My MoFo Story: Megan Smith on Building Legal Practice Skills Through State Survey of Election Audits

Before Morrison & Foerster’s 2020 summer associate program began, I expected my pro bono work would consist of small assignments that were simply pieces of larger projects, mostly managed by the lawyers. I was happily surprised when I was given the opportunity to be part of a robust, multi-dimensional project that not only allowed me to take full ownership of the final product, but also challenged me to step up my written, oral, and visual communication skills.

Under the supervision of associates Amy Larsen and Jonathan Babcock, I worked with fellow summer associates Rachel Gallagher and Rachael Hanna to research election procedures in all fifty states. We then drafted a written report detailing our findings and presented it to long-time MoFo pro bono client, the Brennan Center for Justice. Amy and Jonathan, along with associate Lyle Hedgecock and partner David Newman, have been working with the Brennan Center for Justice on a number of projects focused on ensuring the security of the 2020 U.S. elections.

As an independent, nonpartisan law and policy organization, the Brennan Center works to uphold our country’s systems of democracy and justice. Given the importance of ensuring fair and free elections in November 2020 and beyond, our team took a deep dive into the post-election audit procedures used by all fifty states.

The goal of post-election audits is to ensure that voting systems have correctly recorded the votes cast by checking voting equipment and vote-counting procedures for accuracy. Audits typically involve comparing a sample of paper ballots or voting records with results produced by an electronic voting system. Thirty-eight states and the District of Columbia currently perform some kind of post-election audit. However, when it comes to discrepancies uncovered by the audits, states’ actions vary significantly — an audit-identified discrepancy in some states may lead to a full recount, while in other states a discrepancy leads to no action at all. Our goal was to identify these differences and find common threads, particularly among states that use percentage discrepancy margins to trigger an expanded audit.

Conducting the Research

Our team began the research by examining state statutes, election manuals, and other online resources. Creating a full and accurate report, however, required that we directly contact state election officials and agencies, which entailed numerous emails and phone calls over the course of several days. The process of tracking down the needed information required our team to think quickly to articulate the aim of the project, convey the information we hoped to gather, and answer questions from very busy election administrators. This original research required a proactive approach, and with each phone call my confidence in speaking as the project’s representative grew.

Preparing the Report

As the three summer associates compared our research, we decided to categorize states using three broad questions:

(1) Is there a post-election audit?

(2) If yes, is there a discrepancy margin that may lead to some further action?

(3) If yes, what type of action is triggered when that threshold is met?

We then developed nine additional categories based on these qualifiers, placing each state in one of these groups. Although synthesizing such a broad data set was initially challenging, our team was able to design a comprehensive report that both addressed the client’s needs and provided valuable context. The breadth of this project and volume of information involved required us to balance creating a complete product while maintaining conciseness and clarity — a critical skill as we prepare for practice.

Presenting Our Findings

We presented our findings to the Brennan Center through a video meeting during the final week of the summer associate program. I did not expect the opportunity to interact directly with a client as a summer associate—and certainly could not have imagined the opportunity to directly present findings on behalf of a team in a live meeting. Beyond providing valuable, specific feedback on both our slide deck and verbal presentation, our associate supervisors gave us complete autonomy over the presentation itself. Over the course of forty-five minutes, our team of three summer associates discussed the variation among state post-election audit systems and answered the client’s questions. After the presentation, the team discussed how we could build upon our existing report to respond to specific areas of interest that the client expressed during the meeting. It was an excellent exercise in shaping a final product to meet the client’s needs.

Conclusion

Due in part to the post-election audit procedures project, I am leaving the summer associate program feeling more prepared to practice than when I entered. Each phase of the project — the research, the creation of the report, and the presentation — challenged me in a different area of legal practice. Further, MoFo’s demonstrated commitment to elections and voting rights is more important now than ever before. As a former middle school teacher, I believe deeply in the power of civic engagement and education. A key factor in motivating young people to vote is assuring them that their votes will count, and post-election audits have the power to do just that. This project gave me the opportunity to be a small part of working toward the greater goal of ensuring free and fair elections in all fifty states.

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Megan Smith is a rising 3L at Georgetown University Law Center and is a Litigation summer associate in MoFo’s Washington, D.C. office. She graduated from the University of Alabama in 2016 with a B.S. in economics and a B.A. in political science. Before law school, Megan was a middle school math teacher in the Mississippi Delta and she currently volunteers for Hugh O’Brian Youth Leadership, a nonprofit that encourages young people to lead lives dedicated to leadership, service, and innovation.