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The First Defense Against Trump’s Assault on Democracy

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The First Defense Against Trump’s Assault on Democracy

Last year, Brian Kemp, the governor of Georgia, signed into law one of the nation’s most comprehensive voter-suppression bills, while sitting under a painting of a plantation. It was a fitting metaphor for a man who, as Georgia’s secretary of state, purged nearly a million and a half registered voters, a significant number of them people of color; blocked the registration of more than fifty thousand potential voters, seventy per cent of them Black; and shuttered more than two hundred polling sites, many of them in poor neighborhoods, which led to hours-long wait times at the locations that remained. In the 2018 gubernatorial race, Kemp was still Georgia’s highest election official when he defeated Stacey Abrams, a Black woman, by around fifty-four thousand votes.

Georgia’s Election Integrity Act of 2021 makes it illegal for anyone other than poll workers to distribute water and food to people lining up to vote, no matter how long they have been waiting, or how hot the day. It also empowers Georgians to bring an unlimited number of challenges to another citizen’s right to cast a ballot, and strengthens an existing Georgia law that requires challenged voters to defend their qualifications before a government board or risk disenfranchisement. Perhaps most significant, it removes the secretary of state as chair of Georgia’s election board, which means that the body is now effectively a tool of the Republican state legislature. In practice, this could put Republican partisans in a position to disqualify ballots in Democratic counties.

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Six hours after Kemp put pen to paper, the state’s election officials were sued. The lead lawyer for the three voting-rights groups bringing the suit was a middle-aged white guy living in northern Virginia named Marc Elias. At the time, Elias was the head of the political-law practice at Perkins Coie, a Seattle-based firm with deep ties to the Democratic Party. He and his team had sued Georgia a dozen times before, for various election-related infractions, and Georgia was just one of twenty-five states where, since 2016, Elias had aggressively challenged restrictive voting laws and the maps that determine the shape and composition of congressional districts. In the process, Elias had earned a reputation as a zealous—some, even admirers, would say overzealous—defender of democracy. “One thing about Marc Elias, he’s pure evil, but, man, that brother is smart, tough,” Steve Bannon said on his podcast, “The War Room,” last December. “He’s crazy, but he’s a fighter, and I admire fighters.”

To Elias, there couldn’t be a stronger endorsement. “My life changed on a night in November, 2016, when it became clear to me that the country I thought we were living in was not the country where we were living,” he told me. “I decided that I was going to focus—really, really, really focus—on pro-democracy activities, and elections and voting rights, to try to hopefully weather four years of Donald Trump.”

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After the 2016 election, Elias took on an increasing amount of election-related litigation, challenging a voter-I.D. law in Missouri, an attempt to disenfranchise college students in New Hampshire, the rejection of thousands of mailed ballots from people of color in Georgia. There were so many cases, he said, “I was frickin’ running around the country from courthouse to courthouse.” He also argued three cases of racial gerrymandering before the Supreme Court, all of which he won. In the process, Elias earned the enmity of Trump. In November, 2018, two days after the midterm elections returned a Democratic majority in the House of Representatives, the President tweeted, “As soon as Democrats sent their best Election stealing lawyer, Marc Elias, to Broward County they miraculously started finding Democrat votes. Don’t worry, Florida—I am sending much better lawyers to expose the FRAUD!” Elias’s brother framed the tweet as a gift.

Elias began speaking out publicly against Trump’s efforts to subvert democracy, discarding any lawyerly circumspection, restraint, or solicitude that he might have displayed in the past. (He now has more than six hundred and fifty thousand followers on Twitter.) Trump’s election, he told me, “radicalized” him. “I went from being a lawyer who was largely thought of in Washington as a relatively bipartisan lawyer—a Democratic lawyer, but a lawyer who worked within the rules of D.C., which had been very chummy between the two sides,” Elias said. “I went from that to someone who was appalled that people who I thought shared the same commitment to liberal democracy that I do were siding with a President who didn’t stand for that. And so I became a much more polarized person and a more polarizing lawyer.”

Elias told me that Trump’s machinations before the 2020 election convinced him that the President was setting the stage to undermine the outcome. “Donald Trump was lying about the accuracy of elections in advance of the 2020 election, because he was acculturating his supporters and the media to what came after,” Elias said. “By the time you get to 2019, you have a guy who’s authoritarian, does not respect democracy or democratic norms, who’s willing to break any law or rule or norm in order to keep himself in power.”

Following the election, Trump’s team of lawyers, along with a group of Republican allies across the country, filed dozens of lawsuits, primarily challenging the results in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. By the time that Congress assembled on January 6, 2021, to certify the results of the election, the Biden campaign had won all but one of more than sixty cases it litigated; Elias supervised a majority of these cases. Bob Bauer, a senior adviser for the Biden campaign, whose responsibilities included voting-rights protections, told me that Elias’s group possessed a rare combination of legal expertise and tirelessness. “We knew these Trump Republicans were going to run around filing crazy stuff all over the place,” Bauer, who is also the former chair of the political-law group at Perkins Coie, said. “We needed a team of people who knew election law and could do whatever it took—get in the car, get on a plane, and just cover a lot of territory. Marc had the ultimate responsibility at the law firm for how these resources were used—for who went where, and litigated what.”

To some of his critics, Elias’s long-standing affiliation with the Democratic Party muddies his defense of voting rights and democracy. Richard Hasen, a law professor at the University of California, Irvine, and a specialist in election law who often spars with Elias on Twitter, told me, “He portrays himself as a pro-voter lawyer, but when there is a potential deviation between, say, what voters generically might want, and what Democrats may want, he’s going to favor the Democrats.” As an example, Hasen pointed to Elias’s aggressive challenges to gerrymandered electoral maps in battleground states such as Wisconsin and North Carolina, and his apparent acceptance of gerrymandered maps in places like New York and Maryland, where those maps are good for Democrats. Another lawyer who works on behalf of Democrats told me that “saying only the Democratic Party can save democracy is not a winning recipe.”

Elias is quick to dismiss this criticism. He’s a partisan, he told me, because that’s what the moment demands: “If we get to a place where the Democratic Party thinks it is in their interest to oppose or restrict voting rights, then you should call me back.” His friend and client, the former Attorney General Eric Holder, who chairs the National Democratic Redistricting Committee, put it this way: “We have to cut through the crap here and understand the sad reality right now. One party in this country stands for democracy, while substantial parts of the other party stand for its erosion and are comfortable with the notion of a political apartheid with minority rule. The Republicans are the ones who have made these issues partisan.”

Elias is fifty-three, balding, with a round and resolute face. He grew up in a lower-middle-class, liberal-Democrat, Jewish household on Long Island. His father, who didn’t go to college, cobbled together a living, first as a teletype operator on Wall Street, and later at a car-rental agency in New Jersey; his mother stayed home with Elias and his older brother. When Elias was thirteen, the family moved to the town of Suffern, in Rockland County, where Elias skipped eighth grade and enrolled in the public high school. “I was a not-model high-school student,” he said. “I’d skip school and not turn in homework assignments. I didn’t want anyone to know I was smart and get teased for it.” One day, his father sat him down and said, “Marc, God gave you a brain and God gave you hands, and you’re going to have to make a living using one or the other. You’re smart enough to make a living using your brain, but you need to accept that you’re going to have to earn a living one way or the other.” In other words, Elias explained, “Stop fucking off.’ ”

At Hamilton College, in upstate New York, Elias majored in government, with an eye toward academia. (Bernie Sanders, fresh off a congressional defeat, was one of his professors.) His brother, who was then in law school at Georgetown, encouraged him to pursue a law degree instead. Elias enrolled in a joint degree program in political science and law at Duke (where he met his wife, Brenley, who was in the same program). “I went to a small liberal-arts college because I didn’t know what I wanted to do,” he said. “I went to law school because I wasn’t sure what I wanted to do. And then I figured I would take the further procrastinating route of going to a big law firm because I was not sure what kind of law I wanted to practice.”

Upon graduation from Duke, he was offered a job in the D.C. office of Perkins Coie, where, as an associate, he helped Democratic candidates navigate campaign-finance laws, and other legal issues that arise when running a short-term, multimillion-dollar operation. He also developed a specialty in recount litigation, and eventually represented Al Franken, in 2008, in what was then the longest recount in American history. That same year, Barack Obama, another Perkins Coie client, was elected President, and, perhaps not coincidentally, Republicans across the country redoubled their efforts to limit the franchise by passing strict voter-I.D. laws. Elias began to take on these cases, too, while representing Democrats seeking office, his old professor, Sanders, among them. (He stopped representing Sanders when he became the chief counsel for Hillary Clinton’s 2016 Presidential run.)

In 2010, the Supreme Court issued its decision in Citizens United v. Federal Election Commission, which allows corporations and unions to spend an unlimited amount of money on political ads and negative messaging. Political-action committees, or PACs—groups that pool campaign contributions—already existed; the first one was formed in 1944, on behalf of Franklin Roosevelt. But Elias wanted to know if political-action committees formed to take advantage of Citizens United would be required to register with the F.E.C. Shortly after the ruling, he formed a PAC called Commonsense Ten, and sent a letter to the F.E.C., asking it to issue an advisory opinion. Its answer came a month later: yes, it said, these new entities—which Elias was calling “independent expenditure-only committees”—would have to register with the F.E.C.

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The First Defense Against Trump’s Assault on Democracy