Joe Biden’s campaign is establishing a major new legal operation, bringing in two former solicitors general and hundreds of lawyers in what the campaign billed as the largest election protection program in presidential campaign history.
Legal battles are already raging over how people will vote — and how ballots will be counted — this fall during the pandemic, and senior Biden officials described the ramp-up as necessary to guard the integrity of a fall election already clouded by President Donald Trump’s baseless accusations of widespread fraud.
The new operation will be overseen by Dana Remus, who has served as Biden’s general counsel on the 2020 campaign, and Bob Bauer, a former White House counsel during the Obama administration who joined the Biden campaign full time over the summer as a senior adviser.
Inside the campaign, they are creating a “special litigation” unit, which will be led by Donald B. Verrilli Jr. and Walter Dellinger, two former solicitors general, who are joining the campaign. Hundreds of lawyers will be involved, including a team at Democratic law firm Perkins Coie, led by Marc Elias, which will focus on the state-by-state fight over vote casting and counting rules. And Eric Holder, the former attorney general in the Obama administration, will serve as something of a liaison between the campaign and the many independent groups involved in the legal fight over the election, which is already raging in the courts.
“We can and will hold a free and fair election this fall and be able to trust the results,” Remus said in an interview.
Bauer, who was general counsel on both of Barack Obama’s presidential campaigns, said the operation would be “far more sophisticated and resourced” than those during past campaigns.
Remus and Bauer outlined a multipronged program that will include some elements common to past presidential campaigns, such as fighting off voter suppression and ensuring people understood how to vote, and some more unique to 2020, such as administering an election during a pandemic and guarding against foreign interference.
“There are,” Bauer said, “some unique challenges this year.”
The process of voting is especially complex now, as multiple states have raced to expand the ability to vote by mail because of the coronavirus. At the same time, Trump has repeatedly and falsely accused that process of being riddled with fraud, even as he himself has voted by mail in the past and Republican Party officials have encouraged supporters to cast ballots that way. Trump went even further this month when he suggested that his supporters could stress-test the system in North Carolina by voting twice — an illegal act.Trump has dabbled in baseless questions of election fraud for years. He has suggested that dead voters helped reelect Obama in 2012. He has made unsubstantiated claims putting the blame for his loss in New Hampshire in 2016 on voters’ being bused into the state. His White House established a voting-integrity commission that disbanded in 2018 without uncovering evidence of widespread voter fraud.
This year, as voting by mail expands, Trump has sought to sow doubt about its legitimacy, trying to draw a shaky distinction between universal mail voting and jurisdictions that allow more limited absentee balloting only when a person cannot vote in person.
“It’s going to be fraud all over the place,” Trump said without evidence in June, adding, “This will be, in my opinion, the most corrupt election in the history of our country, and we cannot let this happen.”Biden officials say they are trying to strike a delicate balance, responding to Trump’s wild theories without spreading them further.
“A lot of what Trump and his allies would have us do is amplify their disaster scenarios,” Bauer said. “We’re not going to get caught up in alarmist rhetoric they are using to scare voters.
“The constant return to the issue of fraud is itself a voter suppression tool,” he added.
Trump’s talk of fraud drew a notable Republican rebuke last week, when Benjamin L. Ginsberg, one of the party’s top elections lawyers for decades, wrote a scathing Washington Post op-ed article.
“The president’s rhetoric has put my party in the position of a firefighter who deliberately sets fires to look like a hero putting them out,” Ginsberg wrote, adding, “Calling elections ‘fraudulent’ and results ‘rigged’ with almost nonexistent evidence is antithetical to being the ‘rule of law’ party.”
Mandi Merritt, a spokeswoman for the Republican National Committee, accused Democrats of wanting to “turn our election into an out-of-control all-mail-based election” without sufficient safeguards.
“Republicans have always supported absentee voting with safeguards in place and want to make sure every valid vote is counted and our elections are free, fair and transparent,” Merritt said. “What we oppose is a rushed and forcibly implemented nationwide vote-by-mail experiment that would eliminate those safeguards, invite fraud and weaken the integrity of our elections.”
The RNC said it was fighting Democratic efforts that would loosen signature-matching requirements for absentee ballots, eliminate witness requirements and allow absentee ballots to be collected and turned in by third parties, a process the Republicans deride as “ballot harvesting.”
“There is a clear difference between what Democrats are pushing this cycle and a typical absentee ballot request process,” Merritt said.
For the first time in decades, the national Republican Party can mount campaigns against alleged voter fraud without prior court approval. There had been a court-imposed ban on voter-fraud operations since the early 1980s after courts found repeated instances of the party’s working to exclude minority voters in the name of preventing fraud.
State and local governments administer elections in the United States, but the Biden campaign is watching the federal government’s actions under Trump closely. Congressional Democrats are investigating changes at the Postal Service put in place by Louis DeJoy, a Republican megadonor installed this year as postmaster general, that could affect mail-in voting.
“I am not engaged in sabotaging the election,” DeJoy told Congress last month.Bauer said that while every incumbent administration uses the government to showcase its accomplishments, there were unique concerns about how Trump was leveraging the powers of the federal government to his own political ends. Trump, for instance, held his convention acceptance speech on the lawn of the White House — “We’re here, and they’re not,” he declared — despite a history of past chief executives’ refraining from so explicitly using a symbol of the presidency for politics.
“The scale of Trump’s conversion of the federal government into an arm of his political campaign is truly remarkable,” Bauer said. “It is appalling and raises a host of questions of both the trashing of norms and the skirting and violating of rules.”There are already a number of legal fights in progress in key battleground states, including Florida, where an appeals court ruled Friday that Floridians who had completed sentences for felonies would have to pay fines and fees before voting, and Wisconsin, where the state Supreme Court halted the printing of absentee ballots last week over legal challenges from third-party candidate. A ruling in Wisconsin could come as early as Monday.
Biden officials said there were thousands of lawyers and volunteers already working on voter-protection efforts to various degrees. Remus said the communications side of the Biden operation would encourage voters to request ballots soon, make a voting plan and cast a ballot as soon as possible.
“Just do everything early this cycle,” she summarized the message.