Category Archives: election law biz

“William Consovoy Dies at 48; Took Conservative Cases to the Supreme Court”

NYT:

William Consovoy, a rising star within the conservative legal firmament who made his name arguing landmark cases on election law and affirmative action, often before the Supreme Court, and who represented President Donald J. Trump in his effort to keep his tax returns private, died on Monday at his home in Falls Church, Va. He was 48.

Thomas McCarthy, a close friend with whom he founded the firm Consovoy McCarthy, confirmed the death. Mr. Consovoy was diagnosed with brain cancer in 2020 and stepped away from litigation last fall.

Over the course of a relatively short career, Mr. Consovoy established a reputation as one of the best and most dogged conservative litigators before the Supreme Court, with a penchant for cases aimed at making major changes to America’s constitutional landscape.

He clerked for Justice Clarence Thomas during the 2008-9 Supreme Court term, and he came away with the conviction that the court was poised to tilt further to the right — and that constitutional rulings that had once been considered out of reach by conservatives, on issues like voting rights, abortion and affirmative action, would suddenly be within grasp.

Mr. Consovoy was perhaps best known for his work with Edward Blum, the conservative activist who engineered the effort to have the Supreme Court overturn Section 4 of the Voting Rights Act and, more recently, to outlaw affirmative action in higher education.

In 2013, in one of his early cases before the Supreme Court, Mr. Consovoy successfully argued the Section 4 case, Shelby County v. Holder, persuading the Court to get rid of the requirement that several states and counties, mostly in the South, had to receive federal clearance before changing their election laws.

“From the beginning of Shelby, Will was helpful in conceiving the case and maneuvering it to the court,” Bert W. Rein, a founder of Wiley Rein, where Mr. Consovoy worked until 2014, said in a phone interview. “Will was just critical to all of that.”

The decision set off a wave of new voting laws, including limits on early and absentee voting.

Mr. Consovoy often led the charge in attacking existing laws in court or defending new ones. In 2020 alone, he argued against an extension of the deadline for mail-in ballots in Wisconsin, the re-enfranchisement of felons in Florida and a California plan to send absentee ballots to all registered voters.

Condolences to his family and friends.

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Wishing Comfort to the Family and Friends of the Great Journalist, Blake Hounshell

Like so many others, I am shocked and saddened by the tragic death of journalist Blake Hounshell. I pitched Blake a number of stories when he was a Politico Magazine editor. He was never an easy sell, and everything he ended up taking he made much better. We talked a lot about the risks to American democracy once he moved over to write the “On Politics” column and edit at the NY Times. He was brilliant and knew just the right questions to ask to get past the usual talking points to the heart of the matter. He cared about truth and he cared about democracy. He was also a fundamentally decent and caring person in an industry and era where those attributes can be hard to find.

Just reading the outpouring of love and mentorship from his fellow journalists is heart wrenching, and it pains me to know of his mental health struggles. He leaves behind a spouse and two children. If you can, consider giving to this GoFundMe for his family set up by the NYT and Politico.

May his memory be a blessing.

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Wishing Good Health and a Full Recovery to Representative (and former Election Law Prof) Jamie Raskin, Upon Announcement of Cancer Diagnosis

I was sorry to see this news from my friend Jamie Raskin, who has been a real hero of democracy over the last few years in Congress, leading the charge against the attempt to subvert election results in 2020. That he was such a hero during a period of family tragedy is all the more remarkable.

Jamie reports his prognosis is excellent after treatment, and we will keep him in our thoughts for a full and complete recovery.

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Politico Deep Dive into Marc Elias

Politico:

Founded last year by longtime Democratic operative Marc Elias — he was Hillary Clinton’s legal counsel during her failed 2016 campaign — the firm has become the central node of the official Democratic Party’s legal strategy. With 80 lawyers and 51 support staff, the firm says it’s the largest private law firm in the country, solely dedicated to “helping Democrats win, citizens vote, and progressives make change.” Democratic candidates and their affiliated groups have funneled at least $21 million into the firm’s coffers this cycle so far, public filings with the Federal Election Commission show. The firm now represents 950 clients, which include the Democratic National Committee; the Democratic campaigning committees helping to elect senators, representatives, governors, secretaries of state, and attorneys general; and at least 150 House and Senate campaigns and members of Congress. And it’s clear, from interviews with nine of the firm’s 15 top partners, that Elias’ attorneys see their mission as making a last stand for democracy — a task that in their view requires giving election denialism (and Republicans) no quarter in court….

As Elias sees it: Game on — he relishes the trench warfare. In almost three decades of practicing law, he’s earned more than a few critics. On the left, he’s been charged with exaggerating his wins in court and making bad precedent. Civil rights lawyers distance themselves from his work, noting his loyalties to the Democratic machine. On the right, he’s largely pilloried as a partisan hack — but some will admit that his central coordinating role is giving Democrats an edge. As former Trump adviser Steve Bannon says of Elias on his streaming show, “The War Room,” “He’s the standard. We gotta match that guy.” Then there’s Fox News host Laura Ingraham, who tells her viewers one night in November, “Republicans, though, come on, they need their own version of Marc Elias. Complain about him, but he’s pretty successful.”…

When the firm launched in September 2021, the country was still reeling from Jan. 6. The attack on the Capitol was the culmination of a monthslong effort by Donald Trump and his allies to interfere with the results of the election — an effort that cut directly through the court system. Trump brought 64 lawsuits advancing his baseless claims that the results were fraudulent, but he lost all but one of those lawsuits (and the one he did win wasn’t consequential to the outcome of the election). But the former president’s conspiracies still found room to propagate among Americans, thousands of whom made the trip to D.C. for a rally that ultimately turned deadly. Looking out at this chaos, Elias says, he decided it was time to start a new endeavor that would focus solely on this political crisis. So he convinced 10 partners and three other lawyers at Perkins Coie, including Nkwonta, to splinter off from the law firm where Elias had built his reputation among Democratic Party figures. And with that, the Elias Law Group was formed. (Previously, in 2020, Elias had also founded Democracy Docket.)…

As the fights over granular election procedures become more and more protracted, there is a growing concern among several voting rights lawyers and academics I spoke to that the work that civil rights organizations have undertaken over the last century will be swept under the rug. They argue the duty of election lawyers like Elias is to advance the interests of the candidates he represents, whereas voting rights lawyers focus on the broader non-partisan goal of defending voters of color.

Sherrilyn Ifill, the former president of the NAACP Legal Defense Fund and a longtime voting rights lawyer, says that often means being willing to sue Democrats who introduce hurdles to the ballot, too, as she did against Louisiana Gov. John Bel Edwards in 2020. “You don’t just wake up and become a voting rights lawyer,” Ifill says in a phone interview. “There’s a very particular way of doing that work, and it is deep in community. … Importantly, we jealously protect the Civil Rights statutes, for which our clients marched and bled and died.”

But, she notes, the Republican Party and journalists are also to blame for papering over discriminatory laws with the veil of partisanship.

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“Prosecuting the Fake Electors: Wisconsin Case Study and Template for Other States”

Gretchen Knaut and Shan Wu in Just Security:

Following his defeat in the 2020 presidential election, former President Donald Trump and some of his close associates seized upon an array of fringe legal theories in their efforts to overturn Joe  Biden’s victory. On the basis of one such theory, they assembled slates of Trump “presidential electors” in swing states that Biden had won. They attempted to submit these “alternate slates” to the joint session of Congress on January 6th in the hopes of flipping or casting doubt on enough Electoral College votes to secure a Trump presidential victory. The scheme targeted seven swing states, of which reportedly only one has an active criminal investigation by state or local authorities as of the time of writing. That is a gaping absence, especially given the incriminating evidence produced by the January 6th Committee, and the Justice Department’s decision to launch its own criminal investigation of the scheme. In response to this gap, we have separately produced a report that selects one of the remaining six states, Wisconsin, as a case study for pursuing criminal investigations and potential prosecutions at the state level….

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“Inside a Republican Superlawyer’s Break With Donald Trump’s G.O.P.; An exclusive excerpt from a new book by David Enrich on powerful corporate law firms and how the Trump era changed and challenged one in particular.”

NYT:

Ben Ginsberg’s office at the international law firm Jones Day was like a shrine to the old Republican Party.

Its walls and shelves were crowded with campaign artifacts that he had collected over the years, including on the trail with George W. Bush and Mitt Romney, whose presidential campaigns Ginsberg had helped run. In the summer of 2020, with Jones Day’s neoclassical building on Capitol Hill largely deserted because of Covid, Ginsberg started boxing the stuff up.

Week by week, Ginsberg had been feeling worse about his and his law firm’s work on Donald Trump’s campaign. Jones Day had begun representing Trump back in 2015, only months after Ginsberg and Don McGahn had arrived to set up a political law practice devoted to helping elect Republicans.

Since then, the firm had helped Trump shore up his support among conservatives; worked to staff the upper echelons of his administration; and defended him against sundry investigations. Now it was working for his 2020 re-election bid.

The president was intensifying his message about the risk of a rigged election, and he and his Republican Party had essentially declared war on mail-in voting and other policies that might encourage democratic participation at a time when large areas of the country were operating under Covid restrictions.

At one point, Ginsberg flagged his discomfort to Jones Day’s leader, Steve Brogan, describing Trump’s language as “beyond the pale.” Brogan, a staunch conservative, nodded and said he agreed. But that didn’t mean Jones Day would drop the Trump campaign as a client.

Another time, Ginsberg complained to Michael Glassner, a senior Trump campaign aide. Not only did Ginsberg object to what Trump was saying, but it was just stupid politics, he noted. Why oppose mail-in voting in the middle of a pandemic? (Glassner dismissed Ginsberg as an elitist and a prima donna.)

Other Jones Day lawyers, too, were getting anxious that Trump was laying the groundwork to try to overturn the election results if they didn’t go his way — and that Jones Day would end up being sucked into the ensuing disaster.

What would happen if Trump or his allies asked the firm to take on a case to challenge the election results? To sow doubts about the integrity of those results or the vote-counting process? To defend Trump if he refused to leave the White House?

These were crucial questions for Jones Day, the culmination of five years of having stood by an increasingly radical leader. For how long would the firm invoke its obligation to remain loyal to even the most dangerous clients?

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Princeton University Finds Allegations of Misconduct Against Princeton Gerrymandering Project’s Sam Wang to Be “Without Merit,” Closes Investigations

Last spring the New Jersey Globe raised allegations against Sam Wang, including allegations of misreporting data used in redistricting in New Jersey. As the Daily Princetonian noted at the time: “The New Jersey Globe is edited by David Wildstein, also the author of the April 28 reporting, who prior to his current role at the news outlet was a Republican Party operative in the state. In July 2017, Wildstein was sentenced to probation for in part orchestrating the gridlock on the George Washington Bridge, widely known as the “Bridgegate” scheme associated with former Gov. Chris Christie.”

The allegations of research misconduct were serious against Sam, and were subject to a months-long investigation by Princeton, which has now found the allegations meritless. According to Princeton University spokesperson Michael Hotchkiss: “Dr. Sam Wang is a tenured professor of neuroscience at Princeton University. Following the procedures outlined in the Rules and Procedures of the Faculty of Princeton University, an ad hoc committee of the University’s Faculty carefully reviewed the allegations of research misconduct lodged against Dr. Wang, and found those allegations to be without merit.  The Dean of the Faculty has accepted the committee’s findings, and the matter is now considered closed. Any other investigations involving Dr. Wang have been completed and closed with no findings of policy violations.”

No word yet on whether Wang will pursue legal action against the New Jersey Globe or Wildstein.

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Election Law Academics Update

Here’s my yearly roundup of election law academic hires, promotions moves, visits, accolades:

Tabatha Abu-el Haj will be visiting at Penn in Spring 2023.

Ellen Aprill has retired and is now the John E. Anderson Chair in Tax Law Emerita at Loyola Law School.

Yasmin Dawood has been promoted to full professor at the University of Toronto.

Josh Douglas, Leah Litman, and Franita Tolson have been elected to the American Law Institute.

Jerry Goldfeder, in addition to teaching Election Law and American Democracy, is now the Director of the Fordham Law School Voting Rights and Democracy Project

Rebecca Green has been promoted to Associate Professor of Law at William & Mary Law School.

Sarah Haan been named the Class of 1958 Uncas and Anne McThenia Professor of Law at Washington and Lee.

Rick Hasen joined UCLA Law and became the founding director of the Safeguarding Democracy Project.

Brian Svoboda became Director of the Law and Public Policy Program at the Columbus School of Law at the Catholic University of America, during the middle of the semester last fall. He serves also as an adjunct professor while remaining in private practice at Perkins Coie LLP.

Donald Tobin, after completing a deanship at the University of Maryland, will be visiting at Georgetown in the Fall, taking a leave in the spring and on the faculty at Maryland full-time in the fall of 2023.

Congratulations all!

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What Ken Gross and Tom Brady Have in Common

An unretirement:

KEN GROSS LANDS AT AKIN GUMP: Ken Gross, who retired earlier this year after more than three decades advising clients on campaign finance, ethics and lobbying laws at Skadden, Arps, Slate, Meagher & Flom, has come out of retirement, joining Akin Gump Strauss Hauer & Feld’s public law and policy practice as a senior political law counsel and consultant.

— “I figured if Tom Brady can do it, I can do it,” Gross joked in an interview, noting that even though he kept busy on the boards of a number of D.C. nonprofits following his mandatory retirement from Skadden, “I had watched enough episodes of ‘Law & Order’in the afternoon” that “I said, ‘You know, I don’t feel like I’m done yet.’” On a more serious note, heading to Akin Gump “just seemed like a good fit for me,” Gross said, adding that he looks forward to helping grow the practice there.

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Hasen Moving to UCLA Law

I’m delighted to announce that I will be joining the UCLA faculty in the fall, returning “home” to where I earned my JD and PhD. I can’t wait to be part of this community of excellent and committed scholars, teachers, staff, and students!

I have been so fortunate in my career to have had excellent mentors, colleagues, and friends at all of my professional jobs: clerking for Judge David R. Thompson, as a lawyer at Horvitz & Levy, and on the faculties of Chicago Kent, Loyola Law School (Los Angeles), and UCI Law.

It has been one of the highlights to help build UCI Law as a new law school; I am so proud of what we have all accomplished, and honored to have been part of that faculty, staff, and community. making a difference in the lives of our students and so many others.

Don’t worry; the Election Law Blog will continue as it is. The election law listserv will eventually move to new servers, but nothing will change for now.

Thanks to everyone for their support and well wishes so far!

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