The Trump and Biden campaigns will have short lists of Supreme Court litigators to choose from if the election prompts a Bush v. Gore style legal dispute, court watchers say.
William Consovoy, a conservative elections lawyer whose star is rising on the Trump team, and former Obama-era Solicitor General Donald Verrilli Jr., are among the leading contenders.
The high court appears more likely to play a role in the outcome of the presidential race than any time since 2000, given the hundreds of election-related cases winding their way through federal and state courts. As some voters balk at going to the polls during a pandemic, President Donald Trump and others have been attempting to sow doubts about mail-in ballots. Trump has said he hopes the court, with a newly confirmed ninth justice in place, takes up the issue of ballot integrity after the election.
“I’m counting on them to look at the ballots, definitely,” Trump said during the Sept. 29 presidential debate, referring to the high court.
Democrats, meanwhile, are fighting to block proposed restrictions on voting, and to broaden access where possible.
Both sides have recently set up legal team “war rooms” to plan for a range of contingencies—a possible indication they’re quietly considering who might fill the roles that Ted Olson and David Boies played for the GOP and the Democrats in Bush v. Gore, several long-time Supreme Court practitioners and election law professors say. That case brought to the Supreme Court the fight over whether to recount disputed ballots in Florida after the 2000 election.
A host of leading firms have already been advising the Trump and Biden campaigns and the political parties in this election cycle, federal records show. They include Jones Day and Wiley Rein for the Republicans, and Covington & Burling and Perkins Coie for the Democrats.
Leading Names Emerge
Consovoy leads the list of attorneys who could take the top litigator role for the Trump team. He’s been involved in efforts to keep Trump’s tax returns private, and worked on several recent voting rights cases. Kirkland & Ellis partner Paul Clement, currently on Trump’s short list for future Supreme Court seats, is another name being floated.
Jay Sekulow is also on the list, court observers say. Sekulow defended Trump during Special Counsel Robert Mueller’s investigation. He was recently tapped by the president to co-lead the campaign’s legal war room, along with Trump attorney Rudy Giuliani.
Several former solicitors general are emerging as the Biden campaign’s potential lead Supreme Court litigator. Most put Verrilli, President Barack Obama’s solicitor general from 2011-2016, at the top. The Munger, Tolles & Olson partner last month signed on to co-lead a new “special litigation unit” within the Biden campaign, according to a New York Times report, along with another former SG, Walter Dellinger.
Court watchers also list Hogan Lovells partner Neal Katyal, an acting solicitor general under Obama; former Clinton administration SG Seth Waxman, a WilmerHale partner; and Marc Elias, a veteran election lawyer for Perkins Coie already handling some election- and ballot-related suits for the Biden campaign.
Observers say the ideal candidates generally are seasoned litigators who have experience arguing before the Supreme Court, and a background in election law.
“I think they want someone who is very experienced litigating with a good rapport with the Justices, like a former solicitor general,” said Rick Hasen, a professor at University of California, Irvine School of Law who runs the Election Law Blog.
Katyal and Waxman declined comment. Consovoy, Clement, Verrilli, and Elias couldn’t be reached.
A Trump campaign official told Bloomberg Law that Sekulow “is a key supporter of the president’s, and he of course plays an important part of the president’s reelection effort.”
Jones Day and the GOP
Top law firms often align themselves with certain campaigns and parties as presidential campaigns take shape.
Jones Day, traditionally a GOP-aligned firm, made clear its support for Trump in the 2016 presidential race—and then again, soon after he was sworn in. The firm loaned several partners to staff the new administration’s White House and Justice Department, including Don McGahn, White House counsel from Trump’s inauguration through late 2018.
Jones Day received a combined $2.9 million from the Trump reelection campaign and the RNC for legal services from Jan. 1 of this year through Oct. 14, according to FEC records—more than any other firm.
Consovoy’s firm received a combined $2.8 million from the RNC and the Trump campaign during 2020. The firm has been leading the Trump campaign’s efforts in voting cases in several jurisdictions around the country. Its attorneys sued in recent months to rescind California’s attempt to send absentee ballots to each registered voter in the state, and argued against extending Wisconsin’s deadline for mail-in voting.
The Trump campaign and the president’s legal proxies say mail-in voting should be restricted to reduce fraud and ensure ballot integrity. Democrats contend the coronavirus pandemic makes in-person voting less safe, necessitating reliable voting by mail—and that instances of fraud have actually been extraordinarily rare.
The traditional GOP-leaning Wiley Rein, based in Washington, also received about $865,000 from the Republican party committee in 2020, FEC records show.
Though Jones Day may be linked more than any other law firm with the Trump White House, another firm, Harder LLC, received the most money from his campaign in 2020—just over $1.8 million, FEC records show. Lawyer Charles Harder has handled defamation and related matters on Trump’s behalf.
Perkins Coie’s Millions
Washington-based Covington has taken the lead in assisting the Biden campaign with its legal efforts in 2020, according the FEC. The firm billed the campaign more than $915,000 over the course of the year.
Covington’s roster includes several key former Obama backers. Partner and former attorney general Eric Holder Jr. has taken a key role advising the Biden campaign’s legal team. Robert Lenhard, a Covington partner and former FEC chair, was selected last year by Biden to be his campaign chair.
Boston-based Hemenway & Barnes received the second-highest amount from the Biden campaign in 2020, at just more $100,000, according to the FEC.
The firm most intertwined in the Democrats’ election law efforts this year is Seattle-based Perkins Coie—which through the end of September had received more than $5.7 million from the DNC. That firm—and Elias, the chair of its political law practice—have been more involved in the state-by-state battles for voting rights on behalf of Biden this election than any other.
The legal efforts have been ramping up. More than half of the $5.7 million the firm has received from the DNC came in September and October, FEC records show.
Several other Big Law firms also were billed by the DNC in 2020, including Latham & Watkins, Fox Rothschild, and Vinson & Elkins.
‘This Isn’t Usual’
The Supreme Court in Bush v. Gore ruled more than a month after the 2000 election to block a statewide recall in Florida and allow a previous vote certification in favor of President George W. Bush to stand. The decision gave Bush the state’s electoral keys to the White House. While it’s unclear if the Supreme Court will play anywhere near as decisive a role in the 2020 election, Trump is eager for the court to be involved.
“I think this will end up in the Supreme Court and I think it’s very important that we have nine justices, and I think the system’s going to go very quickly,” Trump told a meeting of Republican state attorneys general on Sept. 23.
Conventional wisdom is that Trump believes the Court, with three justices he selected—Neil Gorsuch, Brett Kavanaugh, and nominee Amy Coney Barrett—may be favorably disposed to find in his favor.
Still, it’s unclear what type of case the court may decide to mull over post-election, or how large a role it would play in deciding the outcome of the race.
One elections expert said either of two types of cases might come into play.
Court disputes may revolve around which ballots will count, said Wendy Weiser, who directs the democracy program for the Brennan Center for Justice at New York University, a nonpartisan think tank and public interest law center.
Litigation could also stem from an abuse of power claim, Weiser said, such as if a state legislature declares its state’s election results void and tries to appoint electors themselves instead. Some have threatened to do so.
It’s important to remember how rare, even “radical,” these types of election-related claims are, Weiser said.
“This isn’t usual,” she said. “This is not what the system should produce.”
—With assistance from Brian Baxter and Kenneth P. Doyle.