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!

I’m going to catch a lot of flak for this post, so let me begin with with some positive words about Marc Elias, one of the country’s leading (and certainly one of this country’s busiest) election lawyers representing Democratic party and allied interests. And his work was indispensable and heroic in the immediate aftermath of the 2020 election when he and his team helped defeat scores of lawsuits brought by Donald Trump and his allies in Trump’s attempt to overturn the election results based upon ludicrous claims of voter fraud and election irregularities.

But Marc is a controversial figure in the election law world, and he’s become something of an online bully, castigating those who disagree with him even on issues of strategy and tactics who might be natural allies. And once Marc attacks, he has 600,000 Twitter followers who follow suit and believe (thanks in part to some of Marc’s own posts and media appearances) that Marc is singlehandedly fighting against attempts to suppress votes and subvert election outcomes. (In fact, much of this work is done by voting rights lawyers, many without any affiliation with the Democratic Party.) I get lots of messages from election lawyers and professors complaining about Marc but reluctant to voice their criticisms publicly.

As far back as 2015, some voting rights advocates expressed the view that Elias was not following good strategy in pushing an aggressive reading of the Voting Rights Act in cases going to increasingly conservative federal courts. As one advocate recounted to me: “The voting rights community is concerned that that SCOTUS will use these cases to essentially wipe out Section 2 and removing the few teeth it has left. An adverse decision in these cases would give states a blank check to pass truly harmful laws without any vehicle for opponents to challenge them.”

Marc didn’t listen to such criticism, and he brought what I considered to be an extremely weak Voting Rights Act case in Arizona to disastrous results. As I posted at SCOTUSBlog in Feb. 2021 about the upcoming Bnrnovich case, “The Democratic Party’s aggressiveness in using Section 2 in this case, and the deeply split en banc U.S. Court of Appeals for the 9th Circuit decision siding with the Democrats, has provided an opportunity for the state’s Republican Party, its Republican attorney general and the Trump administration (which filed an amicus brief on behalf of the United States before Donald Trump left office) to suggest various ways to read Section 2 as applied to vote denial claims in very stingy ways.” And indeed the Supreme Court took this opportunity in Brnovich last summer to severely weaken Section 2. As I explained in this NY Times oped, in “Brnovich v. Democratic National Committee, the court has weakened the last remaining legal tool for protecting minority voters in federal courts from a new wave of legislation seeking to suppress the vote that is emanating from Republican-controlled states.”

It’s not just about voting rights. Right now, there is an opportunity for real bipartisan movement on anti-election subversion legislation, including reforming the opaque and vague Electoral Count Act. As I explained last week at Slate, “The debate over whether Democrats should pursue their large voting rights package or a narrower law aimed against election subversion became moot on Wednesday when Democrats could not muster up enough votes to tweak the filibuster rule to pass their larger package. Some Republicans are now making noise that they would support narrower anti-election subversion legislation centered on fixing an 1887 law known as the ‘Electoral Count Act.’ Democrats should pursue this goal but think more broadly about other anti-subversion provisions that could attract bipartisan support. Bipartisan, pinpointed legislation is the best chance we have of avoiding a potential stolen presidential election in 2024 or beyond.”

Even though Marc has said that he mostly agrees with me on this point, his main public position has been that anti-ECA legislation is some kind of “trap.” Matt Yglesias went hard after Marc for his public statements against ECA reform, and Marc has been relentless in his criticism of other professors who have (like me) been pushing for bipartisan reform. (When he’s angry he tends to compare professors to “pundits” or to contrast them with “real” lawyers like him who practice law full time.) There are at least half a dozen Republican Senators who are in talks about anti-election subversion legislation, and that is at least a half a dozen more than those who support the Democrats’ larger voting package (a package which apparently has no chance of passing whether there is ECA reform or not.) This is an opportunity that should not be passed up, and Marc could play a much more constructive role here in working on anti-subversion legislation that could help stop subversion efforts in the states—even if it does not give Marc everything he thinks Democrats want.

And then there is Marc’s position on money in politics. Well before Marc was litigating major voting cases he was a campaign finance lawyer, fighting against regulation on the Democratic side. It was Marc working to loosen campaign finance limits on political parties, a move that has increased the role of big money in influencing candidates through the political parties.

Over the weekend, the NY Times reported that Democratic non-disclosing groups have now outpaced Republican non-disclosing groups. Marc has complained that the coverage is unfair because many of the groups on the left are working on issues such as increasing voter access (as though that is a good excuse for non-disclosure of the group’s donors—it’s not). One election lawyer wrote to me, “And did you notice that Elias was paid $20 million by dark money groups to fund his rogue, scattershot legal work in 2020?” The NY Times’ Nick Confessore made a similar observation on Twitter, and he got attacked by the Elias army. Marc’s primary response to the NYT reporting on Democratic-side “dark money” is to call to make it easier to sue journalists for defamation. (He’s since deleted the tweet but this followup remains.)

And this brings me to my final point, about Marc’s style. It is fine to be zealous in one’s advocacy, but one need not be an aggressive bully on social media or elsewhere. I wish that Marc would emulate better the demeanor and manner of his Perkins Coie predecessor, Bob Bauer. No one would accuse Bob of lack of zealousness in representing his clients. But Bob seldom raised his voice, and welcomed (and continues to welcome) fair and civil debate with those with whom he disagreed.

They say you can catch more flies with honey than vinegar, and I think Marc could take a lesson in how to productively engage not just his adversaries but many who sympathize with many of his ultimate goals. And perhaps listen more to others who share overlapping goals but disagree on strategy.

Update and correction: An earlier version of this post stated that Marc worked with Senator McConnell to push through the loosening of party money provisions contained in a 2014 bill. My memory on that was faulty. I apologize for this error but stand by the remainder of this post and the larger points.

Further update: Here’s some evidence of McConnell’s support for the provision, but not his cooperation with Marc.

Congrats to Ken Gross on a well-deserved retirement! Roll Call exit interview:

When Ken Gross embarked on building a political law practice at Skadden Arps Slate Meagher & Flom in the 1980s, most firms represented either Republican or Democratic candidates. He envisioned a nonpartisan venture, catering mostly to corporate clients, and helped spearhead  a model that grew more common on K Street as campaign finance and ethics regulations expanded.

Along with a roster of company clients, the former associate general counsel of the Federal Election Commission also worked for some candidates, including simultaneous representation of Democratic Sen. Daniel Patrick Moynihan of New York and Republican presidential candidate and Sen. Bob Dole of Kansas.

“Both of them were fine with it,” Gross recalled. “I just don’t think you could do that anymore.”

Gross, who joined the firm’s Washington office in 1986, carried out his plans for the practice over the next 35 years, representing mostly companies and trade associations as they navigated the changing legal landscape for political action committees, lobbying, government ethics and gift rules. Longtime clients have included Johnson & Johnson and American Express, among others. He also represented all of Democrat-turned-Republican-turned-Independent Mike Bloomberg’s New York City mayoral bids.

As of this month, Gross is officially retired after hitting his firm’s mandatory retirement age of 70. He will remain connected to Skadden on “pro bono emeritus” status, which affords him access to an office in a separate part of the firm’s building near the White House. 

NYT:

Bill Gardner, who for decades as secretary of state has fiercely defended New Hampshire’s right to hold the country’s first presidential primaries, said on Monday that he would step down after 45 years.

Mr. Gardner, a Democrat first elected in 1976, had largely enjoyed bipartisan support, even as the job of secretary of state — each state’s top elections administrator — has become more political, a national trend accelerated by former President Donald J. Trump’s false claims of widespread voting fraud.

Mr. Gardner, 73, said political reasons did not force his decision, nor was his health a factor, though he reflected during a news conference in the Statehouse in Concord on being the longest-serving secretary of state in the country — one of only four New Hampshirites to hold the job since 1929.

“The two previous secretaries of state died in office,’’ he said. “I thought about that. Was I going to be one like that?”…

Mr. Gardner escaped Mr. Trump’s campaign of personal insults and pressure in 2020, aimed at other election officials in battleground states that President Biden won, likely because the race in New Hampshire was not especially close.

However, after Mr. Trump made the baseless claim in 2016 that “millions” of illegal votes had been cast by noncitizens across the country, Mr. Gardner agreed to join a commission that Mr. Trump set up to investigate. His decision to join the commission, even after Mr. Trump falsely claimed that he had won New Hampshire, was sharply criticized by some of his fellow Democrats. The commission disbanded after numerous states refused to cooperate with what they considered to be intrusive requests for voters’ information.

Mr. Gardner defended the commission at the time, and his role on it, saying he had hoped the “facts would end up speaking for themselves” about the lack of fraud. On Monday, he reiterated his belief that the commission was meant to restore Americans’ eroding trust in election results.

But at the time, Democrats’ disappointment over his role led to the most serious challenge that he faced for re-election, in 2018, when another Democrat, Colin Van Ostern, nearly unseated Mr. Gardner.

You can read it at this link.

And you can read my own letter supporting Dale’s nomination at this link.

I was very pleased to draft this letter in support of Dale Ho for a federal judgeship. A snippet:

I have known Mr. Ho for many years through his work on voting rights and democracy issues at the NAACP Legal Defense and Education Fund and at the American Civil Liberties Union. As someone who follows election law legislation and litigation very closely in my role as professor of law and political science and as editor of the Election Law Blog, I have observed Mr. Ho as a litigator and as a Supreme Court advocate.  I have interviewed Mr. Ho and appeared on panels with him.

I carefully reviewed the transcript of his work as a trial court lawyer in the case of Fish v. Kobach, which I consider to be the most important voting rights trial so far of this century. I wrote in detail about the case and his role in it in my 2020 book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy (Yale University Press 2020). His advocacy in that case helped to reenfranchise at least 30,000 Kansans of all political parties who had their registrations put on hold by a law he demonstrated served no governmental interest.

From all of my observations, I can say that Mr. Ho is a brilliant lawyer. I believe his cross-examination skills are about the best I have ever seen, and his oral argument before the Supreme Court in Trump v. New York on the potential inclusion of a citizenship question on the census was masterful. In that oral argument, Mr. Ho relied upon text, precedent, and history to make an argument that ultimately proved successful before the Supreme Court in a case of national importance to our democracy.

Mr. Ho has shown himself consistently on the side of the voters, regardless of political party. He has defended Democrats, Republicans, and independent voters to assure that they have fair access to the ballot and an election system free of bias and partisanship. He is a zealous advocate who could have continued to pursue a career in private practice that no doubt would have been lucrative and successful; instead, he made the laudable choice to help protect our democracy and assure the fair administration of Justice.

Mr. Ho is a person of integrity. He has the ideal temperament to be a federal judge. He is evenhanded and even-keeled. Despite his passion for the cause of voting rights and democracy, he invariably shows deep respect to opposing counsel and to the judiciary. He has a commitment to fairness and the rule of law, and a great love for the United States Constitution and its promise of equality and fairness. I expect as a judge he will rule on the law and the facts, paying attention to text, history, and justice.

KSAT:

The League of United Latin American Citizens (LULAC) is mourning the loss of its longtime legal counsel, and San Antonio attorney Luis Roberto Vera, Jr.

Vera, 65, died overnight in San Antonio following a lengthy battle with an illness, according to LULAC. He was surrounded by family at the time of his passing.

“Vera waged a courageous battle against an illness that finally claimed his life. Still, he had remained steadfastly active and working until very recently, the trademark of the fiery civil rights warrior for nearly 30 years,” LULAC said in a release.

LULAC’s National President Domingo Garcia said Vera was one of the greatest defenders of the Latino community, and he will be remembered as such for years to come.

“We have lost a friend, and our nation’s Latino community has lost one of its greatest defenders. Luis was a man whose fight for justice often took him from the streets of our poorest barrios in San Antonio to the marbled hallways of our federal courts. Judges knew when Luis Vera walked into their courtroom, he was there to win on behalf of millions of Latinos, and he did just that. He was widely respected, even by those who presented opposing legal arguments in landmark cases across a broad spectrum from voting rights to educational, employment, and housing discrimination lawsuits filed by LULAC. Luis followed in the footsteps of those before him who have helped build LULAC into one of America’s most respected civil rights organizations. Vaya con Dios Luis Vera,” Garcia said.

Sherrilyn has been an inspiring leader fighting for the cause of voting rights at a time when states have increasingly passed laws making it harder for people, especially people of color, to register and to vote and as conservative courts have become increasingly hostile to the vision of the Voting Rights Act that Congress had in mind. She’s been at the forefront of some of the most important battles to help protect American democracy. We are lucky for her service and I can’t wait to see what she does next.

If anyone can fill her huge shoes, it’s Janai Nelson. I’ve known Janai since she was a law professor and we’ve worked together on a number of projects, including the Fair Elections During a Crisis report issued in the midst of the 2020 elections where she played a crucial role in forging the final set of recommendations. She’s also an advisory board member for the UCI Law Fair Elections and Free Speech Center. She’s brilliant, strategic, and relentless in the fight for justice.

Kudos to the LDF for this successful leadership transition.

Brian Leiter:

Based on the latest Sisk data, here are the ten most-cited law faculty working in election law in the U.S. for the period 2016-2020 (inclusive) (remember that the data was collected in late May/early June of 2021, and that the pre-2021 database did expand a bit since then).  Numbers are rounded to the nearest ten.    Faculty for whom roughly 75% or more of their citations (based on a sample) are in this area are listed; others with less than 75% of their citations in this field (but still a plurality) are listed in the category of “other highly cited scholars who work partly in this area.” 

Election Law

Huge blow to the OC. Let’s hope they can find someone with Neal’s stellar reputation for competence and integrity:

Brian Leiter:

Based on the latest Sisk data, here are the ten most-cited law faculty working on legislation (understood broadly to include statutory interpretation and study of the legislative [e.g., Congressional] process) in the U.S. for the period 2016-2020 (inclusive) (remember that the data was collected in late May/early June of 2021, and that the pre-2021 database did expand a bit since then).  Numbers are rounded to the nearest ten.    Faculty for whom roughly 75% or more of their citations (based on a sample) are in this area are listed; others with less than 75% of their citations in this field (but still a plurality) are listed in the category of “other highly cited scholars who work partly in this area.”  (Thanks to Professors Ryan Doerfler and Daniel Rodriguez for help in thinking about the contours of this specialty and identifying relevant scholars; mistakes are mine!)

Legislation (including statutory interpretation and legislative process)

National Law Journal:

After last year’s flurry of pre- and post-election lawsuits, election litigation has not relented as lawyers meet in courtrooms across the country to hammer out voting rights disputes, redistricting disagreements, and a host of other elections-related issues.

Even months after the election, lawyers continue to litigate bans on “line warming” at polling stations, voting laws passed in Republican state legislatures after the election, and gerrymandered redistricting maps in numerous states.

Experts and election lawyers say the increased tempo of election litigation will not slow down—even outside of election years—as new legal issues arise and new law firms emerge to take on these issues, funded by outside organizations and party committees nearly a year after the 2020 election.

An explosion of funding has created an environment where, over the past two decades, election law has transformed from a once-niche area of the law practiced by small groups of lawyers to a full-blown practice that demands dedicated groups.

According to an analysis of Federal Election Commission data, the six major party committees on both sides—the DNC, DSCC, DCCC, RNC, NRSC and NRCC—increased their spending on legal services more than 1,700% between 2008 and 2021.

Between Jan. 1, 2020, and Oct. 4, 2021, the major parties spent more than $93 million on legal services as law firms battled out pre- and post-election lawsuits and advised them on compliance issues….

Since Bush v. Gore, Big Law firms such as Perkins Coie, Jones Day, and Wiley Rein have hoovered up the majority of the legal spend from major party committees. And that spend has shot up in recent years.

For instance, in the pre- and post-election in 2008, Perkins Coie billed the major Democratic committees $2.1 million for legal services and administrative fees. During the same period of 2016, the Seattle-based firm billed $8.6 million. But in the lead-up to and aftermath of the 2020 election, Perkins billed $52 million.

Similarly, Jones Day billed the major Republican committees $2.4 million in the 2016 election cycle compared to $6.3 million in the most recent one. Wiley Rein’s legal bills to Republican committees increased elevenfold in the last two election cycles.

The 2016 election in particular opened the funding floodgates for election lawyers, Pildes said.

“After the 2016 election, there was a tremendous outpouring of funding to support both groups that do work on election issues and election litigation and funding for, for example, Marc Elias on the DNC side,” he said. “You have more organizations focused on these issues, they have a lot more resources. For private law firms there’s a lot more money available and an incentive to litigate lots of issues in this space.”

But more recently, specialized firms staffed by top ex-Big Law and government lawyers, such as Consovoy McCarthy and the Constitutional Litigation and Advocacy Group, have billed millions to the same committees.

Former Perkins Coie election law chairman Marc Elias created among the biggest specialized firms to enter the market when he departed Perkins in September to form the Elias Law Group, which includes 10 other former Perkins political law group partners.

In a recent interview with Law360, Elias Law Group partner Elisabeth Frost said the practice’s increasing profile and partisan stature during the 2020 election cycle contributed to the split.

“We became more and more public-facing on our views about this stuff,” said Frost in the article. “And it just became clear that we needed the space, and it was time to spin off.”

The State Democracy Research Initiative at the University of Wisconsin Law School will be hosting a virtual kickoff event this Thursday, October 7, 2021, from 5-6pm CT. Please join us for a free, livestreamed panel discussion to hear current and former state solicitors general share perspectives on state government and state cases of interest. Confirmed speakers include Amit Agarwal (Former Solicitor General, Florida), Elizabeth “Bessie” Dewar (State Solicitor, Massachusetts), Michael Mongan (Solicitor General, California), and Ryan Park (Solicitor General, North Carolina). Registration is available here, and additional information can be found on the event website.