It's not every day that a federal judge calls a lawsuit from one of the country's top lawyers a nasty and partisan "Hail Mary pass" intended to undermine free and fair elections. But that's what happened on Wednesday when U.S. District Judge Lewis Kaplan, a Clinton appointee, tossed out a lawsuit brought by Democratic superlawyer Marc Elias.
"In the 102 years since my father, then a Ukrainian refugee, came into this country, if there were two things that he drilled into my head, they were … free, open, rational elections [and] respect for the courts. The relief that I'm being asked to give today impinges, to some degree, on the public perception of both," Kaplan said of the lawsuit, which sought to preserve redistricting lines in New York state that a court had already ruled unconstitutional. "And I'm not going to do that."
It's been a rough month for Elias, the man former president Barack Obama tapped to lead his post-presidential initiative to expand "voting rights" and the Democratic Party's premier legal attack dog. Just last week, Special Counsel John Durham accused Elias, who represented Hillary Clinton's presidential campaign—and who every election cycle counts virtually every powerful Democrat as a client—of lying about his relationship with the opposition research firm he retained to assist that campaign.
In an attempt to shield communications between Fusion GPS and Rodney Joffe, a firm client hawking Russian collusion theories, Elias told Durham that he retained Fusion to support his legal work—and that, as a result, it is subject to attorney-client privilege. Durham was not having it: "The factual record and Fusion GPS's own communications raise serious questions about this depiction," he wrote
Elias's tactics are now drawing rebukes from judges, prosecutors, and even fellow Democrats, who say his hard-charging nature is hurting the party. Elias is publicly reeling. He last month scrubbed years of posts from his Twitter feed and hasn't explained why. The move comes less than a year after he decamped from the white-shoe law firm Perkins Coie to found his own law firm—ostensibly to engage "more fully" in the "political process," though some speculate the firm was increasingly uncomfortable with Elias's tactics and the scrutiny of the Durham probe. Durham indicted Elias's partner, Michael Sussman, a month after Elias left.
"Elias has virtually limitless funding and will challenge any voting law anywhere if he thinks doing so will help his party," said the Honest Elections Project's Jason Snead. "His strategy often backfires since many of the cases are weak or frivolous. Some of Elias's allies on the left criticize his strategy and judgment."
Durham's accusation is not the first time that Elias has been slammed for rank dishonesty. The Fifth U.S. Circuit Court of Appeals last year sanctioned him for "lack of candor" in a Texas election case, which Elias ferociously contests.
He has run into trouble on substance, too, blundering into a major defeat in the Supreme Court in 2021 that some critics say was entirely of his own making.
That came when Elias challenged two ordinary voting regulations in Arizona under a provision of the Voting Rights Act that protects minority political involvement. Liberals did not want the Court to rule on the scope of that provision—they feared the conservatives would interpret it narrowly and hamstring their attacks on new red-state election laws.
The scope of that provision was an open question that liberals wanted to keep out of the Supreme Court. The conservative justices have repeatedly trimmed the reach of the Voting Rights Act, and liberals feared Elias would bring about a like result, especially since the rules he challenged were common to blue and red states alike.
The Court's decision in Brnovich v. DNC played out exactly as liberals feared. Justice Samuel Alito delivered a 6-3 decision that upheld Arizona's rules, announced new limits on the Voting Rights Act challenges, and in so doing put new red-state election regulations on firmer footing. Democrats saw the ruling as an unmitigated catastrophe.
Richard Hasen, a progressive voting rights guru at the University of California Irvine, describes the case as an "overreach" and took Elias to task at his Election Law Blog, an influential forum for reporters and election lawyers.
"I get lots of messages from election lawyers and professors complaining about Marc but reluctant to voice their criticisms publicly," Hasen wrote.
A similar dynamic is underway in an Alabama redistricting case orchestrated by Elias's firm, the Elias Law Group. The group sued and argued the state ought to have two minority-majority districts rather than one. They won in a federal trial court, but the Supreme Court in February reinstated the original map, which has just one minority-majority district. The justices will hear the case in full this fall.
As in Brnovich, Elias has picked a questionable target in Alabama's map, and his zeal could bring about yet another Democratic defeat. Alabama's latest map is virtually identical to earlier iterations that the Justice Department had approved. And it's not clear that Alabama can draw two black-majority districts without making race the decisive factor, which could be illegal.
"He's taken—once again like he did in Arizona—a reach case, and is going to eventually wind up with what his side considers bad law," a Republican lawyer told the Free Beacon.
When the case is heard, Elias might not be the man to argue it in the High Court.
Durham on May 2 submitted a second filing that pushes Elias about his relationship with Fusion. It's a sure sign that the special counsel isn't letting the matter lie, and a request for sanctions could be near.
This article was originally published by The Washington Free Beacon on May 10, 2022.
