By Dan Roe and Dylan Jackson
Daily Business Review
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 elections 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 groups.
According to an analysis of Federal Election Commission data, the six major 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.
The top grossing firms include in Jones Day, Consovoy McCarthy, Wilmer Cutler Pickering Hale and Dorr and Perkins Coie, a longtime counsel to Democratic Party beginning with former partner Robert Bauer.
It’s worth nothing that this figure does not include outside groups such as the ACLU, NAACP, and the various organizations that funded the so-called Kraken lawsuits headed up by Trump lawyer Sidney Powell, some of which have raised millions to bring legal action.
The Stacey Abrams-founded New Georgia Project, for example, is behind a March lawsuit challenging new voting laws passed by the Georgia Legislature. The organization has retained Perkins Coie and Georgia firm Krevolin Horst, both of which received money from Democratic committees this year and last.
All told, there have been at least 50 federal and state election or voting lawsuits filed since the beginning of the year, according to Democracy Docket, an organization run by Democratic attorney Marc Elias. The figure doesn’t include all ongoing challenges by Republican interests.
Experts and elections lawyers point to the several reasons for the aggressive growth in spending and election practices.
‘US VS. THEM’
The foray into election law can be fraught with consequences that often outweigh the benefits, including reputational damage from litigating on behalf of an unpopular candidate or missing criminal law consequences in compliance work for parties and campaigns.
In the former circumstance, the public, including existing or potential clients, is often unwilling or unable to differentiate a law firm’s zealous representation of a client from political speech, said Miami election lawyer Ben Kuehne.
“There is a movement by large law firms to attempt to get into this area, but it is fraught with peril,” said Kuehne, who worked under David Bois on the Bush v. Gore recount committee. “Because this area can oftentimes be compartmentalized into Us vs. Them—whether that can be partisan or one side is opposed by the other side. Many nonpolitically involved clients do no want their law firm to take sides.”
And while many Big Law attorneys are signing up to take pro bono voting rights cases, their firms’ long-term involvement in voting right matters won’t touch touch the bottom line.
“That’s going to be the big test: Will the big firms just focus on national parties and big political committees that raise tens of millions or more?” Kuehne said. “Or will they get involved in some of the equally consequential but lower-level litigation?”
The latter work won’t earn the firm as much, if any, money, but the current demand for Big Law help is being met by firms looking pro bono opportunities.
The razor-thin margins of the 2000 election, and subsequent elections, both federal and state, have created an environment where every single vote is disputed on the ground and in the courtroom, said New York University School of Law constitutional and election law professor Rick Pildes. He added that, unlike in previous elections, both sides believe a loss is existential as the major parties continue to diverge politically and culturally.