Marc Elias is an election-law expert who represents all of the Democratic Party committees, and has argued redistricting cases before the Supreme Court. He sat down with Andrea Drusch and Ally Mutnick to discuss Democrats’ plans to combat Republican gerrymandering efforts.
As Democrats look ahead from 2016 losses, how important is it to engage in fights over redistricting and voting rights?
If you look at the arc of history … there was a bipartisan consensus that we ought to be finding ways to make voting more practical in people’s lives. All of that changed after 2008. The lesson the Republican Party took away appears to be that they are not going to be able to convince young voters, minority voters, and others that they ought to vote Republican, so instead they want to make it harder for them to vote at all.
Since then, those efforts have not slowed; they have actually sped up. And now I fear that it is being egged on by the ridiculously false claims that Donald Trump has made about illegal voting. I think that if we don’t find a way to stop the attacks on voting rights, and we don’t find the way to stop the problem of unfair and unconstitutional redistricting, then we’re going to have a less democratic result, and I think that is bad for the Democratic Party.
Is it also personal for you?
If there is one sort of legal struggle of my career right now, it is this one, fighting voter-suppression efforts and ensuring the right to vote. I ask myself what it would be like to be on the other side, to wake up and say, “Today I’m going to figure out another way to keep 17-year-olds from pre-registering. And maybe I’ll come up with an ID law that lets you use hunting licenses but not state-issued college IDs.” Yes, in some ways it’s better for Democrats in terms of winning elections, but also it’s the morally right thing.
Are there Republicans who are a part of the effort to make voting easier?
If you look at the evolution of my comments on this, I used to say there are some who are trying to make voting harder. … It is now hard to not conclude that it is … the Republican Party that is trying to make voting harder. But that doesn’t mean that every Republican is monolithic. Trevor Potter worked with me a few years ago on an effort to modernize voter registration. He was John McCain’s general counsel for the presidential campaign.
What are the pending court cases that could substantially affect the way the lines are drawn in 2021?
On Dec. 5, I argued two Supreme Court cases. One was the Virginia redistricting case, which just came down, but will now be back before the three-judge panel. It involves statehouses, but I think you will see it spur additional litigation this election cycle, because what Virginia was doing was not wholly unusual for how Republicans went about redrawing some of these maps. Case two is North Carolina, still awaiting a decision in the U.S. Supreme Court, that involves the congressional districts 1 and 12. You also have a series of partisan gerrymandering cases. The one that is furthest along is the one in Wisconsin.
How likely is it that the Supreme Court makes a partisan gerrymandering standard in some form this cycle?
I think we are going to get a partisan gerrymandering cause of action. … The question is what the standard is, and which is of these cases is the right way to set it.
If the Court does issue a standard, will that create a flurry of new lawsuits?
Certainly if the Supreme Court adopts a theory of partisan gerrymandering that is an actionable standard, then you’re going to see that applied to all kinds of districts where you can’t say that race was used as a proxy, but they were partisan.
It sounds like a game of Whac-A-Mole. Do Democrats have the resources to fight all these fights at once?
I hope we do but, I’m not sure we do. … The Republicans had a multimillion dollar—probably in excess of $100 million—plan around redistricting for 2010. We don’t have nearly anything to match that. … [Democratic National Committee Chairman] Thomas Perez is, in addition to being former Labor secretary, one of the leading lights in the area of voting rights. He was the head of the civil-rights division in the Department of Justice, he’s a lawyer, he knows an enormous amount about voting rights and these things, so I’m optimistic that the DNC will also play a role.
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