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.
The University of Wisconsin Law School is delighted to announce the launch of the State Democracy Research Initiative, co-directed by Professors Miriam Seifter and Robert Yablon. The Initiative will shine a spotlight on state democratic processes and institutions, which traditionally receive less attention from legal scholars and educators than those at the federal level. It will also serve as a resource on state-level governance issues for academics, policymakers, and advocates across the country. You can follow the Initiative on Twitter at @UWLawDemocracy, and save the date for a live hybrid kickoff event on Thursday, October 7, 2021, at 5:00 pm CT (3 PT/4 MT/6 ET). Mark your calendars!
John H. Durham, the special counsel appointed by the Trump administration to scrutinize the Russia investigation, has told the Justice Department that he will ask a grand jury to indict a prominent cybersecurity lawyer on a charge of making a false statement to the F.B.I., people familiar with the matter said.
Any indictment of the lawyer — Michael Sussmann, a former federal prosecutor and now a partner at the Perkins Coie law firm, which represented the Democratic National Committee on issues related to Russia’s 2016 hacking of its servers — is likely to attract significant political attention.
Donald J. Trump and his supporters have long accused Democrats and Perkins Coie — whose political law group, a division separate from Mr. Sussmann’s, represented the party and the Hillary Clinton campaign — of seeking to stoke unfair suspicions about Mr. Trump’s purported ties to Russia.
The case against Mr. Sussmann centers on the question of whom his client was when he conveyed certain suspicions about Mr. Trump and Russia to the F.B.I. in September 2016. Among other things, investigators have examined whether Mr. Sussmann was secretly working for the Clinton campaign — which he denies.
An indictment is not a certainty: on rare occasions, grand juries decline prosecutors’ requests. But Mr. Sussmann’s lawyers, Sean M. Berkowitz and Michael S. Bosworth of Latham & Watkins, acknowledged on Wednesday that they expected him to be indicted, while denying he made any false statement….
At the meeting, Mr. Sussmann relayed data and analysis from cybersecurity researchers who thought that odd internet data might be evidence of a covert communications channel between computer servers associated with the Trump Organization and with Alfa Bank, a Kremlin-linked Russian financial institution.
The F.B.I. eventually decided those concerns had no merit. The special counsel who later took over the Russia investigation, Robert S. Mueller III, ignored the matter in his final report.
Mr. Sussmann’s lawyers have told the Justice Department that he sought the meeting because he and the cybersecurity researchers believed that The New York Times was on the verge of publishing an article about the Alfa Bank data and he wanted to give the F.B.I. a heads-up. (In fact, The Times was not ready to run that article, but published one mentioning Alfa Bank six weeks later.)
Mr. Durham has been using a grand jury to examine the Alfa Bank episode and appeared to be hunting for any evidence that the data had been cherry-picked or the analysis of it knowingly skewed, The New Yorker and other outlets have reported. To date, there has been no public sign that he has found any such evidence.
But Mr. Durham did apparently find an inconsistency: Mr. Baker, the former F.B.I. lawyer, is said to have told investigators that he recalled Mr. Sussmann saying that he was not meeting him on behalf of any client. But in a deposition before Congress in 2017, Mr. Sussmann testified that he sought the meeting on behalf of an unnamed client who was a cybersecurity expert and had helped analyze the data.
Moreover, internal billing records Mr. Durham is said to have obtained from Perkins Coie are said to show that when Mr. Sussmann logged certain hours as working on the Alfa Bank matter — though not the meeting with Mr. Baker — he billed the time to Mrs. Clinton’s 2016 campaign.
Another partner at Perkins Coie, Marc Elias, was then serving as the general counsel for the Clinton campaign. Mr. Elias, who did not respond to inquiries, left Perkins Coie last month.
In their attempt to head off any indictment, Mr. Sussmann’s lawyers are said to have insisted that their client was representing the cybersecurity expert he mentioned to Congress and was not there on behalf of or at the direction of the Clinton campaign.
They are also said to have argued that the billing records are misleading because Mr. Sussmann was not charging his client for work on the Alfa Bank matter, but needed to show internally that he was working on something. He was discussing the matter with Mr. Elias and the campaign paid a flat monthly retainer to the firm, so Mr. Sussmann’s hours did not result in any additional charges, they said.
Penalties and discipline against a dozen attorneys over Trump-fueled election challenges probably won’t discourage similar fraud suits in the future, legal experts say.
Lawyers behind dismissed cases in several states have been cited for violating professional standards requiring candor in the courtroom and barring the filing of suits not backed up by fact or law.
The repudiation of the “unsubstantiated claims was a reassuring validation of the rules as courts have historically applied them,” said Charles Geyh, a legal and judicial ethics professor at Indiana University’s Maurer School of Law.
Courts rose to the occasion, Geyh said, but the discipline might not be enough to stop lawyers from being involved in similar challenges in the future.
No one’s been disbarred yet despite calls from some for severe discipline, especially after the Jan. 6 Capitol riot by Donald Trump supporters energized by his claims of a stolen election. Sanctions range from a temporary license suspension for Rudy Giuliani to sharply worded judicial dressing downs and orders to pay court costs and other fees.
Josh Douglas in the Washington Monthly.
Attorneys behind some of the dubious litigation over former President Trump’s 2020 election loss were sanctioned this week by a federal judge in a move that was welcomed by legal ethics experts.
More disciplinary steps are needed to deter efforts to undermine future U.S. elections, said experts who spoke to The Hill, adding that the system for holding pro-Trump election lawyers to account was working as it should.
Huge election law biz news.
You can download it at this link.
Elise Spenner is a great interviewer. Read the interview here.
This weekend I tangled with some folks on Twitter because I had the temerity to tweet “Read this @Slate” with a link to Nicholas Wallace’s piece urging a boycott of the Federalist Society because it has not taken any actions to remove those in leadership positions who supporting Trump’s attempt to steal the election in 2020 or the violent insurrection in the Capitol.
I asked why the Federalist Society in particular did not disavow John Eastman, the former Chapman professor who represented Trump in his legally and factually frivolous and dangerous lawsuits to try to overturn the results of the election and who appeared at the Jan. 6 rally just before the insurrection. When the response I got was the the Federalist Society cannot police its members for orthodoxy, I wrote, “So what? There are some things beyond the pale and deserving condemnation. If @fedsoc had in leadership a Nazi sympathizer, you would rightly demand condemnation or quit.”
After writing this, someone sent me a direct message asking if I confirmed that John Eastman was still in a leadership position at FedSoc. (He was chair of the Federalism and Separation of Powers Practice Group—some apologists responding on Twitter tried to say this is not “really” a leadership position but it seems pretty prominent to me.) I had not heard that there had been a change in Eastman’s status, but there’s been an interesting change to his profile. Here’s how his profile read as recently as this March:
And here is how his profile reads now:
Was he removed, following controversy over how to treat people like him within FedSoc? Or are they just trying to hide his involvement in a leadership role, while still listing him as a contributor?
I understand from the person who contacted me that FedSoc used to list the leaders of these practice groups on the website, but I can find no such list now.
If FedSoc did the right thing, one would hope they would take credit for it, rather than making the change in the middle of the night. Inquiring minds want to know.
Thanks to Rick for inviting me to blog for the past two weeks. There’s never a dull moment in the world of election law, and it’s helped me catch up on the many things I missed during my first year as Dean of University of Wisconsin Law School. My friend and colleague Ned Foley at Ohio State will be taking over for the next two weeks, from July 19 through August 1. You can send links and suggestions to him.
From Section Chair Michael Morley:
Dear Colleagues of the Section on Election Law,
I hope you have been doing well this summer! Especially since so many professors still must restrict their travel due to COVID, we thought it would be nice to hold a virtual Election Law Section social event. We can take some time to unwind, talk about the recent Supreme Court cases and pending federal and state legislation concerning elections, discuss the projects we’ve been working on, and most importantly just catch up and re-connect with each other. If you think any of your colleagues might be interested in participating, as well, please encourage them to join the Election Law Section.
Date & Time: Thursday, August 5, 2021, 3:00 PM EST
I hope you’re able to join us for a causal summer chat, and am looking forward to seeing you all, if only virtually!
Michael T. Morley
Assistant Professor of Law
Florida State University College of Law
Chair, AALS Section on Election Law
Au revoir Pam. We in the election law community will miss you.