Preparation Is Critical for Election Lawyers, Poll-Watchers

This is the fourth in a series on pre-election lawyering.

This column focuses on the selection, preparation, and plans for the mobilization and use of poll watchers and lawyers for elections.

If these preparations are not executed properly, the GOP could face disadvantages in Election '24.

We hear the term poll-watcher during campaign and election cycles, a great deal. 

But what exactly is a poll-watcher, and what do they do? 

What purpose do they serve? 

Poll watchers are "lumped-in" with pre-election lawyering, because poll watchers observe violations and report them to an legal team.

Compellingly, poll-watchers serve two functions:

• First, they observe the voting process at polling locations. They observe the line to vote and check-in and check-out process (but not actual voting). Poll watchers look for fraud, cheating (i.e., ballot stuffing), and voter intimidation.

Poll watchers also monitor the closing of voting locations. They observe the tallying of voters who came to the location and ballots cast. They also watch the securing of ballots and steps to maintain a secure chain of custody of ballots (so that ballots are not discarded or added).

• Second, poll watchers are needed when ballots are counted. These settings are typically mail-in/absentee ballots, provisional ballots, and recounts. Poll watchers must ensure that ballots are accurately counted and preserved for review (i.e., chain of custody). Poll watchers are needed for all days of voting and ballot counting.

Those watching the polls must be trained on how to identify, record, and report violations.

They should be paid for training and watching because payment likely would result in a higher quality product, so to speak.

Lawyers address issues such as: erroneous tabulations; a shortage of regular or provisional ballots at a location; polls opening late; polls not being staffed; an inability for poll watchers to observe voting; and claims of voter intimidation, electioneering (handing out items in exchange for votes), and campaigning too close to the polls.

Attorneys may have to go to court to address these issues or respond to Democratic Party-initiated litigation. If so, counsel would write motions and briefs, and they would appear in court for oral arguments.

Before voting begins, Republican lawyers need to have research, motions, and briefs (a "brief bank") prepared on issues which they will likely face.

Court documents need to be filed in court as soon as a violation is discovered so that a judge can stop the voting in that location as quickly as possible.

If lawyers have to start researching and writing when the violation occurs, many votes will be cast by the time that the Republican court documents are finished and filed in court (and a judge hears the arguments).

The best way to achieve expeditious filing is to research and write as much as possible prior to the voting (adding the relevant facts, etc. after the infraction) so that court documents can be filed quickly after a violation occurs.

Republicans must ensure that the lawyers for Election Day specialize in the needed area of law and are the best at their specialty.

The GOP would be wise to tap only experienced litigators (that is, attorneys who regularly argue in court). It's litigators who should be designated to argue cases on voting days.

More clearly stated, Republicans do not want to send an office practictioner or a recent law school graduate to court.

This becomes especially true when Democrats would likely send an experienced litigator.

In that situation, the Democratic side would likely prevail in court.

A national lawyering team should be overseeing state teams; advising as appropriate.

Another way to ensure the best lawyering is to pay for it.

It's unlikely that the best lawyers and firms would work pro bono.

Lawyers would have to be paid for answering inquiries on voting days, arguing in court, and doing the "brief-back" before voting as well as any research and drafting of court document that arises. Lawyers need to be trained on election law and the situations which they would likely encounter.

In the 2020 Election, Republicans recruited recent law school graduates, volunteer lawyers, and retired lawyers.

Unfortunately, this strategy has its pitfalls.

Recent law school graduates do not have the legal skills of seasoned counsel.

Volunteer lawyers may not put as much time into a "volunteer enterprise," as they would for paying clients.

This may well apply to retired lawyers, as well — who might not put the same effort into a "project" as counsel who practice daily.

Thus, poll watchers and lawyers should be identified and trained as early as possible.

This process can't wait until late in the campaign and election cycles.

Ideally, poll watchers and lawyers would be chosen before a state's primary so they could work in that primary. The primary would be a "test run" prior to the general election.

Additonally, poll watchers and lawyers should have mock election exercises to ensure that the team functions effectively.

Merely having poll watchers or teams of election lawyers at a location is not sufficient.

They must be beyond effective.

They must have the knowledge and skill required to fight and win! 

Michael B. Abramson is a practicing attorney. He is also an adviser with the National Diversity Coalition for Trump. He is the host of the "Advancing the Agenda" podcast and the author of "A Playbook for Taking Back America: Lessons from the 2012 presidential Election." Follow him on his website and Twitter, @mbabramson. Read Michael B. Abramson's Reports — More Here.