The American Bar Association House of Delegates adopted new election law policy at its Feb. 14 session that would allow the association to oppose federal, state and local efforts that restrict or are intended to limit voting rights of Americans.
In a second resolution, the House, which is known as the HOD, approved new policy supporting the push by a bipartisan group of legislators in Congress to clarify and modernize the language and structure of the Electoral Count Act of 1887 (ECA). The act, which grew out of the disputed 1876 election and came under renewed scrutiny in the aftermath of the 2020 presidential election, is considered convoluted by members of both parties and in need of a rewrite.
The election-related policies, both filed as late resolutions, were among about two dozen measures approved by the HOD on the final day of the ABA 2022 Virtual Midyear Meeting, which began Feb. 9. This year marked the second consecutive winter meeting that was held virtually because of COVID-19 concerns.
Resolution 800 lists seven areas of concern, which would allow the ABA Governmental Affairs Office and the association’s president to speak out on some of the proposed election law changes. It would also permit the association to file amicus briefs in court. Some of the actions cited in the new policy include when state entities decertify election results without cause, remove independent election officials and conduct “unwarranted voter purges.”
Resolution 801 supports several of the principles incorporated in the emerging legislation that has received bipartisan support on Capitol Hill. They include clarifying the vice president’s role in certifying a presidential election, increasing the number of lawmakers who could object to a state’s electors and reworking 135-year-old law in other ways.
“Now is the time for the ABA to speak out on behalf of lawyers across the country,” said Lucy Thomson of Washington, D.C., who spoke on behalf of Resolution 800.
Both election-related resolutions drew opposition, in part because they were cleared by the Committee of Rules and Calendar and distributed less than 24 hours before the meeting. But both survived attempts to postpone consideration by wide margins.
Dennis Archer, a former ABA president and retired Michigan Supreme Court justice, advocated passage of both: “You don’t want to lose the opportunity to lobby in Congress,” he said in urging action now.
Other new policies adopted by HOD were aimed at helping everyday people, such as veterans, those facing evictions, children involved in child welfare cases and seniors in nursing homes. Resolution 603, for instance, urged the federal government to review processes and procedures used when determining veterans’ discharge upgrade petitions to ensure they are treated fairly. Resolution 612 proposed adoption of the ABA Ten Guidelines for Residential Eviction Laws. Resolution 601 urged federal entities to enhance the transparency and accountability of nursing home ownership and management. And Resolution 613 asked that children involved in dependency or child welfare cases are actively engaged unless they waive their right to be present.
Other new policies adopted by the HOD, the association’s 596-member policymaking group, include:
- Asking the Biden administration to do more in the areas of transparency and fairness in carrying out the nation’s immigration laws. Resolution 609 urged that the U.S. asylum system affords persons seeking protection from persecution or torture more transparency, due process, access to counsel and a full and fair adjudication, and advocates for the end of the use of Section 265 of Title 42 of the U.S. Code to block and expel asylum-seekers at the U.S. border. Resolution 610 seeks governmental entities to eradicate real and perceived bias in the enforcement of immigration laws.
- Resolution 608, which is intended to support Afghans at home and abroad. The new policy allows for advocacy for both legislation and other administrative remedies that would facilitate continued departure of Afghans from their country and streamline processing of immigration benefits. Speakers said it would provide assistance to Afghan women, children and former judges, among others.
- Resolution 611, which urges all federal officials to adopt laws and policies to ensure that all persons in each state, regardless of immigration status, are included in the apportionment count used to redistribute seats in the U.S. House following each decennial census. The policy addresses an issue raised most recently by federal litigation filed in 2018 that could arise again before the 2030 census.
- Concurrence of the action of the Council of the ABA Section of Legal Education and Admissions to the Bar in making amendments to Standards 205, 303, 507 and 508 of the ABA Standards and Rules of Procedure for Approval of Law Schools. Specifically, Resolution 300 expands nondiscrimination and equality of opportunity to include military status, ethnicity and gender identity and expression; adds a professional identity formation requirement and a requirement that students receive education in bias, cross-cultural competency and racism both at the beginning of their legal studies and later during their law school careers; requires all admitted students receive information about financial aid and student loan debt resources; and adds information on law student well-being resources to the range of student services that a law school is required to offer.
- Resolution 501, which urges bar admissions authorities and other stakeholders in legal education and licensing of new attorneys, to adopt clear and unform policies allowing for accommodations for lactating individuals. Two years ago, the ABA adopted similar policy regarding courthouses.
All resolutions and reports can be found here. Only proposals adopted by the HOD constitute association policy.a