Everywhere you looked during Donald Trump’s baseless challenge to the 2020 election, Democrats and their chief election lawyer, Marc Elias, were touting their string of victories and Trump’s desperate theories of miscounting voting machines as proof of their moral superiority. Truly, they told us, Democrats would never promote the sort of theories that George W. Bush’s opponents (anyone remember what party that was?) pushed in 2005. Then, when a 2020 Democratic House candidate in Iowa — represented by Elias — tried to get the House to throw out the vote totals and seat her, we were told that of course this is something only Republicans would do. Elias’s client, Rita Hart, is still petitioning the House to overturn the outcome, even though the Republican, Mariannette Miller-Meeks, was sworn in a month ago. Here is Elias on January 25: “I am more confident now than I was the last I talked to you that Rita Hart is going to be sworn in as the next congresswoman from Iowa (and) that she obtained more lawful votes.”
Now there is just one remaining unresolved House election, involving another Republican woman (Claudia Tenney in upstate New York’s 22d district) whom Elias is trying to bar from the House despite a 122-vote lead over Anthony Brindisi. And guess what Brindisi’s theory in court is? “In this case, there is reason to believe that voting tabulation machines misread hundreds if not thousands of valid votes as undervotes, and that these tabulation machine errors disproportionately affected Brindisi.” This is, as election lawyers not involved in the case note, far-fetched, but it is enough of a pretext for Brindisi to file an appeal based on a voting-machines-stole-my-election theory.
Now, as I have argued before when the Lincoln Project tried to drive away reputable lawyers from representing Trump, lawyers are not responsible for their clients’ causes, only what the lawyers themselves do in the course of representing them. (The same principle should apply to Michigan’s current effort to to disbar Trump lawyers). In Trump’s case, it is quite clear that things took a turn for the worse for the public interest precisely at the point when his original lawyers were chased off the case and he started deploying irresponsible people who spun wild theories of voting-machine malfeasance. If Brindisi and Hart want to pursue election contests, they can hire whatever lawyers they like. Still, it is worth bearing in mind, the next time you hear Marc Elias, that he actually has no objection whatsoever to such theories, or to tying up elections in court long after the outcome is obvious, so long as the people doing it are Democrats.