ABA Journal, e-Report, October 29, 2004

Four-lawyer Chicago Firm Is Headed to Florida to Monitor Polls

BY MOLLY McDONOUGH

uanita broke both her wrists while in-line skating in Florida. She brings her granddaughter with her to the polls to help her vote. Should she be allowed to vote as she chooses on Nov. 2?    

Chicagoan Christopher Hurley and the three other lawyers in his firm, Hurley, McKenna & Mertz, are flying to Florida to help voters sort out the answers to this scenario or other similar ones. Partners Hurley, Mark R. McKenna and Michael T. Mertz and associate Michael S. Keating are among the thousands of lawyer monitors—partisan and nonpartisan—descending upon Florida and other battleground states key to deciding who will be the next president.

"As a lawyer, I never have liked it when somebody bullies someone out of their civil rights," says Hurley, a registered Democrat and veteran trial lawyer. "I have a guttural response to that."

Democrats will have at least 2,000 lawyers like Hurley headed to Florida, with another 8,000 distributed throughout the country. The GOP has its own army of lawyers supporting the GOP "Victory" legal team to monitor the polls and act as first responders if problems arise. And this week, the Rainbow/PUSH Coalition teamed up with the National Bar Association to announce plans to send teams of lawyers to monitor polls, especially in battleground states. Other activist organizations have announced similar monitoring efforts.

Some observers are predicting an election so close that the U.S. Supreme Court will be using its controversial 5-4 decision in Bush v. Gore in 2000 as a precedent to decide the fate of this year’s candidates.

UCLA law professor Daniel Lowenstein, co-editor of the Election Law Journal, is less concerned that there will be a 2000 presidential repeat. The statistical probability is pretty low, he says. But he acknowledges there will likely be close calls at lower-level political races and that courts will inevitably be called upon to resolve those disputes.

Whether the presidential election ends up with a razor-thin margin or a clear mandate, lawyers from both sides are preparing for the worst. They are training so they can spot electioneering, disenfranchisement or harassment of voters, and fraud.

For the most part, Lowenstein sees this as a good thing. "There can be some prevention," he says. "Because everybody is looking so carefully, some problems may be taken care of in advance."

But Lowenstein warns there can be a negative impact if a massive presence of lawyers creates problems or tensions that wouldn’t otherwise exist. Still, he hopes the lawyer mobilization efforts will do more good than harm.

So does Hurley, or he wouldn’t be traveling the nearly 1,400 miles to Florida on his own dime.

Hurley makes no bones about being a longtime Democrat, but says his goal is to ensure that all legitimate voters get a chance to cast a ballot in the Miami area, where the DNC has assigned him and his colleagues to monitor the polls.

A GOP spokeswoman referred questions about the party’s lawyer mobilization efforts to state parties. The Republican Party of Florida did not return calls for comment.

After the 2000 presidential election proved so close in Florida, Hurley decided this time around that he should get off the sidelines. "We do not want to sit on the bench during the most important election of our lifetimes," says Hurley, who equates the excitement to going to the Super Bowl.

Hurley gives several reasons for essentially shutting down his firm for a week to monitor polls. The first is admittedly self-serving. He doesn’t like the Republican campaign’s attacks on the trial bar and its efforts at tort reform. The other is personal. He worries his twin teenage boys will be targets of a military draft if the Iraq war continues for long.

The other lawyers, who have very little political experience and, until they volunteered, no formal training in election law, say they share Hurley’s views and that the decision to take several days off at their own expense was unanimous.

In preparation for their trip, Hurley and his colleagues received training materials via e-mail, including a list of scenarios like the one that involved Juanita. The solution to Juanita’s quandary is that legally she can vote with her granddaughter’s assistance.

If the Hurley McKenna group doesn’t make it in time for in-person training in Florida on Sunday, they plan to participate in a conference call for training.

They get their marching orders when they land, and only know that they have to stay 50 feet away from the polls because they are not licensed in Florida, that they will be split up, and that they will be wearing hats that identify them as lawyers.

Whether they’ll make it home as planned on Nov. 3 remains to be seen. Hurley isn’t anticipating an extended stay to help with any post-election litigation. But he knows it’s a possibility.

"If they ask us, we’ll stay," he says.