, including in terms of supporting the reauthorization of the Voting Rights Act in 2006. What’s fascinating is that when you do legislative work, you get to build a record. You get to actually tell stories and bring in witnesses who talk about living without a birth certificate in remote northeastern portions of Arizona in the Navajo Nation; they talk about how that acts as a barrier to voting. This is also why so many of us in this community devote so much time to writing public articles, law review articles, and books—building a record. That’s much of what we’ve been doing the last couple years on the John Lewis Bill and on the Freedom of the Vote Act and similar measures. It’s very time-consuming, but it’s very important. There, I worked with civil rights groups for about four years before 2006 to actually start developing and building the record necessary, we thought, to sustain the constitutionality of it.

Working on the census has made me a more effective litigator because I’m able to work more effectively with expert witnesses and identity specific data sets that allow us to bring much more effective claims.

James Tucker

In addition to your work at the Lawyers’ Committee, you serve as chair of the Census Bureau’s National Advisory Committee. What does that work entail, and why should election lawyers and law students know more about it?

Census is kind of the great unknown civil rights issue of our time. More than any other government function, the Census controls federal appropriations that amount to trillions of dollars over the course of 10 years. And it’s really important for voting rights work when we bring litigation, because it matters in terms of the basic data we need for redistricting cases.

I first became involved in the census even before I was pro bono council with NARF. When I was at the Department of Justice, I was working with a mentor of mine, Bob Kendall, who was a deputy chief in the voting section. He was a census geek, so I became a census geek! I began to understand the importance of census data—and data more generally—on the ability to bring successful civil rights enforcement actions. When the Voting Rights Act was reauthorized in 2006, there was a switch from using data from the census to something called the American Community Survey (ACS). When I was working for NARF, one of the things that we discovered was that the ACS does worse at gathering data in rural areas, meaning that many Indigenous peoples are severely undercounted. For the 2010 census, the undercount for people living on reservation lands was estimated to be 4.9%. Our colleagues at the Alaska Federation of Natives estimate that the undercount in Alaskan native villages was over 7%. We asked, what good does it do if we’re going to bring enforcement actions for voting rights cases, but we don’t have quality census data to bring to those cases? For that reason, NARF nominated me to be on the National Advisory Committee at the Census Bureau focusing on census, operation, and data issues impacting American Indians and Alaskan natives. It’s very important work because it’s giving us an opportunity to try to work with the Census Bureau to improve their operations and their sampling techniques, to ensure that we get a more accurate count of Indian country.

I will tell you that it’s been some of the most rewarding work I’ve done. It’s a little off the beaten path in terms of not being straight-up litigation, but I will tell you that it’s actually made me a more effective litigator because I’m able to communicate and work more effectively with our expert witnesses and identity specific data sets from the census releases that can allow us to bring much more effective claims.

Ellen Weintraub, Federal Election Commission

Ellen L. Weintraub has served as a commissioner on the U.S. Federal Election Commission since 2002 and chaired it for the third time in 2019. During her tenure, Weintraub has served as a consistent voice for meaningful campaign-finance law enforcement and robust disclosure. She believes that strong and fair regulation of money in politics is important to prevent corruption and maintain the faith of the American people in their democracy. Learn more about Weintraub on the FEC website.

What was your path to election law and to becoming an FEC commissioner?

When I went to law school, there wasn’t even a class in election law. I started out in Big Law but was always drawn to public service. I got my first break when I landed a job as counsel to the Ethics Committee for the House of Representatives. The committee’s offices were then in the center of the Capitol, with a view down the Mall, and the thrill of working in that iconic building, literally in the heart of the nation’s government, never got old.

I advised members of Congress, their staffs, their spouses, and the lobbyists and advocates who sought to influence them. It was a bipartisan committee, and I advised people on both sides of the aisle. The only goal was good government, helping to craft rules that would advance it, helping to counsel people on how to make sound choices. And there were no billable hours to track. I was hooked.

Election lawyers protect that process and ensure its fairness. I get to grapple with constitutional issues on a daily basis.

Ellen Weintraub

After a few years, I was ready for a change and moved back to the private sector, now specializing in political law: government ethics, campaign finance and election law, lobbying regulation, nonprofit law. But a lot of my clients were still members of Congress. I had a relationship of trust with them and a history of working in a bipartisan setting. When it comes to political appointments, it helps to know the people in a position to make them happen. When an opening arose for a Democratic seat on the Federal Election Commission, I was asked if I would be interested. I feel very fortunate to have been presented with this opportunity and have been honored to serve the American people in this role.

What excites or motivates you as an election lawyer? What are the opportunities and the challenges of the field?

In the Declaration of Independence, our founders explained that to secure our fundamental rights, “governments are instituted . . . , deriving their just powers from the consent of the governed.” It is through elections that we, as equal citizens, provide that consent. Election lawyers protect that process and ensure its fairness. I get to grapple with constitutional issues on a daily basis. Campaign finance affects who gets elected and what gets enacted. If we get the rules right, we can provide transparency, build good government, fight corruption, and promote confidence. It isn’t easy, but once in a while, we do get it right.

Several years ago, I was involved in a rulemaking that was highly controversial. The agency was deluged with public comments, and feelings ran high. A colleague from the other party and I had lead responsibility. We poured through the comments, held hearings. We listened. And then we rolled up our sleeves and wrote the rule together. While we couldn’t address every concern, we tried to address the most important concern on each side of the issue. And at the end of the public meeting when we adopted the new rule, advocates on both sides of the issue separately came up to me to say that they thought we had done well, that they had felt heard. That was a very good day.

What do you see as your main responsibilities as an FEC commissioner? What parts of the role do you love? What are the pain points?

It’s an honor to participate in the debate about the most fundamental aspects of our democracy.

Ellen Weintraub

The day-to-day bread and butter of the job is making decisions on enforcement matters, rulemakings, and advisory opinions. This requires trying to find common ground with other commissioners who often have very different perspectives on the law. Finding the deal used to be my favorite part of the job, but in an increasingly polarized DC, there seems to be less and less common ground to land on. I regret the diminished opportunities for policy making and reduced effectiveness of the agency that has resulted.

There is also a public-facing side of the job, with opportunities to explain the law at conferences, schools, and on traditional and social media. I’ve written articles and op-eds, been interviewed on television, testified before Congress and state legislatures. I was the first FEC commissioner with a Twitter account. I’ve been invited to observe elections and confer with people from other countries who are working to grow their democracies. It’s an honor to represent my country as a senior U.S. official in the democracy sphere and to participate in the debate about the most fundamental aspects of our democracy.

And occasionally, there are adventures. Once, a colleague backed out at the last minute of a commitment to attend a ceremonial event hosted by an important international ally. On 10 hours’ notice, I flew halfway around the world to deliver a presentation at an international symposium on democracy. Another time, on an election observation mission, the crowd outside a polling place grew agitated and shots were fired. We were hustled into a car and rushed from the scene. No one was injured, but the local authorities did not want the international observers to get caught up in an unpredictable situation. These kinds of experiences are not typical, but neither has this been a nine-to-five desk job.

What skill sets or traits—legal or otherwise—do you see as particularly important as an election regulator?

Knowledge of the law, negotiating and advocacy skills, the ability to write and speak clearly and forcefully, to see around corners and foresee potential pitfalls and loopholes, but most of all, judgment.


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