Category Archives: election law biz

“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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Marc Elias is Sometimes Counterproductive When It Comes to Protecting Voting Rights, Election Integrity, and the Interests of the Democratic Party

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.

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“Retired lawyer wrote the book, literally, on corporations entertaining politicians”

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. 

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“New Hampshire’s Top Election Official Announces Retirement”

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.

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Letter in Support of Nomination of Dale E. Ho for Federal District Court Judgeship for Southern District of New York

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.

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