Election Lawyers

Volume 8 • Issue 2 • January/February 2022
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Firm Believers

Election law practices at law firms are growing

The 2020 election was the most expensive the U.S. has ever hosted, costing $14.4 billion according to OpenSecrets’ analysis of Federal Election Commission data. Election spending ends up split between a variety of needs, including advertising, staffing, organizing, and more. A growing percentage of this money is also spent on law firm services. During election years, unsurprisingly, much of this spend centers on pre- and post-election litigation—think cases around mail-in voting eligibility and receipt deadlines during the pandemic. In off-cycle years, this money most frequently goes toward redistricting efforts, challenges to laws expanding or restricting access to voting, campaign finance, lobbying, corporate compliance, and more. A recent article in American Lawyer, “How Election Law Grew from a Niche Practice to a Multimillion-Dollar Draw,” crunched the data further: “According to an analysis of Federal Election Commission data, the six major party 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.” This spending, the article states, accounts just for law firms alone, where election law and political law practices are burgeoning. Jones Day, Consovoy McCarthy, Wilmer Cutler, and Perkins Coie grossed the most revenue, according to American Lawyer. Indeed, in the 2020 presidential election alone, Perkins Coie’s political law group billed major Democratic committees $52 million.

Barchart that describes "Legal Services Spend of the Six Major Party Committees." It shows that in 2008, the total was $2,610,898; in 2009, it was $2,338,447; in 2016; it wa $13,087,517; in 2017, it was $5,111,626; in 2020, it was $61,182,781 and in 2021, it was $31,152,415. The graphic has an ALM logo on on it and says that it was designed by Chris Nicholls / ALM.

Credit: American Lawyer Media. Visit “How Election Law Grew from a Niche Practice to a Multimillion-Dollar Draw” for more.

In the lead story of this issue, Ruth Greenwood, founding director of the Harvard Law School Election Law Clinic, argues that clinics focused on election law are increasingly necessary to produce lawyers who can hit the ground running on day one, whether at a law firm, public-interest organization, the government, or elsewhere. In this story, we shine the focus specifically on election lawyers at law firms, where election law and political law practices have existed since at least the 1980s and have been expanding ever since. Who are these lawyers? What does election law practice look like? How do they do their jobs? While there are a number of well-known nonprofits focused on election law issues—think the ACLU or Stacy Abrams’ Fair Fight—law firm practices, many of whom partner with other advocacy groups, are essential to the processes that undergird U.S. democracy. In this story, we talk with partners at Jenner & Block LLP and the newly formed boutique Elias Law Group LLP to understand more deeply what election law practice at firms looks like, what challenges such practice groups face, and what the future holds for this kind of work.

Election law at large law firms: Jenner & Block

The year 2000 is largely acknowledged for being a watershed point in election law history. In 2010, Richard Hasan, Chancellor’s Professor of Law and Political Science at the University of California, Irvine, wrote in Slate that “hyperpartisan controversy” became the norm after 2000. He continues:

Before 2000, candidates and the public were both quick to accept official election results even in close elections. Bush v. Gore taught political operatives and everyone else that there are significant problems in how we administer our elections and that when contests are close enough to be within the margin of litigation, it makes sense to fight on rather than to concede. The battle in the courts (and the press) can focus on whatever legal tool is at hand: a suit over treatment of overseas ballots, polling-place errors, mismatched signatures between registration cards and absentee ballots, votes for the “Lizard People,” or allegations of fraud. Since Bush v. Gore, the number of lawsuits brought over election issues has more than doubled. [For more current numbers on litigation around election issues, see Democracy Docket.]

In 2000, Jessica Ring Amunson was about five years out of college. Before embarking on law school, she was working in local politics, helping run a campaign for Mabel Teng, an incumbent on the San Francisco Board of Supervisors running for reelection. “San Francisco was transitioning from at-large elections to district elections, and my candidate was an Asian American woman who was districted out of one of the heavily Asian neighborhoods in San Francisco,” says Amunson. She continues:

The election ended in a recount. I had this surreal experience of being in the basement of San Francisco City Hall monitoring a recount while, of course, there was another recount going on in Palm Beach, Florida. We ended up not prevailing in our election, losing by less than 50 votes. I had always been interested in government and politics, but that experience really brought home to me how important the mechanics of elections and districting are.

Shortly after this loss, Amunson arrived at Harvard Law School focused on election law. Critical mentors furthered her down the path. It was Heather Gerken, now dean of Yale Law School, who was teaching the Law of Democracy course at HLS at the time, who suggested she explore Jenner & Block, where Gerken had once worked. In that same class, Sam Hirsch, who had founded Jenner’s election law practice in the 1990s, gave a guest lecture. A formative first summer at Jenner working on the Supreme Court case around partisan gerrymandering in Pennsylvania, Vieth v. Jubelirer, eventually resulted in Justice John Paul Stevens’ citing Amunson’s student note on the case in his dissent. After clerking and then doing a fellowship at the Lawyers’ Committee for Civil Rights Under Law in their Election Protection Program, she returned to Jenner. Now more than 20 years after she helped run Teng’s campaign in San Francisco, Amunson is now a partner at the firm, also serving as the chair of the Election Law and Redistricting practice group. Hirsch, still a mentor, helps Amunson run the practice group he founded.

Jenner & Block’s practice reflects a growing trend among some major law firms in housing—and advertising—election and political law practice groups.

While working in election law was part of the plan, doing so at a large corporate law firm was not, Amunson admits. “I always thought I’d spend a few years at a law firm and then go work at a voting rights organization. But I found I was already doing the kind of work that I would want to be doing at a voting rights organization. And I was getting to work with a lot of the organizations that I otherwise would’ve been interested in going to, so all these years later, I find myself still at Jenner & Block,” she says.

Jenner & Block’s practice reflects a growing trend among some major law firms in housing—and advertising—election and political law practice groups. Other major firms with specifically listed and advertised election law–related practices include Perkins Coie (see more on this firm below), Jones Day, Holland & Knight, Ballard Spahr, Steptoe & Johnson, Skadden, and Covington & Burling (who acted as outside counsel for Biden’s 2019 presidential campaign). At the same time, Jenner uniquely positions itself by titling its practice group Election Law and Redistricting and advertising that they “have been involved in a wide variety of landmark election law and redistricting cases” over the last two decades and that the “complexity of election law and the ramifications of redistricting efforts at the federal, state, and local levels have resulted in the advent of a small, but effective contingent of practitioners [at the firm] who are truly qualified in these areas.” The election law group has 11 designated attorneys but at times will borrow attorneys from other specialties to stay on top of the workload, such as in December 2021, when Jenner was enmeshed in the once-a-decade redistricting cycle. (By comparison, Perkins Coie has around 20 lawyers associated, not all full-time, with their political law group; Skadden around eight; and Covington around 29.)

While Jenner focuses on elections and redistricting, other firms work more discretely with corporate clients around compliance and lobbying. For instance, Covington notes that they “regularly advise numerous Fortune 50 and Fortune 500 corporations, trade associations, financial institutions, political party committees, PACs, candidates, lobbying firms, and high net-worth individuals concerning compliance with the increasingly complex array of laws governing the political process” and that they are recognized for their expertise in “pay to play” laws that restrict political contributions by government contractors.

“I’ve spent many years dedicated to and trying to protect the right to vote, so being able to actually argue in defense of the Voting Rights Act in front of the Supreme Court was a real honor,” says Jessica Amunson.

It is worth noting that while less than a quarter of the AmLaw 100 law firms in 2021 specifically list an “election” or “political” law-related practice on their main websites, likely many more engage in election- and political-related work (for example, around FEC compliance or election-related litigation) with such work subsumed under broader practice area designations, including pro bono litigation. As a case in point, while Paul, Weiss does not list election law as a specific focus, the firm, and in particular its chairman, Brad Karp, has been active in this space (for more on Karp, see “Speaking Out on Election Integrity“).

For Amunson, the core of her group’s work relates to representing clients, who are typically elected officials, election or redistricting commissions, party committees, nonprofits, and voters in cases involving redistricting, voting rights, and campaign finance before state and federal courts and congressional bodies. It is therefore helpful that Amunson is also cochair of the Appellate and Supreme Court practice group, a role that frequently proves fortuitous—election litigation can be a length endeavor, more often than not, moving up through the courts. This was the case recently in Brnovich v. Democratic National Committee, where Jenner represented Katie Hobbs, the Arizona secretary of state. The case involved two Arizona election policies—restricting ballot collection and refusing to count out-of-precinct ballots—that the DNC argued disproportionately impacted the ability of certain protected minorities to vote. Hobbs had refused to enforce such policies. While the Ninth Circuit had ruled that the policies violated section two of the Voting Rights Act of 1965, the Arizona Republican Party and the state attorney general, Mark Brnovich, had appealed the decision to the Supreme Court. Amunson’s experience arguing in this case was quite different from the first time she had argued in front of the court; this time, she was in her basement over the phone. The court was operating remotely. Still, she identifies that moment as incredibly moving. “I’ve spent many years dedicated to and trying to protect the right to vote, so being able to actually argue in defense of the Voting Rights Act in front of the Supreme Court was a real honor,” she says.

When Amunson looks to grow the practice group, she looks for people who represent the firm’s values. That’s excellence and collaboration and collegiality, but it’s also: “We care a lot about justice and making sure that we are on the right side of history in terms of the fight for the right to vote and the fight against voter suppression and election sabotage issues,” she says.

A boutique election practice: Elias Law Group LLP

In August 2021, Marc Elias, a giant in the field of election law, announced the departure of most of the political law group’s attorneys from Perkins Coie—one of the leading election law practices in the country—to start a new law firm focused on voting rights. (Robert Bauer, White House counsel under Barack Obama, started Perkins’ political law practice in 1980.) He was joined by 13 partners and 36 associates. Five hundred clients had already signed with the newly formed Elias Law Group, the press release announcing the firm’s inception stated. In the four months since its inception, the firm has grown to 66 lawyers and is the largest voting rights and political law private practice in the country.

Tweet from Marc E. Elias on Aug. 22, 2021 saying: I spent 28 years at @PerkinsCoieLLP . It is a amazing place with great lawyers. I am starting a new law firm @EliasLawGroup because our democracy is at risk and it is the most effective way for me to fight back. I look forward to working with Perkins in that effort as well.

Tweet from Marc Elias on Aug. 22, 2021 announcing the new Elias Law Group.

Marc Elias has previously been called a “super lawyer” for the Democratic Party—he served as general counsel for Hillary Clinton’s 2016 campaign and John Kerry’s 2004 campaign. While corporate law firms with political law practices typically do not state partisan affiliations, Elias Law Group has made clear that it is a mission-driven law firm “focused on representing the Democratic Party, Democratic campaigns, nonprofit organizations, and individuals committed to advancing and protecting civil rights.” Partner Lis Frost attributed the split from Perkins Coie to the group’s increasing tendency toward “public-facing” views. (It should be noted that Perkins still maintains its own political law group focusing on political law advice for corporate clients.)

When Abha Khanna arrived at Perkins Coie as a new associate in 2010, the firm’s political law group was just beginning to take on redistricting cases. Over the course of the next decade, the political law practice group, headed by Elias, would grow considerably. Khanna was there as it was just ramping up, allowing her to gain deep expertise and experience that might not have otherwise been available to a junior associate. It was at Perkins where Khanna began to see how transformative impact litigation could be for these cases. In 2014, for instance, Khanna was part of a team at Perkins that partnered with the ACLU of Washington to challenge Yakima’s city council election system on behalf of Latino voters under the Voting Rights Act. “This was a case where I was doing everything from bread-and-butter discovery to taking depositions to arguing summary judgment,” Khanna says.

“As the practice area grew and we become more mission-oriented for our clients and for minority and progressive voters, it became much more of a square peg/round hole,” says Abha Khanna.

In the end, the team won the case on summary judgment and then succeeded in installing a new redistricting plan. “In the history of the city of Yakima, not a single Latinx person had ever been elected to city council,” says Khanna. “In the first year after we won the case, three Latinas were elected to city council. On election day, when we saw the fruits of our labor and the joy expanding throughout the community, we thought, ‘Wow, we are actually making a tangible difference. We are actually making room for others to have a seat at the table.’” It was an important moment for Khanna both professionally and personally, but it was important, likewise, as a proof of concept and precedent. The political law group would go on to litigate over a dozen redistricting cases over the course of the decade, including four that went all the way to the U.S. Supreme Court and several that resulted in new opportunity districts for minority and progressive voters.

A decade later, Khanna is again in the midst of the redistricting cycle, this time as a partner at Elias Law Group. She says of the departure from Perkins Coie:

As the practice area grew and we become more mission-oriented for our clients and for minority and progressive voters, it became much more of a square peg/round hole. In the big law environment, which is driven by corporate clients, we would often butt up against conflicts. We also just got big enough to be able to fuel a law firm on this work alone, both in litigation and on the political law side, that it made sense create our own thing. We would no longer have to try to explain how we are both a big law firm and a defender of voting rights and progressive causes.

Elias Law Group hit the ground running on day one—many of its lawyers had worked together for years and their clients had deep relationships. Moreover, as Khanna notes, “because we were in the pandemic and working from home, I literally gave in one computer one day and got another the next, and was able to continue working on the same cases with the same clients without missing a beat.” This consistency was a boon to the firm as they began to rethink other aspects of law firm culture. With the clients and staff in place, they were able to ask questions like: What do we want to build? What other kinds of clients should we be targeting now that we’re out of the big law world? What kinds of internal structures will afford our lawyers and staff opportunities to thrive? What is our approach to diversity? How can we become more representative of the voters and the organizations we represent?

This last question was critical. As Khanna says, “We know the voter demographics and they often don’t reflect the demographics of a big law firm. So how do we use all the resources our new law firm brings to bear to reimagine what it means to work at a law firm, to create a new culture both externally toward our clients and internally within our practice.” When the firm opened its doors on day one, their press release said, “Of the 50 initial lawyers, half are women and a third are BIPOC.” Those demographics remain true as Elias Law Group has grown; among the partnership alone, more than half are women and more than a quarter are BIPOC.

An odd dichotomy

“The times our practice is busiest are often the times when democracy is facing the biggest threat,” says Khanna.

Recently, when Khanna was interviewing a law school graduate for an associate position, the young attorney asked: “What’s the catch? There’s got to be a catch. You have law firm resources while actually helping people access the franchise. Why is that not the dream job?” Khanna’s answer? “It is the dream job.” She went on, “But the downside of making your career the cause that you are otherwise so invested in personally is that it can be hard to draw that boundary between your work and your life.”

Khanna explains that when people’s right to vote and the foundation of our democracy are at stake, the wins are that much more rewarding—and the losses that much more disheartening. She continues:

I always tell associates you’ve got to be careful to avoid feeling like the weight of the world is on your shoulders with every case. It’s not as easy when you close your computer to close your mind off to the kind of work that we do. It can really take over your life, which, in some ways, is wonderful. It’s wonderful to be able to engage in work that is relevant, impactful, and fulfilling, but it’s also equally important to remember you can’t carry this on your own. You must share that burden with your colleagues. You do have to sometimes turn off your computer—and turn off the demands of this dream job.

Khanna also recognizes an odd dichotomy between the future she wants to build and the growth of her firm. “The times our practice is busiest are often the times when democracy is facing the biggest threat,” she says. “So in some ways the best thing would be for us to be out of business at some point because it means voting rights are safe. But unfortunately we are seeing a lot of states taking more hard-line positions, with people in power realizing that if they don’t have support from the majority of voters, then the best thing they can do to stay in power is to suppress those votes.” Still, she hopes to make a dent in the push for progress, and eventually, as she says, “I hope that we can continue to use our legal practice as a foundation to grow and to help other progressive causes—to make sure that the same people who are being denied access to the ballot box are not being denied access to so many other fundamental rights.”

Similar to Khanna, Amunson is galvanized by seeing a public mobilization and awareness of the right to vote, calling it “the most important issue of our time.” She tells law students interested in the field: “Getting involved at any level is so important, whether it’s doing election protection or becoming a poll worker or volunteering for a campaign. It doesn’t have to be litigating a case up to the Supreme Court. It’s what I learned even by doing that campaign back in 2000—how localized issues often are.”

And increasingly, when Amunson interviews graduates for associate positions, she sees this kind of involvement reflected on their résumés. The Harvard Law School Election Law Clinic will, hopefully, serve to add to this dedicated and talented pool of candidates.

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Election Lawyers Volume 8 • Issue 2 • January/February 2022

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