Update: Rita Hart, the Democrat who lost the close House race in Iowa referenced in this article, announced March 31 she is dropping her challenge, decrying "the toxic campaign of political disinformation to attack this constitutional review of the closest congressional contest in 100 years."
By Eric Felten, RealClearInvestigations
March 24, 2021
This week the House Committee on Administration is taking up the challenge by Rita Hart to have Rep. Mariannette Miller-Meeks kicked out of Congress. The Democratic candidate for a vacant seat in Iowa’s 2nd Congressional District, Hart lost by six votes in November to Miller-Meeks, a Republican. The election was properly certified in Iowa, but Hart’s attorney – the Democratic Party’s most powerful power lawyer, Marc Elias – claims to have found extra ballots for Hart. He wants Congress to overrule state elections officials and seat Hart.
Rodney Davis, the ranking Republican member of the administration committee, blasts the effort, calling it an attempt to “steal a House seat.” He’s not alone is seeing hypocrisy in litigating to overturn an election after Democrats lambasted Donald Trump for doing much the same. But Elias may have something more ambitious in mind than just this one Iowa seat. His political action group, the Democracy Docket, is floating a new strategy to guarantee Democratic majorities in the House and Senate: unseating any Republican they say won unfairly, especially through “voter suppression” or gerrymandering.
Elias has long represented Democrats in close races. He was Al Franken’s attorney in 2008 (and well into 2009) for the comedian-turned-candidate's effort to overcome a 215-vote deficit in his challenge of Sen. Norm Coleman for a U.S. Senate seat from Minnesota. There were months of recounting -- and courtroom arguments over whether to count absentee ballots that had originally been rejected. Enough of those ballots eventually went to Franken that Coleman was sent packing.
Now Elias is representing Rita Hart in her effort to undo the certified Iowa election. Elias needs to come up with only seven yet-to-be-counted ballots for the Democrat and then persuade the congressional majority to overrule Iowa’s certification of Miller-Meeks as the winner. He claims to have that many uncounted votes and more: “22 ballots remain uncounted,” Elias declares at his Democracy Docket website. Elias concedes that a few of those votes would go to Miller-Meeks, but most would add to Hart’s count --“the results of which would put her ahead by 9 votes.” He argues that Article I, Section 5 of the Constitution empowers the House and Senate to overrule vote tallies as each body is the "Judge of the Elections, Returns and Qualifications of its own Members."
RealClearInvestigations reached out twice to Elias through Perkins Coie, the law firm at which he is a partner. He did not respond.
Elias has been described as the most consequential Democrat not holding an office. But that might sell him short. Compared with elected officials, whether a boisterous backbencher such as Alexandria Ocasio-Cortez or President Joe Biden himself, Elias is the Democrat doing the most to shape American political campaigns.
In the 2020 election, he was a key field marshal leading an army of lawyers for the Biden campaign’s “special litigation” unit. In litigatioin across the country, Elias’s Perkins Coie team fought restrictions on absentee ballots and litigated for the expansion of mail-in voting. Elias represented the Democratic National Committee, state Democratic parties, congressional Democrats, and activist groups such as Priorities USA, bringing more than 200 pre-election lawsuits.
Elias had tremendous success with litigation designed to change voting rules state by state well into campaign season. His win-loss record was even more impressive after Election Day. Leading more than 100 lawyers, Elias swamped Donald Trump’s legal team, who struggled to prove the president’s claims of electoral irregularities.
Elias is also notable for having made possible the creation and dissemination of the salacious Steele dossier that prompted a special prosecutor’s inquiry over supposed Russian election influence just weeks into Trump’s tenure in office. It was Elias and the firm at which he is a partner, Perkins Coie, who hired Fusion GPS, using money from the Clinton campaign and the DNC. Fusion in turn paid former British spy Christopher Steele to compile the never-verified and now discredited collection of memos accusing Donald Trump of conspiring with Russia to sway the 2016 election. His role in secretly delivering campaign cash used to pay foreign nationals to interfere in the election may have made Elias infamous among Republicans, but it’s been great for business with Democrats. The American Lawyer calls Elias “Every Democrat’s Favorite Lawyer.”
Elias calls what he practices “political law.” And no doubt when playing politics, being a lawyer has its advantages. When interviewed by the House, Elias was able to invoke attorney/client privilege and refuse to answer questions about his conversations with Hillary Clinton and the DNC. That privilege gave him the opportunity to have some fun at the expense of the lawmakers conducting the interview. Asked who his privilege covered at the DNC, he offered to find out the names of the committee vice chairs and officers. “I’m happy to get that for you,” he told Rep. Trey Gowdy. “It’s, I think, on their website.”
At one point Donna Brazile was a client -- she chaired the DNC from July 2016 through February 2017. She told the Senate Select Committee on Intelligence that at the time she was “unaware of Steele’s activities” shopping the dossier around to journalists. But in the days before the election, she started getting calls from reporters asking her to confirm that “MI-6 was on [the DNC] payroll.” Brazile emailed Elias: “MI-6 on our payroll? Need to know.” Elias’s reply was as cynical as it was curt: “You don’t need to know.”
Elias and his team did run into trouble with their relentless tactics. A new rule taking effect for the 2020 election in Texas prohibited “straight-ticket voting,” the practice of checking one box to cast votes for the entire slate of a given party’s candidates. In challenging that rule, Elias and his fellow Perkins Coie lawyers earned a rebuke from the Fifth Circuit Court of Appeals: “Appellees did not notify the court that their latest motion … was nearly identical to the motion to supplement the record filed several months ago by the same attorneys.” Elias “failed to notify the court that their previous and nearly identical motion was denied. This inexplicable failure to disclose the earlier denial of their motion violated their duty of candor to the court.” The panel of judges sanctioned Elias and the five lawyers working with him on the case, encouraging them all to attend ethics training.
Normally such a sanction would be a humiliating embarrassment to a law firm. But a spokesman for Perkins Coie said they “strongly disagree with the Appellate Court’s ruling” and back Elias “completely.”
Elias seems to enjoy his notoriety. Having heard that Republicans are saying that a dirty trickster is leading the effort to unseat Miller-Meeks, Elias turned to Twitter to mock the GOP: “I really am living in their heads rent free,” he snarked, “and it's really cold, dark and empty in here.” The tweet is telling about how he expects his pleadings for Rita Hart to be received: If Elias thought he needed even one Republican vote to unseat Miller-Meeks, would he taunt them so?
Davis, the top House Administration Committee Republican, objected, saying that Iowa had counted and recounted the votes. The state certified Miller-Meeks the winner “after a thorough, transparent, and bipartisan process,” the Illinoisan said. Every vote valid under Iowa law, Davis said, had been counted.
From the first meeting of the committee, however, committee Chairwoman Zoe Lofgren was already echoing and endorsing the Elias filings: “Rita Hart,” she said, “has raised specific, credible allegations that enough validly cast ballots were wrongly excluded from the certified total to reverse the election’s outcome.”
Capitol Hill Republicans point to the bitter fight begun in 1984 over who won Indiana’s 8th Congressional District. It was a bruising battle in which Democrats used their majorities to seat Frank McCloskey even though his GOP opponent, Richard McIntyre, had been certified by Indiana as the winner by more than 400 votes. Republicans were outraged and responded with newly aggressive tactics devised by Newt Gingrich. The fight over Iowa’s 2nd District seat promises to be far more brutal than even the “bloody Eighth” in Indiana, in no small part because Elias feels no need to be solicitous of those he’s planning to steamroll.
“We’ve seen Democrats do this before -- steal a House seat by changing the rules,” Davis said in a committee meeting this month. Elias tweeted: “Republican House members are very brave in lying while hiding behind speech and debate immunity.” He then double-dog-dared lawmakers who have been critical of him: “How about they agree to waive it and then see how brave they are.”
Elias describes himself as a “Lawyer fighting for Democrats and voting rights for all.” The lawyer himself subordinates voting rights to Democratic victories. Republicans chafe at being lectured on electoral morals by someone they see as gaming elections for partisan, and monetary, gain. It was a year ago that Elias developed a litigation strategy built around what he calls the “four pillars.” Each eliminates rules Republicans say are necessary to protect against voter fraud. Elias denounces those rules as designed to suppress the votes of the poor and minorities. He says the GOP is committed to “disenfranchising voters.”
The first of Elias’s “pillars” supposes that a 55-cent stamp is more than many voters can afford in order to exercise their franchise: “Postage must be free or prepaid by the government.” The second pillar all but guarantees results won’t be known for weeks after Election Day in any close contest: “Ballots postmarked on or before Election Day must count.” And the third pillar is designed to gut state laws that require signatures on mail-in ballots match the signatures voters penned when they registered.
But it is the fourth pillar that worries Republicans most: “Community organizations should be permitted to help collect and deliver voted, sealed ballots.” The GOP sees this as an obvious invitation to “ballot harvesting.” The risk is that activists will take advantage of the elderly, for example, filling out their ballots for the activists’ preferred candidates. A Texas social worker, Kelly Reagan Brunner, was arrested last year and charged with 134 counts of voter fraud, accused, among other things, of registering dementia patients at a nursing home to vote.
Elias rejects the term “ballot harvesting” and instead insists the practice be referred to as “community ballot collection.” He accuses Republicans of passing laws against ballot-gathering as “an effort to suppress the vote.”
The four pillars are no longer just a litigation strategy, they are embedded in HR 1 -- the For the People Act, Democrats’ flagship legislation rewriting and nationalizing election law along the lines championed by Elias.
“The bill is irredeemable,” a minority congressional aide tells RealClearInvestigations. “The election administration provisions are made up of every Marc Elias policy dream meant to guarantee the outcome of elections for Democrats.”
“It’s hard to think of a good-faith reason that Democrats targeted every law designed to protect elections against fraud,” says a Republican attorney who practices election law.
“When you spread out Election Day for weeks or more, it can be hard to keep ballots secure,” he says. If a vote is cast at a polling place on Election Day, “there are observers.” But if votes are collected over days or weeks in drop boxes, it’s unlikely anyone will be keeping a watch on them.
Elias has said that the election laws he supports are part of a “democracy agenda,” which includes “changes to post-election recount and contest provisions to disincentivize frivolous attacks, while allowing those with genuine issues to raise them and have them resolved.”
Republican Davis says the issues in Iowa’s 2nd District have already been resolved – by Iowa election officials. “Unfortunately, however, the Democrat majority is not content to let Iowa voters choose their own representative. Instead, it has decided that Democrats in Washington, D.C., representing other states should choose Iowans’ representative for them. This is not how the Constitution or American democracy should work.”
But making the Constitution work that way -- and on a grand scale at that -- is apparently exactly what Elias has in mind.
While gearing up to argue for removing Miller-Meeks, Elias published, at his Democracy Docket website, an article by Harvard law professor Nicholas Stephanopoulos. Elias highlighted the essay, putting it in a “Spotlight” position and promoting it on Twitter as an “exclusive analysis” of Congress’ “forgotten electoral power.” Stephanopoulos argues Congress should refuse to seat any candidate who “benefited” from voter suppression or gerrymandering. Article I, Section 5 of the Constitution, he points out, makes each chamber of Congress “the Judge of the Elections [and] Returns ... of its own Members.” A simple majority of the House or Senate would be enough to undo any election, and neither the courts nor the president would have any grounds to intervene.
Article I, Section 5 is of course the same power Elias is calling on the House of Representatives to use in replacing Rep. Miller-Meeks with Rita Hart.
RealClearInvestigations asked Stephanopoulos whether an election would have to be close for the majority party to refuse to seat a winning minority party candidate. “I made no effort to work out the details of how exactly each chamber should exercise this authority,” Stephanopoulos replied.
But the practice would hardly be infrequent. Stephanopoulos defines voter suppression as any policy “that makes it hard for people to register and vote.” For Elias that means, among other things, any state law that shortens early voting, limits the number of ballot drop boxes, or blocks ballots received after Election Day. With a concept of voter suppression so broad, encompassing just about every conservative state’s election laws, there would be no shortage of Republicans who could find themselves unseated.
To avoid the appearance that refusing to seat one’s political opponents was a partisan power-grab, Stephanopoulos recommends creating “expert” panels to which this power could be delegated. “Each panel would be made up of respected election specialists, including administrators, attorneys and academics” who would determine well ahead of Election Day which candidates benefited from vote suppression. The “House and Senate could each rubber stamp these recommendations and rely on them to welcome — or exclude — members-elect looking to take their seats.”
“This is a terrible idea, undemocratic, elitist and extremely problematic,” says Lonna Atkeson, director of the Center for the Study of Voting, Elections and Democracy at the University of New Mexico. “The idea of an expert panel to overturn elections is crazy. Democracy is about voters, not experts.”
But as crazy as it may seem, Stephanopoulos is perfectly serious. So is Elias.
The effort to remove Miller-Meeks from Congress and put Rita Hart in her seat is Elias’ broader strategy in miniature. Under their interpretation of Article I, Section 5, Congress has an unbounded and uncontestable power to control who is and isn’t a lawmaker. For now, that theory is being put to use to wrest a single Iowa House seat away from Republicans. But armed with an expansive vision of how Article I, Section 5 can be used, there’s little reason to think Marc Elias would restrain his ambitions.