Republicans Prepare a New Wave of Legal Attacks on Voting

Republicans are beginning a new wave of legal attacks on our elections. We know they will be shameless and ruthless. What we don’t know is if they will be effective.

Whatever achievements Ronna McDaniel had as RNC chair, executing an effective legal strategy was not one of them. Four years ago, when I began litigating a series of cases aimed at reducing race and age discrimination in mail-in voting and ballot counting, the Republican Party was caught flat footed.

At first the GOP largely sat on the sidelines. Then, in February 2020, McDaniel announced that the RNC would spend $10 million fighting against these cases. When the pandemic began and my litigation was succeeding, the RNC doubled its commitment to $20 million and promised to “spend whatever is necessary” to block our litigation efforts. It was only in May of that year that the RNC filed its first anti-voting lawsuit, according to Democracy Docket’s case database. 

Republicans now routinely point to the outcome of the cases I filed as one reason Trump was defeated. They have become a key part of their false rallying cry of voter fraud and an integral part of election denialism upon which the “Big Lie” is based. 

Bolstered by his three new hires, Whatley has promised to “work around the clock to file aggressive litigation where needed.”

As a result, I have come to occupy an odd place in the Republican Party’s fevered imagination. They both loath my work and admire my skill. They assign me extraordinary powers I do not possess.

In one dramatic instance, conservative political commentator Lou Dobbs suggested in 2020 that Trump’s campaign pay me $500,000,000 to simply stop litigating against them. Since then, Steve Bannon has called me the “gold standard” and implored me to “switch sides.” He routinely chastises his own party’s lawyers for not being as tough or successful as I am.

Last week, the conservative Daily Caller reported the often repeated right-wing lament that “[i]t is evident from dozens of operatives working on election integrity within the Republican sphere that there is no Marc Elias of the right.”

It is not an overstatement to say that Ronna McDaniel was forced out of the RNC in large measure over her inability to convince Trump and the election deniers that she could run a more effective voter suppression and election subversion program in 2024; including one that resulted in more victories in court.

It makes sense then, that her replacement is an attorney Michael Whatley. As the New York Times reported:

Mr. Trump’s selection of Mr. Whatley sums up the former president’s vision for the new R.N.C. He wants it to share his obsession with the false idea that President Biden and Democrats stole the 2020 election from him and are working to do it again in 2024. Mr. Trump believes Mr. Whatley is more in sync with his views about voter fraud than Ms. McDaniel, and he has insisted that Mr. Whatley will stop Democrats from “cheating” in November.

It also makes sense that Whatley’s first new appointments are to his legal team. Even as the RNC was announcing mass layoffs, Whatley moved forward with three high profile legal additions.

In a nod to the broader establishment, Whatley chose longtime GOP lawyer Charlie Spies as the RNC’s new chief counsel. Spies has vast experience in GOP circles but little MAGA pedigree. He worked for Mitt Romney in 2008 and for Jeb Bush’s super PAC, where, in 2015, he filed a complaint against Trump for violating federal campaign finance laws.

More importantly, Whatley convinced Republican lawyer Bill McGinley to serve as “outside counsel for election integrity.” Like Spies, McGinley is an experienced Republican attorney. A tenacious lawyer, McGinley is a true MAGA believer, having served in Trump’s White House. His law firm, Holzman Vogel, has deep experience in representing Republicans in election litigation, but has done so from a decidedly non-Trumpian perch or perspective. Assuming McGinley performs his new task from his current firm, it would bring new resources to the cause of voter suppression and election denialism.

These two serious election lawyers are joined by former OANN anchor, Christina Bobb, who will serve as senior counsel for election integrity. Her book — “Stealing Your Vote: The Inside Story of the 2020 Election and What It Means for 2024” — tells you all you need to know about her perspective. While she is unlikely to add much to the RNC’s competence quotient, her presence and wholehearted belief in the “Big Lie” is a notable offset to the two more establishment figures.

Bolstered by his three new hires, Whatley has promised to “work around the clock to file aggressive litigation where needed.” In a letter to RNC staff, he affirmed that “[t]he RNC’s new posture as it relates to this litigation will be an aggressive, proactive effort.”

I worked against Whatley when he ran the North Carolina Republican Party and have had legal fights with Spies and McGinley. They are not Mike Lindell, Jenna Ellis and Rudy Giuliani. None started as Trump sycophants. Each traded away more establishment ties to go all in with MAGA. While they may now be all in with Trump, Spies and McGinley are competent and smart lawyers.

These lawyers, and the many others who will work with them, will soon find themselves arguing against the right to vote and in favor of voter intimidation and election subversion. If history is a guide, they will end up ethically and perhaps legally compromised. If the stakes weren’t so high, I might feel bad for them. But the stakes are that high.

During his State of the Union address, President Joe Biden implored us all to “be honest, the threat remains, and democracy must be defended.” Republicans are prepared to play offense — to put the fate of our democracy on the docket.

So am I.

I have been litigating election and voting cases for more than two decades. I have seen the best and the worst of Republican legal efforts. There is no doubt that 2020 was among their worst. It is too soon to know whether their 2024 effort will be better organized and executed. Either way, we must all be ready.