When We Fight, We Win

Background split 50-50 with the left side bright blue and the right side bright red and a big black and white sign in the center that reads "WE DEMAND VOTING RIGHTS NOW!"

Four years ago, nearly to the day, I wrote about the honor, the anxiety and the anguish of litigating voting and election cases when democracy is literally at stake. Like many of you, I had hoped that the 2020 election would deliver a decisive blow against MAGA extremism. I hoped that democracy would heal, and Donald Trump would fade into history as a disgraced one-term president who would be scorned by future generations.

I was certain, after his disgraceful handling of the 2020 post-election — the lies, frivolous lawsuits and the violent insurrection on Jan. 6 — Republicans would move on. Politics would return to normal.

That is not what has happened.

Almost immediately, Republicans embraced a twisted revisionist history in which election workers were the villains and Donald Trump was the victim. Election denialism became the right’s new religion.  

Meanwhile, Republican-controlled legislatures enacted a wave of new voter suppression laws. When congressional Democrats tried to protect voters, Republicans blocked them. Not a single Republican member of the House of Representatives voted for the John R. Lewis Voting Rights Advancement Act, the Freedom to Vote Act or the For the People Act.

Since then, the Republican Party has ceased to exist apart from Donald Trump’s whim. While Republicans once acted like they were unaware of the outrageous things Trump said, now they rush to embrace it, no matter how absurd or indecent.

Important segments of the media have simply given up trying to fact check him or hold him to account. There are troubling signs that they are preemptively capitulating to him to avoid his future wrath. In early 2020, I started Democracy Docket to be an unapologetically pro-democracy source for news, information and analysis. I can promise you, it will never bow down, or show obedience, to Trump.

The following year, I left my law firm of nearly 30 years to start a new one focused on the unique challenges of our time. I am proud of the work we have done to help Democrats win elections, protect the right to vote and help nonprofit clients make positive change.

Throughout that time, we continued to face difficult choices with our clients about when to litigate and when to permit bad laws to go unchallenged. Time and time again, I was inspired by the bravery our clients showed in these battles.

I came to appreciate that the loudest voices of caution almost always originate from those with the least stake in the outcome of the elections. Those for whom voting is most important urged us to push ahead with the fierce urgency of now.

These naysayers often ask whether I regret the cases we lose. I ask in return: do they regret the results of their inaction?

I must admit that from time to time I have doubts. Despite the fact that we win more cases than we lose, I find the feeling of victory more fleeting than the sting of defeat. In those moments, however I reread the words of the members of the Congressional Black Caucus, whose constituents have the most at stake:

Be unapologetic in your commitment to do whatever it takes to ensure that every American has their vote counted no matter how they look or where they live. No lawsuit is too trivial when it comes to the voting rights of citizens.

The truth is that litigation has historically been a critical tool to protect and expand voting rights. As we face the prospect of a MAGA takeover of government, I believe the last three years have required an aggressive, strategic approach to fighting back against voter suppression and election subversion in the courts.

I am proud of the work my team did to secure victories for voters in places like Arizona, Florida, Montana, Nevada, New York, North Carolina, Ohio, Pennsylvania and Wisconsin. I am proud that we worked with former U.S. Attorney General Eric Holder to plan and execute an aggressive 50-state strategy to ensure fair congressional maps, including by winning two cases for Black voters in the U.S. Supreme Court.

As we prepare for yet another high-stakes election, the professional naysayers are back. While we have seen Republicans boast about their aggressive litigation strategy, these pundits prefer to criticize both sides rather than speak in clear moral terms.

Four years ago, I was more tentative that we had made the right decisions. I now have the confidence that history and winning provides.

I am glad that we did not listen to the cynics. We did not allow caution to lead us to abandon voters. We did not walk away from the fight, instead we engaged it head on. Because here’s the truth: when we fight, we win.