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.”