Ahead of Election, Panelists Detail How to Protect Voters’ Rights, Respond to Risks

As the presidential election approaches, organizations across the United States are ramping up efforts to respond to obstacles to voting and certification. In September, the Liman Center and the Quinnipiac-Yale Dispute Resolution Workshop launched its fall series with “Voting 2024: Access, Rights, and Risks.” Current and former Liman Fellows addressed protecting the right to vote, combating misinformation, and responding to lawsuits about the electoral process. Arthur Liman Professor of Law Judith Resnik moderated.

Danny Haidar ’24, a 2024 Liman Fellow and Assistant Attorney General pending bar admission in the Michigan Attorney General’s Office, addressed the challenges facing local officials. Haidar’s focus is monitoring election-related legal disputes and defending election officials in court.

“One of the things I learned in law school is that in America, there is not just one presidential election — there are over 50,” Haidar said.

And then there is litigation, which Michigan has already seen this year. Haidar described how election litigation typically starts in the leadup to Election Day and continues well after.

“From August to September, there is ballot-related litigation,” Haidar said. “From September to November, litigation centers on ballot processing, and after the election, the focus shifts to certification of results.”

Terin Patel-Wilson ’24, another 2024 Liman Fellow, is part of a team at the N.A.A.C.P. Legal Defense Fund, Black Voters on the Rise, that aims to protect voting rights for communities of color in the South. Patel-Wilson works in South Carolina to limit efforts to lock out voters.

“It is non-partisan work that helps expand Black political power,” Patel-Wilson said, emphasizing the need to view voting rights through a racial justice lens.

“One of the things I learned in law school is that in America, there is not just one presidential election — there are over 50.” 

— Danny Haidar ’24

Actions such as “poll site placements and whether they get consolidated, whether there has been adequate notice given to people about any changes, and changes to who examines or purges voter rolls and how often” can result in voter suppression.

New polling site placements or consolidations and lack of adequate notice to voters about these changes can result in voter suppression, Patel-Wilson said, as can changes who examines or purges voter rolls and how often.

Alice Clapman ’03 is Senior Counsel for the Voting Rights Program at the Brennan Center for Justice and was a 2006 Liman Fellow with the ACLU Immigrants’ Rights Project. She discussed the rise of misinformation, disinformation, and malinformation, together known as MDM. Clapman told how false claims and conspiracy theories about non-citizens voting and defective voting machines have proliferated in recent years.

“MDM has been rampant since 2020,” she said. 

But government sources can protect elections, Clapman said, noting that multimedia presentations and live demonstrations have been effective in demonstrating voting machine integrity and ballot security.

Elizabeth Pierson ’18, a 2018 Liman Fellow at Legal Action of Wisconsin and now a litigation associate at a law firm, told how disinformation is influencing local election practices. People suspicious of voting machines have pushed some towns to hand count ballots instead — even though, she added, studies show that hand counting is not safer than voting machines.

A Wisconsin town, Thornapple, removed all voting machines, including those required by federal law for accessibility. The United States Department of Justice has sued the town to reinstall the equipment as required by the federal Americans with Disabilities Act.

“When we are talking about attacks on voting rights, it is the most vulnerable who are impacted,” Pierson said.

Larry Schwartztol ’05, is a Professor in Practice and Faculty Director of the Democracy and Rule of Law Clinic at Harvard Law School and was a 2006 Liman Fellow for the Democracy Program at the Brennan Center for Justice. He discussed the 2020 election.
 
Schwartztol described how state officials were pressured to appoint electors contrary to the outcome of those states’ popular votes in the presidential election. Ambiguities in the 1887 Electoral Count Act also “gave rise to the notion that members of Congress could review the election outcomes in each state” during the electoral vote count in the joint session of Congress, he explained. He also described how the bipartisan 2022 Electoral Count Reform Act (ECRA) addressed these issues.

“The law is now clear; the state must appoint electors based on what happened on Election Day. There is no longer a plausible hook to reject the choice of voters,” Schwartztol said.

The ECRA also changed the threshold and clarified the grounds for objecting to a slate of electoral votes during the joint session of Congress.

“That does not eliminate the possibility of frivolous objections, but it is a substantial safeguard,” he noted.

The panel concluded with recommendations for how individuals can help. Pierson encouraged people to volunteer on Election Day as a poll worker or watcher. Speakers fluent in languages other than English are especially needed, she said, noting that voters have the right to language assistance at the polls.