Political Law Personified: Marc Elias & Perkins Coie Take on Redistricting

This is the second half of a profile on Marc Elias and his work for Democrats through the law firm, Perkins Coie.

Redistricting

The “Tea Party” wave of the 2010 midterm elections meant Republicans across the country were in control of the 2011 redistricting effort in a number of states, enabling them to draw maps that favored their party and entrench legislative control. Left unchecked, Republicans would be in control of the next round of redistricting after the 2020 census.

The Democrats’ solution came in the form of the National Democratic Redistricting Committee. Founded in 2017, by former attorney general, Eric Holder, the 527 political action committee plans to “fight against Republican gerrymanders.” Former President Barack Obama has made this issue area his main focus upon leaving the White House.

The committee plans to use litigation, mobilization, and ballot initiatives, and harness electoral politics to encourage fair redistricting. (“Fair” districts, in this case, would result in more majority Democratic districts.) As the go-to lawyer for the Left, Marc Elias and Perkins Coie, naturally, are handling the cases.

But long before Holder and Obama made redistricting a high-profile priority, Marc Elias was suing states.

Back in 2012, Marc Elias and his team at Perkins Coie sued the state of Florida. He sued Virginia in 2012 and 2014. (These cases are still bouncing between appellate courts and the Supreme Court.) But who was paying for these expensive suits if Holder’s outfit was not organized until 2017?

The National Democratic Redistricting Trust. This precursor to the National Democratic Redistricting Committee raised “soft money” to fund redistricting litigation. To do this, Marc Elias had to circumvent campaign contribution limits imposed by the 2002 amendment to the Federal Election Campaign Act of 1974, commonly referred to as McCain-Feingold. The 2002 law imposed new contribution limits for federal election campaigns.

To fund the trust, Mark Elias sought an exemption from McCain-Feingold in 2010. He argued that redistricting didn’t have a direct effect on the outcome of particular federal elections, even though redistricting is an inherently political endeavor.

In an advisory opinion issued by the FEC to Mark Elias, the FEC declared that:

Members of Congress may solicit funds on behalf of the [National Democratic Redistricting] Trust that do not comply with the Act’s [McCain—Feingold] amount limitations and source prohibitions because the Trust’s proposed activities are not in connection with a Federal or non-Federal election [emphasis added].

This questionable decision enabled Members of Congress to legally raise unlimited sums of money from anonymous donors. With the FEC out of the way, Marc Elias and his congressional clients were clear to solicit the capital needed to fund redistricting cases.

FEC filings show the Trust was active in the 2012 and 2014 election cycles. Notably, it wasn’t active in 2016. In early 2017, Eric Holder formed the Redistricting Committee. The Committee hit the ground running, in part, because Marc Elias and Democrats had been growing the war chest since 2010.

In a 2017 Roll Call  interview with NRDC Executive Director Kelly Ward, interviewer Nathan Gonzales remarked on Ward’s departure from the DCCC and mentioned that “in 2010, it [the NRDC] was called the National Democratic Redistricting Trust.”

By absorbing the shadowy “soft-money” Trust, the Redistricting Committee appears to have permanently obscured its original funding.

Republicans Lose Redistricting—and the House of Representatives

The Democrats, whose redistricting effort has seen an impressive series of victories, have nearly a whole census cycle on Republicans.

Pennsylvania: In 2018, the Pennsylvania Supreme Court threw out a map drawn by state Republicans. The legislature drew another map, but Democratic Governor Tom Wolf refused to approve it. This resulted in the state supreme court appointing a “special master” to draw the state’s map before the 2018 midterm elections. The Democrats picked up three congressional seats, which many attribute to redrawn districts.

Virginia: In 2014, a district court ordered Virginia to redraw district 3, considered to be a racial gerrymander. A “special master” came to redraw the map in 2015, but state Republicans sued. A three-judge panel found that district 3 was not a racial gerrymander. Voters (with help from Perkins Coie) appealed this ruling at the Supreme Court, which rejected the appeal in 2016. In 2017, the Supreme Court eventually overruled the panel’s decision. The case is still pending. However, the “fair” map helped Democrats flip three seats in the House of Representatives.

North Carolina: In 2013, a lawsuit claimed that two of North Carolina’s congressional districts were racial gerrymanders and in violation of the Fourteenth Amendment of the United States. The court agreed and in 2016, ordered the state legislature to redraw the map. In the same year, the state appealed to the U.S. Supreme Court for a stay, but the court denied the request and ordered the General Assembly to draw a new map. The new map became the Democrats’ newest target. In 2017, new lawsuits challenged the map as a partisan gerrymander. A three-judge panel ordered the map redrawn again, but the U.S. Supreme Court issued a stay on the decision. The stay possibly explains why the Democrats did not pick up extra seats in the 2018 midterms (pending the outcome in the Ninth District, where an alleged illegal absentee ballot scheme may lead to a re-vote).

In the end, Republicans lost 36 seats in the House. While party dynamics and charismatic candidates play a significant role in determining the outcome of elections, there can be no doubt that a string of losses in redistricting litigation helped Democrats gain an edge. According to POLITICO:

Democrats netted at least 21 districts drawn by independent commissions or courts—getting a major boost from courts in Florida, Pennsylvania and Virginia that altered GOP-drawn maps in the past two years.

As the 2020 Census approaches, state and down-ballot elections will become even more consequential. It will take some serious effort from Republicans to combat the National Democratic Redistricting Committee’s deep pockets and Perkins Coie’s high-powered legal talent. Until the next redistricting suit starts making its way through the courts, those on the right would do well to watch Marc Elias. His movements are a good indicator of the Democratic Party’s subtler intentions.