PHOENIX — After a lopsided string of court victories knocking down state voting restrictions, Democratic superlawyer Marc E. Elias was literally flying high last week in his pursuit of other Republican-initiated voting laws he says hurt his party’s most loyal constituencies.
First up was the battleground of Ohio, where Elias told a federal appeals court that the state had unlawfully cut a few days of early voting disproportionately used by African Americans.
Less than 24 hours later, the lawyer whose firm counts Hillary Clinton and the Democratic National Committee among its clients was in a federal courtroom 1,600 miles away. He charged that Arizona’s new law regarding the handling of absentee ballots was an unconstitutional effort to discourage Latino and Native American voters as well as those who assist them.
Elias, a go-to lawyer for Democrats in recount fights and redistricting battles, has now taken a prominent and somewhat controversial place among the coalition of groups challenging a wave of state election laws that were rewritten in recent years.
With a multimillion-dollar commitment from liberal mega-donor George Soros, Elias is challenging laws that, he argues, diminish the impact of important Democratic Party constituencies of African Americans, Latinos and young people.
“I don’t think people should think we’re done filing lawsuits for this election cycle,” Elias said in a taxicab interview after two flights and a two-hour weather delay delivered him to Phoenix.
It has been a heady few weeks for those challenging voting-law changes passed by Republican legislatures. Judges have either blocked or softened restrictions adopted in Texas, North Carolina, Wisconsin, Michigan, North Dakota and Kansas.
Those are among the 15 states that would have new and stricter laws in place for the coming presidential election, according to the Brennan Center for Justice. The states say they are seeking to combat voter fraud and protect confidence in the electoral process.
But in the past month, a long list of judges, appointed by both Democrats and Republicans, have found the threat either negligible or nonexistent. Instead, the judges said, there is evidence that the laws hinder minority participation in the process.
Wisconsin’s experience, for instance, “demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement,” wrote U.S. District Judge James D. Peterson last month.
But North Carolina Gov. Pat McCrory (R) is asking the Supreme Court to review the appeals court ruling that said his state’s election-law overhaul was aimed at discouraging minority turnout, not protecting against fraud.
“Citing limited cases of recorded voter fraud begs the question: If your house has never been broken into, do you still lock the door?” McCrory wrote in a USA Today op-ed.
The legal battles against voting restrictions continue to be led by civil rights groups, such as the American Civil Liberties Union, the NAACP Legal Defense and Educational Fund, Advancement Project and others.
But Elias’s efforts explicitly on behalf of Democrats have made 2016 different. Besides joining the efforts of civil rights groups in several states, he has also struck out on his own, bringing additional claims in states that are especially important for Hillary Clinton’s campaign and future Democratic candidates. These include Ohio, Arizona and Virginia.
Some who have worked on voting issues for years are wary of the optics. “I love Marc, but I want to be very clear about who we are and who he represents,” said Sherrilyn Ifill, president and general counsel of the NAACP LDF. “I don’t want what we have been doing for years [protecting minority voting rights] to be dismissed as partisan.”
She adds that as a civil rights lawyer, “I sued plenty of Democrats.”
Elias joined civil rights groups in some cases but said he also filed lawsuits in places where a favorable ruling will help the Democratic Party.
“We’re challenging the laws in the states in which we have the greatest concern,” he said. “Regardless of who the plaintiff is, protecting civil rights ought to be something that we all strive to do.”
Elias said he understands that civil rights groups fear that his involvement hinders their hope for bipartisan support for voting rights — for instance, strengthening the Voting Rights Act.
But he notes it has been three years since the Supreme Court struck down a key part of the law that required some states, mainly in the South, to get federal approval for changes to voting laws to make sure they did not harm minority voters. Republican leaders in Congress have done nothing to come up with standards that could lead to renewed federal oversight, he said.
“The way to reauthorize the Voting Rights Act is to make Nancy Pelosi the speaker of the House and Chuck Schumer the [Senate] majority leader and put Hillary Clinton in the White House,” he said.
Even if anyone tried, there would be no way to separate Elias the voting rights lawyer from Elias the political lawyer. Asked about the clients he and his colleagues at the law firm of Perkins Coie represent, Elias replies: “We represent the DNC, the DSCC, the DCCC, the DGA, the DLCC, House Majority PAC, Senate Majority PAC, Priorities USA, Emily’s List, 40-plus Democratic senators, 100-plus Democratic House members.”
Translation in outside-the-Beltway English: the national Democratic Party, its governors, almost all of its members of Congress and its campaign and fundraising apparatus. And its presidential nominee.
Elias came to Washington as a new lawyer in 1993, when he said there was really no such thing as “political law.” The 2000 presidential recount in Florida and the McCain-Feingold campaign finance act of 2002 changed that.
Elias’s personal breakthrough came when he represented Al Franken in the recount of the 2008 Minnesota Senate race. It was the longest recount in history — eight months — and resulted in a 312-vote win for Franken. Since then, Elias has been the go-to lawyer for a string of Democrats in recounts and has never lost.
He is also a major player in campaign-finance law and redistricting disputes. He won at the Supreme Court last term when the justices upheld a court-imposed remapping of congressional districts in Virginia that could produce a second African American congressman from that state.
But Elias’s entrance into voting rights protection is something new. While Elias will not discuss the funding for his project, Soros’s spokesman Michael Vachon said Elias approached them with a set of proposals for challenging state restrictions that would be helpful “up and down the ballot.”
That was appealing to Soros, who began his political giving with voter mobilization efforts, Vachon said. And they agreed with Elias that there was work to be done beyond what the civil rights groups, to which Soros also contributes, were doing.
“The other groups have to be nonpartisan,” Vachon said. “We agreed there was a need to look at this from a partisan viewpoint.”
Soros has given $5 million to the trust that funds the litigation, Vachon said, and Elias said he has picked his shots with an eye toward “protecting the Obama coalition” of African Americans, Latinos and young people.
In Ohio, Elias challenged the state’s elimination of the “Golden Week,” a period of a few days before an election in which voters can both register and cast their ballots at the same time.
Elias won the first round. After a trial in federal district court, Judge Michael Watson, nominated to the court by President George W. Bush, said the elimination of the period was a minor burden on voters but one that disproportionately affected African Americans.
Watson said the law violated constitutional equal protections and the Voting Rights Act because the Republican legislature’s reasons for doing away with the Golden Week did not justify the action.
On appeal, Ohio Solicitor General Eric Murphy told a three-judge panel of the U.S. Court of Appeals for the 6th Circuit that Ohio has one of the most generous early voting periods in the nation, while some states offer none at all.
But Elias told the court that it didn’t matter. The issue, he said, “is what will the change do to burden minority voters in Ohio.” The judges said they would rule on the appeal soon.
Likewise in Arizona, Elias told U.S. District Judge Douglas L. Rayes that a new law making it a felony for anyone other than the voter or a family member or caregiver to turn in an absentee ballot was suspect.
The law upends a common Democratic practice of gathering ballots in minority communities or on reservations, and there has never been evidence that it has led to fraud, Elias said.
Sara J. Agne, representing the state Republican Party, said the legislature did not have to wait for fraud in order to take precautions. She noted that more than half of the states have restrictions on who can handle absentee ballots.
Rayes said he would rule before next week, when the law is scheduled to take effect.
Elias will be back in Phoenix next month anyway. He is challenging cuts in the number of polling places that led to long lines and the turning away of some voters during the state’s presidential primaries in March.
Early on, longtime voting rights activists worried that in Elias’s zeal for helping Democrats in 2016, he would file suits that would later come back to haunt them.
“Some in the voting rights community expressed concern when he came into these voting cases that he could establish some bad precedent,” said Richard Hasen, a professor at the University of California at Irvine, whose Election Law Blog serves as something of a bulletin board for election lawyers. “He’s done well so far, however, and with the changing balance of power on the courts, he may well have continuing success in at least some of his cases.”
Elias heard the criticism too.
“All I can tell you is we sued in Virginia and we got a consent decree on long lines” at the polls, he said. “We sued in North Carolina and obviously that’s worked out. We’ve sued in Wisconsin and we’ve won in the district court. We sued in Ohio and won before the district court and now have the argument in the 6th Circuit.”
He paused. “So those who were concerned we were going to make bad law so far don’t have much to point to. We’ve made a lot of good law.”