Focused on voting
Marc Elias JD/MA ’93 speaks with Dean Kerry Abrams on his career in political law, staying true to his personal values, and why he’s driven to advance voting rights and reform election law.
Marc Elias JD/MA ’93 is founder of Democracy Docket and the chair of the Political Law Group of Perkins Coie in Washington. A nationally recognized authority on campaign finance, voting rights, and redistricting law and litigation, his clients include dozens of Democratic U.S. senators, governors, representatives, and their campaigns — including Joe Biden’s 2020 presidential campaign — and numerous organizations affiliated with the Democratic Party. He also served as general counsel to Hillary Clinton’s 2016 presidential campaign and to John Kerry’s presidential campaign in 2004.
As a litigator Elias has handled scores of cases involving politics, voting rights, and redistricting, and has won four cases before the Supreme Court. During the 2020 election cycle his voting rights practice brought more than 150 cases in 30 states and prevailed in more than 120. One of the leading recount and post-election attorneys in the country, Elias won the vast majority of more than 60 cases involving the counting and casting of ballots during the 2020 election on behalf of the Biden campaign and the Democratic National Committee. He spoke with James B. Duke and Benjamin N. Duke Dean Kerry Abrams on Feb. 19 as part of the Lawyers and Leaders series sponsored by the Dean’s Office. Following are excerpts from their conversation.
Kerry Abrams: How did you figure out you wanted to go into election law? It sounds like you helped invent it in some ways.
Marc Elias: I got to Washington, D.C., at the end of 1993 and in 1994 Republicans retook the U.S. House of Representatives for the first time in 40 years. People now don’t realize what a seismic shift that was. Part of the reason they did was that Newt Gingrich, who was then the agitator of the Republican Party, understood that you could use legal attacks to affect the politics of election. He understood that if you went after your opponent on their compliance with the law or ethical principles you could achieve mass electoral victories. And they flipped the House, so the Democrats who were shell-shocked by this were looking to build that sort of capacity back and I was young, cheap, aggressive, and interested in criminal law.
That was how I got connected to it and then the 1990s were a decade of one criminal investigation in politics after another. You had the various independent counsels that ranged from Whitewater to Lewinsky and in between. You had investigations on just about every cabinet secretary, all these major investigations of the Democratic Party, and so I wound up doing more and more investigating of criminal and quasi-criminal work around politics. And from there the field of political law just grew from really non-existent into a still relatively small area of law but a much larger one.
Abrams: What role did you, as a law firm lawyer, play in those investigations and what was the actual work you were doing?
Elias: I was basically taking opposition research against Republican members of Congress and turning it into complaints — complaints to the IRS, complaints to the Federal Election Commission, complaints to the House Ethics Committee. I drafted a complaint that ultimately took down Newt Gingrich over his teaching of a political science class that violated the tax rules. Political law really didn’t exist as a field and white collar criminal law was just really beginning as a standalone specialty so, as odd and bizarre as it sounds today, even as a mid-level associate in the 1990s there was just such a demand for lawyers who knew something about politics and something about criminal law.
I was doing everything from representing clients who were being interviewed by the FBI before grand jury investigations, responding to an endless series of document subpoenas. There weren’t electronic records then so a lot of it was done by hand on paper. A lot of it was drudge work but it was also a tremendous learning experience, and I learned a lot about politics along the way because when you review a lot of documents about how a fundraiser happened, you learn a lot about how fundraising happens.
Abrams: As you were developing this new area of law, who were you doing it with? Did you have a mentor?
Elias: I definitely did. One of the things I tell law students and associates is it’s important to develop both mentors and sponsors and they are two different things. My mentor was Bob Bauer, who subsequently went on to become White House counsel under Obama and now teaches law at NYU. I was Bob’s associate. It’s really important for law students to figure out who is going to help them guide their career in making decisions.
There came a point where I had to make a decision: Do I still want to do commercial litigation or white collar work that is not political in nature? Do I want to turn that work down and only focus on election and politics? Having mentors is important because they can help you guide through those decisions. Young lawyers also need to know the importance of sponsors — that person who will put their credibility on the line and promote you with a client or within a firm or an industry is super important — and those people are harder to find than the first.
Abrams: How much of your career do you attribute to pure luck — being in the right place at the right time — and making your own luck, or capitalizing on opportunities when you saw them?
Elias: I think it was both. There was definitely luck in that I happened to graduate from law school at a particular moment when a field of law was going to sort of propel forward. Had I come out of law school in 1989 instead of 1993 that trajectory would have been different.
But I do think that people need to be intentional about their careers. If you’ve set up a meeting for an informational interview or for a job, go in knowing what you want to get out of it. I’m always surprised by the number of people who will ask to talk to me for advice — and by the time we’re done they won’t have made any ask. They have just walked through the paces of the meeting and there isn’t any intentionality to it. You need to have a sense of how you are going to get from where you are to where you want to be, and what the important steps are. So I think of it as having intentionality more than making your own luck.
Abrams: How do you decide where to work and whether your work environment and the organization you choose to work for is consistent with your values? Could you represent a candidate or party if you didn’t share their political views?
Elias: For me, no. I grew up a Democrat, I was a Democrat before I did this work, and I believe in the values of the Democratic party. It’s not perfect by far, and my own views within that party are not always the views of every candidate I represent, but by and large I can comfortably say that the people I have represented have been aligned with my political values.
I don’t bring voting rights cases to make it harder for anyone to vote. All my voting rights cases are to make it easier to vote. I’ve been able to get to a place in my practice where we are able to be pretty full-throatedly just pro-voting rights. To me that’s important. I think for some students that’s very important, and for some it’s less important. If it is very important to you, this is what I mean about being intentional. By being intentional, don’t hide your head in the sand. Know what a firm does. And decide for yourself what matters: Is it what you do? Is it what the people you work with do? Or is it what the overall firm does? Those are three different sets of questions, so be honest with yourself about what compromises you are willing to make and not. We each draw these lines in different places, but you need to be comfortable.
Abrams: I want to ask about some of the high profile cases and matters that you worked on. What does it mean to be the general counsel for a presidential campaign, as you were for John Kerry and Hillary Clinton?
Elias: It’s an interesting role because presidential campaigns are sprawling operations. They have gotten much more sprawling. The Kerry campaign in 2004 raised and spent $117 million or $118 million over the course of a year. The Clinton campaign was about $1 billion, so I’m guessing the Biden campaign was at least $1.5 billion when you count the campaign itself and the ancillary organizations to the campaign. So you’re talking about a huge, dramatic increase in the amount of money in politics generally.
Think of it this way: You’re general counsel to a $1 billion dollar enterprise that has operations in 50 states, has thousands of employees, they are driving around at night after drinking way too often, they are losing laptops, they are being hacked by the Russian Federation, you’re running television advertisements that are highly critical of people so you get sued for defamation, you’re in a heavily regulated industry, you’re entering into multi-million dollar vendor agreements, you’re renting office space, and you’re entering into agreements for licensing and trademark. So being general counsel to a campaign is a lot more of being a regulatory and business lawyer that I would care to [be in], but that’s what it is.
Abrams: How well do you get to know that candidate when you’re representing the campaign?
Elias: In my practice I usually know the candidate really well because I usually have represented the candidate before. For example, I was the general counsel to Kamala Harris’s presidential campaign and I was representing her before she ran for Senate. John Kerry I had known when he was a senator. You can see a theme here. In fact, I and my firm represented eight presidential candidates in 2020, including Kamala Harris, Amy Klobuchar, Elizabeth Warren, and Cory Booker. Our model is we represent Democratic House members, senators, and governors, so when they run for president it’s unusual for us to take on a client if we haven’t had an existing relationship.
Abrams: What was your role in the 2020 election and post-election, and when did you get involved and what kind of preparation were you doing?
Elias: Post election is simple. I worked for the Biden campaign and the DNC so I was responsible for the litigation and recounts around the counting and casting of ballots, which wound up being about 60 cases or so. Pre-election, I had been litigating voting cases and voting rights cases for a while, and after the 2016 election I decided I was going to take on a greater role in the fight for voting rights, particularly around voting rights for Black, brown, and young voters who were being systemically disenfranchised. By systemically, I mean both in overt ways but also in non-overt ways — ways that were obvious and intentional and ways that were not obvious and not intentional. And I was particularly focused on the not obvious and not intentional, because I thought that was having a pernicious effect on the outcome of elections.
Abrams: What are some examples of things that are not obvious and not intentional?
Elias: The first is ballot name order. Being listed first on the ballot gives a candidate a measurable advantage. For states where they list the names based on the party of the governor, like in Florida, that can have a partisan effect of perpetuating the incumbent party. And it can also have a racial effect. For example, it turns out Asian names tend to be lower in the alphabet than anglicized names, and you can see an effect in the racial composition of some legislatures.
The second is attacking absentee ballot rejection laws. What we know from 2018 data, which is the data we were using to bring these lawsuits in 2020 is that in Florida, for example, if you were 18 to 21 the rate of rejection for mail-in ballots was 5.4%. If you were over 65 it was .6%. So one in every 20 voters 18 to 21 had their mail-in ballots thrown out, but only one in every 200 older voters [did]. If you were Black or Latinx your rate of rejection was over 2%, but if you were white it was under 1%, so there was more than a two-to-one differential based on race in whether or not the ballot you cast was going to be a ballot counted.
And there’s gender. Women had a higher rate of rejection of mail ballots than men in the Stacey Abrams race in Georgia. Why would that be? Maiden names. A woman registers under her maiden name, fills out her mail ballot, signs the back of the envelope with her married name, and the ballot gets rejected for mismatch between the two names. These things are kind of hidden in the system.
This differential between cast ballots and counted ballots became a focal point of something that I later wrote about called “the four pillars,” which became a shorthand for a kind of litigation that was very pervasive in 2020 to try to decrease the rate of rejection of mail balloting overall, but also try to flatten out the differential based on race and age and also gender.
Abrams: What about the discretion that county clerks and local election officials have over absentee ballots? Is that a problematic aspect of election administration?
Elias: I think we need reform around the way absentee ballots are handled. I wrote an article in January 2020 saying that we have an epidemic of uncounted ballots. In New York’s 22nd congressional district, where we just had this very close House race, it turned out in the course of counting ballots that Oneida County was not processing mail-in applications or registration applications because clerks got so overwhelmed they were putting them in a drawer.
The fact is, 99% of the problems we have in election administration are not the counting of fraudulent ballots. The biggest problem we have in this country is that we tolerate a lot of people getting disenfranchised because local election workers are overworked. I’ll give you another example: For everyone who talks about how wonderful the Colorado model of all vote by mail is, in 2016 Colorado rejected 12,000 absentee ballots for signature mismatch. Does anyone really believe 12,000 people fraudulently voted? Even if you think it’s more like 1,200, what happened to the other 11,000 voters? We have a system in this country where it’s simply too easy for election officials not to count votes. So I do think we need reform, but it’s a different kind of reform than what most people are talking about.
Abrams: You’ve been talking about wanting to help restore democratic norms post-2020 election. What does it mean to be pro-democracy as opposed to pro Democrat?
Elias: I created my site Democracy Docket because I thought it was important to accomplish three things. Number one, there was a lot of misinformation about cases. It is absolutely outrageous that the general public has to pay for access to cases on PACER or Westlaw. It’s a real problem that the public can’t have direct access to what it is the courts are deciding in many places.
The second is there hasn’t been a forum for people who want to focus on issues involving democracy restoration and expansion. I wanted it to be a place where Michael Bennett, the senator from Colorado, could write about voting rights, or Stacey Abrams could post a long-form piece about how Democrats won in Georgia, or Nick Stephanopoulos, a law professor who specializes in redistricting, could write something.
And the final thing is to provide accurate information to people about voting. I’m very focused for the next two to four years on trying to figure out how we move forward from a period in which our democracy is coming under rhetorical and literal attack. I think there’s a huge role for lawyers to play in that, but it’s not just going to be sitting in a big law firm. It’s going to be speaking out.
If there’s one thing I cite more than anything else, it’s the concurrence of Justice Scalia in Doe v. Reed. The question was whether or not the people who signed an anti-gay ballot initiative could shield their identity from the public. The Supreme Court said no, that signing a petition is not a private act, it’s a public act. And Scalia, writing for himself, talked about the need for civic courage and the importance of standing up and speaking out in the public square. He talked about how originally, in the colonies, all voting was in person. And I think one of the roles lawyers have to fill is they have to stand up and speak out and they have to be heard. And that’s going to mean saying uncomfortable things to people, but if you’re not willing to do that then I think you’re not meeting your core obligations as a citizen.