Law360 (November 2, 2020, 6:26 PM EST) -- From ex-
U.S. Department of Justice brass to former top White House lawyers, Joe Biden has assembled a team of Democratic legal heavyweights to represent his campaign through what experts expect could be a highly contested presidential election.
Elections have been rife with litigation since the Bush v. Gore fiasco in 2000, but the coronavirus pandemic has led to an explosion of lawsuits across the country. Stakeholders are clashing over how to make sure voters can safely get to the polls while ensuring election integrity through an unprecedented public health crisis that makes the mundane act of queuing up to the polls a potentially deadly risk.
Some legal scholars have raised the possibility that, like in the 2000 presidential election, the winner of this contest won't be immediately clear due to the time it will take to process and count the historic number of mail-in ballots.
But Loyola Law School, Los Angeles professor Justin Levitt, who has been tracking pandemic-related litigation over the election, said it's unlikely that there will be a repeat of the 2000 election battle between George W. Bush and Al Gore, which he called a "black swan event" that came down to 537 votes in the Sunshine State.
"We had an incredibly rare probability event," he said of the 2000 election. "The chance that it happens twice is that much more rare and the fact that we've had so much litigation so far makes it rarer still."
In recent weeks,
The New York Times and other media outlets have disclosed that Biden's campaign has tapped a number of powerful Democratic attorneys to form a kind of legal phalanx to battle through what the litigation trackers call "perhaps the most litigated election season in the last two decades."
With President Donald Trump counting on
his own star legal team heading into Election Day and beyond, Law360 looks at some of the key attorneys, firms and groups working for the 2020 Biden campaign.
Dana Remus
General Counsel, Biden for President
Dana Remus
Coordinating the legal response is the campaign's general counsel, Dana Remus, who also worked in President Barack Obama's White House and later served as the top lawyer for Obama's foundation.
Despite rising in the Democratic firmament, Remus also has worked closely with conservative jurists. The Yale Law School graduate clerked for
U.S. Supreme Court Justice Samuel Alito Jr. and co-taught with Sen. Mike Lee, R-Utah, a class in Duke University School of Law's 2019 D.C. Summer Institute on Law and Policy, a program for undergraduates and working professionals considering law school.
She also clerked for Judge Anthony J. Scirica of the
U.S. Court of Appeals for the Third Circuit and was an associate at
Cravath Swaine & Moore LLP.
A major concern for Remus will be fending off Republican challenges to alternative voting methods, such as mail-in ballots or curbside voting, as a response to the risks that the coronavirus poses to in-person voting. Trump has called such methods a "scam" designed to help Biden.
The issue has already reached the U.S. Supreme Court. This past week, the justices blocked a deadline extension for mail-in ballots in Wisconsin, while upholding extensions in Pennsylvania and North Carolina. But the litigation is far from over, and Republicans are likely to ask the court to throw out ballots received after Election Day in certain battleground states.
Robert Bauer
Senior Adviser, Biden for President
Robert Bauer
NYU law professor Robert Bauer served as White House counsel under Obama. Bauer replaced Gregory Craig as Obama's top lawyer in 2009 and served until 2011. Upon his departure, Obama praised him as a "good friend" and "trusted adviser."
Bauer has been a fierce critic of the Trump administration, attacking current White House Counsel Pat Cipollone for his "remarkably partisan performance" during Trump's impeachment trial, as well as the "counterfeit product" of Trump's now-shuttered voter fraud task force. At the start of state lockdowns in March, Bauer called for increased mail-in ballots and $2 billion in congressional funding for state election preparation.
'Special Litigation' Unit Ready for State-Level Response
Biden has lined up a top-flight team to wage the likely state-by-state legal fights of local voting and counting rules led by Marc Elias of
Perkins Coie LLP, the top lawyer on Hillary Clinton's 2016 campaign, and Obama's former attorney general, Eric Holder, The
Associated Press has said. In assembling a robust legal team ahead of the election, Biden is likely trying to avoid the last-minute rush to the courthouse that followed the 2000 election, when litigation broke out in Florida over a recount.
Marc Elias
Perkins Coie LLP
Marc Elias
Marc Elias has represented Democratic and liberal interests in a number of high-profile, election-related cases. He's defending Priorities USA and Bully Pulpit Interactive LLC against defamation claims brought by Roy Moore, a former Republican nominee for an Alabama
U.S. Senate seat, and has presented Democratic and minority plaintiffs in legal battles over a number of state election laws.
Eric Holder
Chairman, National Democratic Redistricting Committee
Eric Holder
Eric Holder was on the legal team that defended Pennsylvania's redrawn congressional map after an earlier version was struck down as a partisan Republican gerrymander by the
Pennsylvania Supreme Court in January 2018.
The special unit overseeing the litigation at the state level may already have the heavy lifting behind it. The hundreds of lawsuits filed around the country since the pandemic started will actually make it less likely that the U.S. Supreme Court, or any other court, will be forced to declare a winner like it did in 2000.
"Those cases got resolved in June, July, August and September, and so that means there's less to fight about in October and November," said Loyola's Levitt. "The big questions about how most Americans are going to cast or count ballots … those are already decided."
So even if the winner isn't clear on election night, that doesn't mean there's reason to panic, Levitt said. It will simply be up to the "far more democratic, far more boring" exercise of officials counting ballots, rather than explosive litigation. "I have no doubt that there will be litigation after the election, but I have real doubts about how much of that will be meaningful."
National Litigation Team Boasts Ex-Clinton, Obama Officials
Nevertheless, if the election winds up in the Supreme Court, Democrats fear a repeat of the 2000
Bush v. Gore 
decision in which a conservative majority ended the Florida recount and effectively sealed the presidency for Bush.
To prepare, Biden's campaign has organized a "national litigation team" consisting of former U.S. Solicitors General Walter Dellinger, now a professor emeritus at Duke University School of Law, and Donald Verrilli of
Munger Tolles & Olson LLP, according to the AP. Dellinger and Verrilli served as the government's top Supreme Court lawyers for the Clinton and Obama administrations, respectively.
"In 2000, we were not in the habit of having litigation over national elections," said Barry Richard of
Greenberg Traurig LLP, who led the Florida legal efforts for President George W. Bush's campaign. "We didn't have a history of that."
As Bush's top lawyer in Florida in 2000, Richard oversaw 47 lawsuits across the state in the frantic litigation over the recount. "Everything was operating at light speed," Richard said. "You could be in the trial court and the appellate court a few hours later."
Campaigns have learned the lessons of Bush v. Gore and now "everybody has lawyers on call all the time," Richard said.
"I'm sure what they're doing right now is having teams of lawyers studying the issues that are currently arising and likely to arise," he said. "There are probably people even preparing rough drafts of briefing right now, and that's what they should be doing."
Walter Dellinger
Douglas B. Maggs Professor Emeritus of Law, Duke University
Walter Dellinger
Dellinger, also a partner in the appellate practice at
O'Melveny & Myers LLP, was the acting U.S. solicitor general for the 1996-97 Supreme Court term. In that role he argued nine times before the Supreme Court on a number of constitutional issues like the line-item veto, the Religious Freedom Restoration Act and more.
Since then, Dellinger has appeared before the Supreme Court numerous times in his private practice. He clerked for Justice Hugo Black during the 1968 term.
Before becoming Clinton's acting solicitor general, he was an assistant attorney general and head of the Office of Legal Counsel in his administration, where he advised on "loan guarantees for Mexico, on national debt ceiling issues, and on issues arising out of the shutdown of the federal government," according to his law school profile.
Donald Verrilli
Munger Tolles & Olson LLP, partner
Donald Verrilli
Verrilli was solicitor general from June 2011 to June 2016, arguing more than 50 cases before the high court, including decisions upholding the Affordable Care Act and recognizing marriage equality (Obergefell v. Hodges).
Since joining his current firm after his government service, his appearances before the Supreme Court include the successful defense of the constitutionality of Puerto Rico's Financial Oversight and Management Board.
Verrilli is the lead attorney for the Democratic Party in a blockbuster case pending before the Supreme Court about whether Pennsylvania can count mail-in ballots received up to three days after the election. Republicans asked the court to strike down the extension and have the battleground state throw out ballots received after Election Day.
Should election disputes move from state to federal courts, Dellinger and Verrilli will likely lead the Biden team as appeals wind their way to the Supreme Court.
Levitt, however, said earlier rounds of litigation this summer may have dampened the chances that the Supreme Court will ultimately decide who won the election.
Chief Justice John Roberts and Justice Brett Kavanaugh were part of the Republican legal team supporting Bush in the fight, as was Justice Amy Coney Barrett, who was confirmed Oct. 26.
During her confirmation hearings, Justice Barrett refused to say whether she would recuse in an election case, saying that would be "short-circuiting" the normal recusal process.
Levitt said Biden's and Trump's legal teams are likely preparing for such a scenario, however unlikely.
"I think the legal teams are preparing for exceedingly unlikely contingencies, much like the Department of Defense has all kinds of playbooks, all kinds of military plans, for all types of contingencies, even those that never happen."
The Biden campaign did not return a request for comment from Law360 on its legal defense operations.
--Editing by Orlando Lorenzo.
--Update: This story has been updated to adjust Walter Dellinger's affiliation.
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