Joe Biden assembled hundreds of lawyers to work with his presidential campaign four years ago, which took an unusual detour through the courts when his rival Donald Trump and his allies brought dozens of lawsuits making election fraud claims.
Bracing for an onslaught of post election lawsuits to cap off what has already been a furiously litigated presidential contest, the Harris-Walz campaign has substantially broadened the Democratic legal team. It has spent the majority of the year attempting to anticipate any legal curveball that could arise in the critical days before—and following—voters going to the polls.
“It’s really just making sure we have systems in place — which we do — to monitor what Republicans are doing everywhere,” said former Biden White House counsel Dana Remus, who is leading the Harris legal operation. “As soon as they file a case, as soon as they start saying election results can’t be trusted, we are prepared to respond.”
Remus is a Yale Law graduate and a partner at Covington & Burling. Her diverse résumé includes clerking for conservative Justice Samuel Alito. In her inner circle is Bob Bauer, Joe Biden’s lawyer and White House counsel to former President Barack Obama, who also teaches law at New York University.
They have assigned priority to coordinating with local lawyers who are steeped in the minutiae of state election legislation and know how to navigate their hometown courts best. A series of teams—each specifically focused on a particular priority or battleground state—have been running for the last year, with local lawyers working with a designated partner at one of a few national, large legal firms that are helping direct strategy.
Over 400 lawyers have been writing thousands of pages of draft legal arguments and memos that could be quickly deployed in fast-moving litigation. A more substantial network of around 10,000 attorneys is on tap to be on the ground and supporting brainstorming sessions that work, in effect, like legal game theory, with leading lawyers sketching out strategies for addressing a plethora of hypothetical scenarios that could arise in legal combat over the results of the election.
The group has heavily focused on planning for possible disruptions or delays to the certification of vote totals, both at the state and county levels and in Congress. They say they’re prepared to respond to any voter and election worker intimidation efforts, including physical unreason on Election Day or during state vote counting afterward.
Other legal heavy hitters in the Harris-Walz camp include two attorneys who served as U.S. solicitor general: Seth Waxman, who has argued over 80 cases at the U.S. Supreme Court, and Donald Verrilli, who successfully defended the constitutionality of the Affordable Care Act in a landmark 2012 case.
Also included in the mix is Marc Elias, who became somewhat of a celebrity in Dem circles for championing his efforts to battle Republicans and Trump in court publicly. Harris and Elias have a close relationship that dates back to his work on her Senate race in 2016 and his efforts to help her navigate Washington after she won. His style is aggressive and often at odds with the Biden team. Still, the vice president tapped him to strengthen her group, according to individuals familiar with the issue, and he has focused on possible recounts and other issues postelection.
DNC has spent over $22 million on attorneys in this election cycle
The Democratic National Committee has spent over $22 million on attorneys in this election cycle — by the summer — according to an analysis by the Wall Street Journal of the most recent federal campaign finance issues. At the top of the list of expenses are national firms, including Munger, Tolles & Olson, Covington, WilmerHale, and Perkins Coie.
There has already been plenty of litigation. The GOP, which has mobilized thousands of attorneys, has been the driving force for the majority of it, supporting or filing lawsuits contesting a range of voting procedures. Republican National Committee spokeswoman Claire Zunk said the party is involved in over 130 lawsuits in 26 states to protect election integrity, including to ensure voter rolls are correct and ineligible people, including non-citizens, don’t vote.
“Our unprecedented election integrity operation is committed to defending the law and protecting every legal vote,” said Zunk. “We have engaged and won in record numbers of legal battles to secure our election. We have stopped Democrat schemes to dismantle election safeguards and will continue to fight for a fair and transparent election for all Americans.”
Dems, who have intervened in court to help defend against Republican legal claims, say their opponents are inventing issues that don’t exist to serve their narrative politically.
“By filing all these lawsuits week after week,” said Bauer, Republicans are seeking to “lay the foundation for claims that they can make after the fact about why, if Trump loses, he lost.”
Republicans have been on the losing side of several recent rulings. Among them, Michigan and North Carolina judges this week rejected GOP arguments that counties should not have to count provisional ballots from voters who made a mess of their mail-in ballots by filling them out improperly. Courts have also turned away several challenges backed by the GOP regarding how states maintain their voter rolls.
While Democrats have largely portrayed their legal strategy as defensive against GOP aggression, they have additionally gone on offense, notably in Georgia, where they challenged new rules from the State Election Board that could have given the body more power. A judge recently stopped those rules from taking effect.
However, the most intense legal period has likely not begun, and the weeks following November 5 will be an all-out sprint for election attorneys. Deadlines to count ballots and certify results at the state and local level begin looming immediately following Election Day. In 15 U.S. states, election officials at the county level must finish counting within a week, according to the National Conference of State Legislatures.
Dozens of cases were litigated after Election Day four years ago. Although Trump and his allies lost all of them, the battles continued through mid-December of the year, when the highest court rejected a last-minute bid to void millions of battleground state votes in four states.
Veterans of election law said litigation is not likely to determine the outcome of the presidential contest and other races, but lawyering can play a critical role nonetheless.
“What matters is that you have quality lawyers who have thought through strategy,” said Richard Hasen, UCLA law professor. “Good lawyers give you a chance to win cases. Bad lawyers can lose winnable cases.”
