Marc Elias is infamous for using outlandish and racist legal arguments to contest GOP election victories and change election laws to benefit Democrats.
Elias is infamous for using outlandish and racist legal arguments to contest GOP election victories and change election laws to benefit Democrats.
I t shouldn’t surprise anyone that Terry McAuliffe, the Democratic candidate for Virginia governor and once the top fundraiser for the Clintons, would turn in desperation to Hillary Clinton’s campaign lawyer to possibly contest next Tuesday’s election.
Marc Elias is the legal mastermind most responsible for the left-wing push to subvert our democracy, overturn elections, and destroy election integrity. Jonathan Turley, a constitutional-law professor at George Washington University, tweeted last week, “There are a host of election lawyers but McAuliffe selected an attorney accused of lying to the media, advancing rejected conspiracy theories, and currently involved in a major federal investigation that has already led to the indictment of his former partner.” Last year, Elias was also sanctioned for misconduct in an election case by the Fifth Circuit Court of Appeals.
It’s no wonder that McAuliffe’s campaign spokesman acknowledged in an email mistakenly sent to a Fox News reporter that she was trying to “kill” the story about the campaign’s spending $53,680 to hire Elias, a lawyer known for masterminding legal challenges to election results.
Elias is just about the most controversial gun-for-hire you could find among the panoply of Washington election lawyers. He figures prominently in the Justice Department’s investigation led by prosecutor John Durham. His former law partner Michael Sussmann at the firm of Perkins Coie was recently indicted by Durham on charges that he lied to the FBI.
Two New York Times reporters have written that Elias lied to them for more than a year about the fact that he paid for a dossier compiled by British spy Christopher Steele, claiming that the Trump campaign colluded with the Russian government to manufacture a Trump victory in the 2016 presidential campaign. This hoax consumed the time and resources of the Trump administration for years as they fought the false charges and as a special-counsel investigation was used by the FBI to obtain four Foreign Intelligence Surveillance Act warrants.
Elias seems to have a monopoly on the Democratic election-lawsuit machine. Democrats go to him and his law firm for representation, and the media treat him like a hero, in sharp contrast to their attacks on those who support election integrity. The New York Times calls him the “Democrats’ lead lawyer” and the “most influential of unelected Democrats in Washington.” His former law firm Perkins Coie has billed over $170 million to Democratic campaigns, committees, and candidates in the past decade.
Elias has spent his career flying around the country targeting competitive states with lawsuits intended to rewrite election laws for partisan gain.
This year, he unsuccessfully fought to overturn the certified results of a congressional race in Iowa. Just last week, in Virginia, Elias sued the United States Postal Service on behalf of the Democratic Party, demanding a rewrite of its rules and procedures for handling mail-in ballots.
McAuliffe must explain why he hired a disgraced partisan lawyer with deep ties to left-wing dark-money interests and a history of undermining the fairness and security of elections. When McAuliffe recently peddled the lie that Brian Kemp stole his victory in Georgia’s 2018 gubernatorial election and that Stacey Abrams should be the governor there, Jason Snead, the executive director of the Honest Elections Project, countered, “Virginians deserve to know whether he will accept the will of voters. Using litigation as a weapon to skew election laws for partisan gain is outrageous. Voters, not lawyers, should decide our elections.”
As Hillary Clinton’s 2016 campaign lawyer, Elias was also accused of rigging the 2016 Democratic presidential primaries to thwart Bernie Sanders and facilitate a deluge of big money into politics. He engineered a “memorandum of understanding” in 2015 in which the Democratic National Committee essentially handed over its operation to the Clinton campaign for the 2016 election. Being the lawyer for both the party and one of the campaigns raises serious legal and ethical concerns and is generally not allowed.
Donna Brazile, who served as the interim chair of the DNC during the fall 2016 campaign, defended the arrangement as “not illegal,” but that was far from clear. At a minimum, the DNC and the political campaign would have to execute what are called conflict waivers, acknowledging that they are aware that the lawyer is representing entities with conflicting interests and agreeing to the representation, though some conflicts can never be waived. This cozy arrangement may have been just one of the many reasons that candidate Kamala Harris hired Elias to be her presidential campaign’s general counsel in 2019.
It was Elias who engineered the legal campaign that plagued the 2020 elections. During the COVID pandemic, he filed most of the lawsuits that resulted in courts’ and election bureaucrats’ suspending the election-related statutes that had previously been signed into law by state legislatures and signed by governors.
His anti-democratic strategy to suspend laws, circumventing the state legislatures that are the only bodies constitutionally empowered to set voting procedures, was nothing new. He has been active for years in misusing federal laws such as the Voting Rights Act to obtain partisan political objectives that have nothing whatsoever to do with preventing racial discrimination in voting. For example, he filed a meritless lawsuit in 2017 claiming that a recall effort against three state Democratic senators in Nevada violated the Voting Rights Act, even though the ability to mount recalls of state legislators and other elected officials has been a standard part of our election laws for decades.
The claim that trying to recall a state senator for misbehavior in office is a discriminatory denial of voting rights is absurd. Elias made the laughable but patronizingly racist argument in his complaint that it would be too much of a “burden” on minority voters to have to “educate themselves about the logistical details of a recall election” and that they would be “burdened by the time it takes to vote.” In the complaint, Elias also actually alleged that blacks and Hispanics were not suited to follow public issues closely enough to vote in a recall election, should there be one, because they are not “politically astute” enough. This lawsuit shows the infamous lengths to which Elias will go to twist the law to help his political party. If a Republican lawyer or candidate made such a specious and insulting argument about minority voters, he would be justly condemned as a racist.
J. Christian Adams, the attorney who opposed Elias in the Nevada recall case, told us that
his business model is to make outlandish arguments to judges who are inclined to agree with him but [to] make sure the public never hears the preposterous legal theories he pushes. Otherwise, he’d be run out of town on a rail. He makes patronizing, demeaning, ridiculous arguments about how incapable blacks are at functioning in modern America, and forum-shops for courts where someone might just believe it. That’s how he nullifies state election laws.
So, no matter how noble Elias tries to sound, his attacks on election integrity have one purpose: to help the Democrats that he represents get elected. The fact that he and his allies believe that the best way to do that is to destroy basic security protocols that states have in place to try to prevent fraud is more revealing than anything else they tell the media that fawn over their work.
If Terry McAuliffe is indeed planning to challenge the results of a close election next Tuesday, he has found just the right unscrupulous lawyer who will stop at nothing to advance his client’s interests.
Portions of this article have been adapted from the new book Our Broken Elections: How the Left Changed the Way You Vote, by John Fund and Hans A. von Spakovsky.