Before the Donald Trump-inspired challenges of the 2020 presidential election, Democrats and liberals alleged fraud and formally contested the results of the 2000, 2004, and 2016 Republican-won presidential elections. Those earlier challenges spurred the creation of a network of election litigators on the left — what J. Christian Adams, a conservative ex-Justice Department attorney pitted against them, calls a “linear build-out” of “some 30 groups” responsible for a lot of sudden changes in election law last year amid the pandemic.
For the closely fought 2020 presidential election, 29 largely Democrat-controlled states and the District of Columbia loosened voting laws, most expanding access to mail voting, according to the liberal Brennan Center for Justice. In response, after former President Trump’s efforts to contest his narrow loss, 19 largely conservative states tightened their voting laws, the Brennan Center reports. The latest changes have provoked a wave of litigation, overwhelmingly from the left.
Now Harvard Law School, in seeming recognition of the power of this “lawfare” strategy, is gearing up for a future where elections are regularly decided not at the ballot box – but in the courts. Two programs at Harvard Law show close ties between the school, the Democratic Party, and liberal activist groups with an interest in fighting elections through the judicial system.
Adams, whose nonprofit Public Interest Legal Foundation describes itself as “dedicated to election integrity,” says: “This is just the next phase: ‘Let’s set up an elite training academy.’ This is their Naval Academy of election litigators.”
Reporting the launch of the Election Law Clinic in April, Harvard Law Today said participating students will get course credit for working on political campaigns, as well as “hands-on litigation and advocacy work across a range of election law areas, with an initial focus on redistricting and voter suppression cases. Clinic offerings include federal and state litigation projects, as well as some advocacy opportunities.”
In an interview with RealClearInvestigations, Ruth Greenwood, the clinic’s new director, said its creation was driven by student demand: “As more people graduate and devote their careers to election law, it made sense for this premier law school to ensure that it has graduates ready to hit the ground running as election lawyers from day one.”
Greenwood stressed that she believes “elections should be decided by the voters, not their lawyers.” But other legal academics worry about what the advent of Harvard’s Election Law Clinic will mean. Glenn Reynolds, the libertarian University of Tennessee law professor known for his Instapundit blog, tells RealClearInvestigations that if institutions such as Harvard start turning out significantly more students with expertise in election law, those lawyers will create a demand for their expertise and election litigation.
“That’s just how the law works,” he says.
The backgrounds of those staffing the putatively nonpartisan Election Law Clinic show a distinct progressive tilt. Greenwood is a former fellow of the Democratic National Committee’s Voting Rights Institute. He also worked at the Campaign Legal Center, which receives its funding from major liberal groups such as ActBlue, the Southern Poverty Law Center, the Ford Foundation, and George Soros’ Open Society Foundations.
Greenwood is a proponent of congressional Democrats’ landmark proposed voting legislation, H.R. 1. She speaks glowingly of the bill as “the biggest step the federal government has taken to protect the right to vote since the passage of the Voting Rights Act in 1965. H.R. 1 not only includes bans on partisan gerrymandering and practices that suppress the vote, but also introduces better campaign finance regulations and ethics protections.”
Republicans fiercely oppose the bill on constitutional grounds — that it would put local elections under national control — as well as practical ones, in that Democrats in control at the national level could dispense with GOP-backed voting requirements.
Adams has called H.R. 1 a “partisan weapon masquerading as a civil rights law.” Even left-wing groups such as the ACLU have opposed the legislation, seeing its campaign finance and disclosure regulations as violating the First Amendment.
Theresa Lee, the Election Law Clinic’s litigation director, was formerly the senior staff attorney in the ACLU Voting Rights Project. The clinic also touts instructor Daniel Hessel, who has “litigated election law cases with the Campaign Legal Center and environmental cases with the Natural Resources Defense Council.”
Nicholas Stephanopoulos, an attorney who “provides strategic advice for clinic cases [and] helps to litigate some of these matters,” wrote a piece this year for Democracy Docket, the organization run by Marc Elias, a top election lawyer for the Democratic Party. In it, Stephanopoulos argues that Congress should refuse to seat a candidate who benefits from voter suppression (or gerrymandering) under Article I, Section 5 of the Constitution. And he defines voter suppression as “policies that make it hard for people to register and vote.”
Elias promoted the piece in the run-up to his ultimately unsuccessful effort to prevent Mariannette Miller-Meeks from assuming the vacant seat in Iowa’s 2nd Congressional District after her narrow win over Democrat Rita Hart.
Elias, who worked for the 2016 Hillary Clinton presidential campaign and Democratic National Committee, is perhaps best known for commissioning opposition research firm Fusion GPS to produce the fraudulent Steele dossier while Elias was at Democrat law firm Perkins Coie. Elias left Perkins Coie in August, shortly before his partner, Michael Sussmann, was indicted on charges of lying to the FBI in concealing his affiliation with the Clinton campaign and DNC while dishing dirt about alleged Trump-Russia collusion.
Harvard Law’s ties to partisan electioneering don’t end with the Election Law Clinic. It also boasts the Democracy and the Rule of Law Clinic, started in 2016. Students receive course credit for “an externship with Protect Democracy, a nonpartisan nonprofit founded by former White House and Department of Justice attorneys and dedicated to preventing our democracy from declining into a more authoritarian form of government.” According to the news outlet The Independent, the group, which got its name from a line in President Obama’s farewell speech, was founded by Obama administration lawyers to oppose then-President Trump.
If its mission doesn’t conflict with its description as a “nonpartisan nonprofit” organization, Protect Democracy’s structure might. Protect Democracy consists of two organizations under the same umbrella. While the Protect Democracy Project is a nonpartisan organization with a 501(c)(3) tax status, its partner organization United to Protect Democracy is a 501(c)(4) partisan entity. Both groups are listed at the same address a few blocks from the White House. Despite the 70 employees listed on their website, the address isn’t an office – it’s a mailbox service that hosts hundreds of organizations.