Recovering lawyer and editor Dahlia Lithwick -- currently of Slate and Newsweek -- today explores the surging role of lawyers in keeping elections honest (or at least trying to):
Election litigation is a boom industry, even in a crumbling economy. [Loyola election law professor Richard L.] Hasen recently published a study indicating that the number of lawsuits filed over elections rose from an average of 94 in the four years before the 2000 election to an average of 230 in the six years after. Paradoxically, the best way to inoculate America against the growing pandemic of "vote fraud" allegations from the political right, and the anxiety over widespread voter intimidation and suppression from the left, may be by throwing more lawyers at it. That's why the single most important role for the armies of attorneys working the 2008 election may ultimately just be to be there: to avert the biggest conflicts and bear witness to the small ones. Send in enough lawyers, and you may just ensure that a watched polling place never boils.
A 2006 Harris poll found that only 18 percent of Americans trust attorneys completely. That's a sad and unfair reflection on the contempt we feel for the profession in this day and age. One can't help but wonder what it says about public confidence in our voting systems, then, that despite our almost complete lack of faith in them, we will rely almost exclusively on lawyers to protect the integrity of this election.
Blawgletter shares Ms. Lithwick's ironic sense. The public relies on our profession to uphold the rule of law -- in elections as elsewhere -- while doubting our integrity in doing it. That stings.
Has it been ever thus? We dimly recall that the Puritans disliked the legal profession -- because it doesn't produce tangible stuff? -- but avidly employed it in litigation and plucked from it many leaders (including John Winthrop).
Also consider Tocqueville's view of the American lawyer as bridge between the (economic and political) aristocracy and common folk:
The more we reflect upon all that occurs in the United States the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.
What has changed? We suspect that the invisibility has disappeared.
For good or ill.
Comments