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Democratic Legal Activist Marc Elias Has Spent a Career Preparing for the 2020 Election Fight

Marc Elias on Rachel Maddow Show on MSNBC, June 10, 2020 (MSNBC/via YouTube)

If the 2020 election ends up a battle in the courts — as many expect — Marc Elias will be the Democratic general directing an army of left-wing lawyers in their bid to win back the Senate and take down President Donald Trump.

A native New Yorker whom Politico has described as “quick-talking” and “Twitter-savvy,” Elias is the face of election law for Democrats, an image he’s spent decades crafting.

He’s best known as Hillary Clinton’s campaign lawyer who paid for the salacious Steele Dossier in 2016, and for leading the still-controversial 2008 Minnesota Senate recount that ended with Al Franken overtaking Republican Norm Coleman — giving Democrats the 60-seat majority they needed to pass the Affordable Care Act.

He also is the architect of the 2020 Democratic legal strategy that has involved filing dozens of lawsuits across the country challenging state election laws. While his legal victories often face multiple, drawn-out challenges, his 173,000-plus Twitter followers gives him the reach to cement narratives before they’ve actually happened. His bio — “Lawyer fighting for Democrats and voting rights for all” — pits him as a man interested in politics, but not at the expense of democracy. 

Republican lawyers who have faced off against Elias describe an opponent who is smart, sophisticated, and hyper-aggressive with his litigation strategy, willing to go scorched earth if there’s a prayer of overturning an election result in his client’s favor.

But they also describe a lawyer prone to puffery, inflating the importance of his victories in the press and on social media, and then falling silent when those victories are overturned by higher courts. He paints himself as a crusader for voters, they say, but is at heart a partisan Democrat motivated to help Democrats win at any cost.

In a 2018 Tweet, Trump called Elias the Democrats’ “best Election stealing lawyer.”

In an email to National Review, Elias defended his work, saying he is focused on challenging laws “that unnecessarily restrict voting rights, particularly the rights of lawful voters to cast their ballots in the middle of a pandemic and have them counted.”

“Sadly, in every case I have been involved in, Republicans have fought to make voting harder,” he wrote.

Elias is the chair of the political law group for the progressive, Seattle-based firm Perkins Coie, which has had a stranglehold on Democratic legal work for years. Since 2019, Perkins Coie has been paid at least $41 million for its political work by Democratic-affiliated organizations, according to Federal Election Commission records. Republican lawyers say that is likely just a fraction of what Perkins Coie has received, because it doesn’t include legal work for many left-wing nonprofits.

“Marc Elias and Perkins Coie have basically monopolized the Democratic election law work,” said Justin Riemer, chief legal counsel for the Republican National Committee. “He funnels essentially all this legal work through political and non-political organizations through his firm. It’s in many ways sort of a clearinghouse for the left-wing litigation agenda.”

And it appears that Elias has taken his client’s preferences to heart. In August, Above the Law revealed a purported email from Elias that slammed a judicial decision made by a former colleague who had been appointed by President Trump to the Ninth Circuit. Elias stated that the appointment was “a source of deep embarrassment and sadness.” 

Finding Democratic votes to count

Elias first started building his reputation as a top Democratic dogfighter in 1998, when he helped former senator Harry Reid secure a recount victory and hold his Nevada Senate seat by just over 400 votes. In 2004, he was general counsel for John Kerry’s presidential campaign.

But his rise to Democratic legal stardom officially started in 2008, during the Franken-Coleman recount in Minnesota. After Election Night, Franken, the Democratic challenger, trailed Coleman, the Republican incumbent, by only 715 votes. Elias entered the fray as the battle for contested absentee ballots heated up.

Elias was on the front lines daily, delivering the latest updates in press conferences with reporters. But the line between matter-of-fact lawyering and campaign flack quickly blurred. “What Elias does not say is that the repeated sessions almost always begin with several minutes of spin from him,” Minnesota Public Radio revealed.

Coleman’s lead shrank to 215 after the first canvass, and after months of back and forth, he ended up behind by 315 votes.

“If the GOP hopes to avoid repeats, it should learn from Minnesota that modern elections don’t end when voters cast their ballots. They only end after the lawyers count them,” was the Wall Street Journal Editorial Board’s verdict.

The win cemented Elias’s strategy — overwhelm the opponent with multiple cases while simultaneously flooding the airwaves.

“Not all of those votes would have been counted without Marc’s strategy,” Eric Schultz, then a staffer for Franken’s campaign and now a high-powered Democratic operative, admitted to The Hill in 2018.

Hans von Spakovsky, a senior legal fellow at the Heritage Foundation and manager of Heritage’s election-law reform initiative, said the model Elias developed during the 2008 Franken-Coleman race involves using technology to track rejected and provisional ballots, and then fighting hard to get those ballots counted in heavily Democratic counties.

“Marc Elias came in with a huge team of lawyers and totally out-lawyered and out-technologied Norm Coleman and his lawyers,” von Spakovsky said. He explained that while Coleman’s lawyers tracked votes with pens and notepads, Elias had his team on the ground with “modern technology,” including scanners, which they used to send ballots into the Cloud, where Elias could track individual votes in real time. 

It has not always been smooth sailing, however. Elias tried and failed in Florida’s 2018 Senate race, after being tapped to head the charge for then-Senator Bill Nelson’s post-election challenge to Republian Rick Scott, who emerged post-Election Day with a lead of over 10,000 votes. Even after a federal district court judge tossed one of Elias’ challenges, he insisted to reporters that the fight was not over.

“It’s never been our view that there is going to be one silver bullet that was going to change the margin in this race,” Elias said. “If you look at each stage where the margin has shrunk, it has not shrunk because of one big thing, but rather it has shrunk from a number of smaller things.”

Nelson conceded two days later, but Elias has not missed a beat. Von Spakovsky said he expects Elias to use a similar strategy in 2020 of fighting to count rejected absentee and provisional ballots if need be.

“I suspect what they’re planning to do in any state where the election is close and there are enough outstanding or rejected absentee ballots to make the difference, you’re going to see the same kind of fight that occurred in Minnesota,” von Spakovsky said.

Elias has already been vocal about the mailed vote in 2020, an election marked by a surge in absentee and mail-in ballots due to the pandemic. Back in August, during a wave of mass hysteria that President Trump was personally directing the U.S. Postal Service to disenfranchise millions of voters, Elias was a nonstop presence on Twitter, decrying it as “just another layer of Trump’s voter suppression strategy.”

But when the New York Times reported last week that “the worst fears about the Postal Service’s ability to handle the crush of election-season mail have not materialized,” Elias completely ignored the news. He declined to comment when asked if he still believes the USPS is trying to suppress the vote.

Overturning state election laws

In addition to leading Democratic recount fights, Elias also is known for his hyper-aggressive legal battles to overturn state election laws that he claims disenfranchise voters, including voter ID and absentee ballot witness requirements, and bans on ballot harvesting, where party affiliates gather ballots from voters.

Fighting for voting rights and ensuring every ballot is counted is his “single purpose” and “the honor of my life,” according to a post Elias wrote on his Democracy Docket website.

“When we win a case, I still wonder whether we are doing enough to protect voters,” he wrote. “When we lose a case, I despair about what we could have done differently.”

Elias told National Review there is no evidence that election fraud is a significant enough factor to sway presidential elections. He said that none of the Republican legal efforts in 2020 are focused on making it easier for people to vote. It is the RNC that has announced a $20 million litigation budget “almost entirely dedicated to making voting harder,” he explained.

“It is really indisputable that the Republican party is actively trying to disenfranchise voters,” he added.

Republican lawyers say Elias’ self-righteous displays are part of a strategy to perpetuate that false disenfranchise-voter narrative. No one wants to disenfranchise millions of voters, they argue.

“With Elias, it’s not actually about the voters,” said Christopher White, senior associate counsel with the RNC. “It’s about getting this narrative going that makes him money, gets turnout juiced up, and creates chaos and the opportunity for even more litigation after the election.”

Elias has a history of challenging state election laws, but with the COVID-19 pandemic, 2020 has been a banner year for the courtroom battles. Elias maintains a list of his cases on his Democracy Docket website. As of Monday, the website listed 21 active cases in nine states.

“There have been more lawsuits filed this year before the election trying to change election rules than I’ve ever seen before, and I’ve been doing election stuff for three decades,” von Spakovsky said. “What they’ve been trying to do is take advantage of COVID-19 to get the changes they’ve wanted for years into election rules.”

Elias’ focus in 2020 has been on his so-called Four Pillars lawsuits promoting “safeguards that are necessary to prevent voter disenfranchisement”: free or prepaid postage for mail-in ballots, ensuring all ballots postmarked on or before election day must be counted, protecting voters from signature-matching requirements on absentee ballots, and legalizing ballot harvesting.

“He brings a lot of cases. He tends to be very particular about where he brings these cases, and he’ll only bring them in places where he has either a friendly state court in which he can litigate, or a district judge who is predisposed to agree with him,” Riemer said. “What that does is it guarantees him an immediate good ruling.”

The broad approach has had some victories. In North Carolina and Pennsylvania, courts have allowed elections officials to continue accepting absentee ballots for several days after Election Day. On Monday, Elias shared his delight when an appeals court rejected a Republican effort to end drive-through voting in Harris County, Texas.

But in many states Elias has prematurely declared victory — only for further court decisions to side against Democrats, with no correction of the record from the super lawyer.

Across late September and early October, Elias used such tactics in cases involving Georgia, Iowa, Michigan, and Wisconsin.

 

But when all four cases were challenged by Republicans and overturned by higher state and federal courts, Elias simply moved on. Democracy Docket links that detailed the initial wins were quietly scrubbed.

That was also the case in South Carolina, where the Supreme Court reinstated a state requirement that residents voting by mail have a witness sign their ballot, and in Wisconsin where the court refused to extend the deadline for election officials to receive and count ballots.

Elias acknowledged that he provides a lot of information about voting rights cases that he and his allies bring. It’s important to keep people informed, he said.

Elias said his strategy is simply “to provide accurate information to the public about voting and voting rights.”

He denied venue shopping.

“We file in the courts with appropriate jurisdiction to hear the case,” he wrote. “I don’t believe we have ever been subject to a change-of-venue motion, much less a successful one.”

Elias says he’s won more than he’s lost and “more than I expected.” 

Republican lawyers counter that when taken together, Elias’ state election lawsuits have not been particularly successful in 2020.

“He did get one big thing,” von Spakovsky said. “The legal fees he’s been collecting will probably make him a multimillionaire.” 

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