It’s only a few hours into Election Day, and things are already coming undone. In Michigan, Republican groups have instructed dozens of people to stand outside polling places and watch menacingly as voters enter. In Georgia, a shortage of poll workers in Atlanta leads to seven-hour lines that stretch for miles, as would-be voters try to follow social-distancing guidelines. To make matters worse, the U.S. Postal Service says it won’t be able to deliver thousands of mail-in ballots to local election offices before the midnight deadline in some states, effectively disenfranchising those voters. These are the scenarios that keep Democratic lawyer Marc Elias up at night.
The U.S. election system wasn’t in great shape even before the pandemic upended the way tens of millions of Americans cast their ballots. Now Trump and his Republican allies are working tirelessly to reduce turnout and delegitimize voting by mail. Many of these fights are playing out in courtrooms across the country as lawyers for the two major parties, voting rights groups, and individual candidates rush to shape the election before it has even taken place. Their efforts won’t necessarily decide the outcome in 2020, but they could deliver to either campaign the next best thing—namely, a decision on who actually gets to determine that outcome.
Elias is one of the central figures on the Democratic side. A hard-charging, Twitter-happy partner at the Perkins Coie law firm, he has served as general counsel to two presidential campaigns: John Kerry’s in 2004, and Hillary Clinton’s in 2016. He now works as counsel for the Democratic National Committee and the party’s House and Senate campaign committees. If the results are close, or the outcome uncertain, for any of their candidates on November 4, then Elias will likely be among the lawyers who swoop in to wage the high-stakes legal battles that follow—and in the process, finally answer a defining question of the Trump era: Can the legal system actually constrain a lawless president?
Elias is already something of a wartime consigliere for the Democratic elite. Born and raised in New York, he earned a law degree at Duke University and then moved to Washington, D.C., in the 1990s. His big break in Democratic politics came in 1998, when he represented former Nevada Senator Harry Reid in a recount fight that saw Democrats hold the seat by just 428 votes. Over the next 20 years, he steadily became a stalwart ally for top Democrats caught in dogfights: He took part in Al Franken’s successful recount battle in Minnesota in 2008, which helped create the Democratic supermajority that passed the Affordable Care Act about a year later, and in Bill Nelson’s unsuccessful effort in Florida in 2018. (After Nelson hired Elias, Trump falsely claimed on Twitter that the Democrats had “sent their best Election stealing lawyer” to commit election fraud. The president’s ire may have been personal: Elias is infamous among Republicans, because, while working for Hillary Clinton’s campaign, he hired Fusion GPS to produce the research that led to the salacious and unverified Steele dossier.)
Some of Elias’s most influential work took place in the realm of campaign finance—sometimes in ways that undercut liberal efforts to remove money from politics. After the Supreme Court’s landmark 2010 ruling in Citizens United, Elias, who was then working for a group devoted to electing Democratic candidates, was among the lawyers who asked the Federal Election Commission to issue an advisory opinion about political organizations that only made “independent expenditures.” That opinion helped usher in the age of the super PAC. And in 2014, Politico reported that he had played a key role in inserting a provision into a major spending bill that would significantly raise the cap on individual donations to political parties.