After the politicians stop fighting for votes on Election Day, it will be the lawyers’ turn.
Election attorneys at Washington’s most politically connected firms are now mobilizing for the possibility of contested elections in the presidential and congressional races, adding to the networks of thousands of attorneys on the ground in states across the country. Dozens of Washington lawyers will be out in key states for ground-level “voter protection operations,” while others will stay in D.C. to coordinate efforts with their state-based counterparts or act as legal resources for issues including voter eligibility and broken voting machines.
The campaigns and their attorneys are keeping details of their legal strategies close to the vest. And with polls showing the potential for an extremely close presidential election with several key battleground states, the campaigns’ plans keep shifting for every slight advantage. “You can’t afford to have anybody not prepared on the back end when issues arise,” said Jill Holtzman Vogel, managing partner at Washington firm HoltzmanVogelJosefiak and former chief counsel of the Republican National Committee during the 2004 election. “Nobody’s going to go into this election not prepared.”
The Republican National Committee has almost $5.3 million set aside for a potential recount, according to the group’s Federal Election Commission filings. The Democratic National Committee’s recount fund has about $54,000, The Huffington Post reported on October 1. (The National Law Journal couldn’t independently verify the DNC sum.)
Washington firms will be central players in much of the action. The Obama campaign has spent $2.4 million in the past two years for representation from Perkins Coie, and the Democratic National Committee spent just more than $1 million with the firm in the same period, according to Federal Election Commission reports through September. Their top D.C.-based attorneys working for the Democrats are Robert Bauer representing the Obama campaign, and Marc Elias.
On the Republican side, the Romney campaign has paid Patton Boggs nearly $659,000 for legal consulting during the same time period, significantly more than at any other firm. Patton is home to Romney’s top campaign attorney, Benjamin Ginsberg. Some of the attorneys, like Vogel, said they couldn’t divulge their plans or clients.
It used to be that an eerie calm would set over D.C. election lawyers a few days before the election, with no more political ads to approve, station managers to speak with about media buys, mailers to review or disclaimers to scrutinize. But since the drama of the 2000 George W. Bush-Al Gore recount, that isn’t the case any more. “What both sides now have done is basically mobilize thousands of lawyers nationwide on each side,” said Jan Witold Baran, a partner at Wiley Rein, which has been paid to represent the Republican senatorial and congressional committees this year. Baran is a former general counsel of the Republican National Committee. “They all hope something will happen. They usually spend some time on Election Day in some conference room waiting for some phone to ring. And when it does, everybody gets excited.
“And then the election’s over, and the voting’s over, and [we] wait to see if it’s really, really close,” said Baran, who said he will not be working election issues this year.
There will be a cadre of Washington-based lawyers on standby, who will be sent out if needed, Baran said, to spell other campaign staffers and lawyers who will be exhausted from working many hours in a row.
The campaigns have been contacting experienced election attorneys for possible reinforcements. Barry Richard of Greenberg Traurig, for example, who represented President George W. Bush in the 2000 presidential election litigation, said he has had conversations with both Republicans and Democrats about possible work after the election. But the discussions about taking on any election challenge would come only when and if such litigation were needed, he said.
Joseph Sandler of Sandler Reiff Young & Lamb, who served as in-house general counsel for the Democratic National Committee and continued to serve as general counsel of the DNC through his law firm through 2008, said Washington lawyers are involved in a number of ways. “Some actually go out to the states and have gotten paid positions, from a few weeks to a few months, some involved in the national legal team in Chicago,” he said.
As part of their efforts to recruit lawyers, the Romney and Obama campaigns have set up pages on their websites where legal professionals can sign up to help.
On barackobama.com, the campaign calls on attorneys, paralegals and law students to join the “Victory Counsel.” The Obama re-election team says the Victory Counsel is “the volunteer voter protection legal team that will help guide, build, and support our efforts to ensure that every eligible voter can vote on Election Day.”
The “Lawyers for Romney” pages on the Republican presidential nominee’s website sheds more light on his campaign’s preparations for potential legal skirmishes.
The campaign says lawyers could serve as operators and advisers in “state strategy rooms,” liaisons to county and state election officials and members of “rapid response” teams. They also might help with “the post-election canvass” and logistics for the volunteer legal program, according to the campaign.
The Romney team warns the lawyers that they may need to help the campaign up to six weeks after the election.
“In the case of a very close election in your assigned state, we will need dedicated volunteers to remain for several days to support the campaign and potentially act as observers of any post-election activity including the canvass and counting process,” the campaign says.
Meanwhile, the U.S. Justice Department has said it also will be vigilant on Election Day. Each of the 94 U.S. attorney’s offices across the country has an assistant U.S. attorney responsible for responding to allegations of election fraud and voter intimidation. They will coordinate with state authorities, FBI officials and DOJ lawyers in the Civil Rights Division’s voting and criminal sections, as well as the Criminal Division’s public integrity section.
The Alexandria, Va.-based Eastern District of Virginia is the only federal judicial district in the Washington area that hasn’t released the name of its election officer. The Maryland district’s officer is Assistant U.S. Attorney Tonya Kelly, while in Washington the assistant U.S. attorney responsible for such cases will be Loyaan Egal.
“Ensuring free and fair elections depends on citizens coming forward with information about discrimination or election fraud,” Ronald Machen Jr., the U.S. attorney for the District of Columbia, said in a written statement. “We ask that citizens remain vigilant about protecting the democratic process and immediately make any specific information available to the U.S. Attorney’s Office, the FBI, or the Civil Rights Division.”