The BigLaw Attorneys Battling Over An Undecided Election

Law360 (November 4, 2020, 4:34 AM EST) -- The most heavily litigated election in U.S. history remained undecided Wednesday morning, in a tight race that could turn on a legal battle in Pennsylvania over uncounted mail-in ballots, positioning a handful of high-profile attorneys at the center of lawsuits that could determine the next president.

If it materializes, that litigation is likely to be fought by some of the most feared election attorneys on both sides of the aisle, including Jones Day's John M. Gore and Perkins Coie LLP's Marc Elias. And it could also thrust state officials such as Pennsylvania's Attorney General Josh Shapiro into the spotlight.

Pennsylvania was already the focus of a highly contentious suit in which Republicans sought to overturn a decision by the state's Supreme Court that will allow mail-in ballots to be counted up to three days after Nov. 3. That suit narrowly avoided ending up in the Supreme Court, and it could offer a preview of some of the major players and legal arguments involved in any suit brought by Republicans after the election.

President Trump made it clear early Wednesday that he intends to go to court to contest the election. He specifically mentioned Pennsylvania, which received a record amount of mail-in ballots this year but didn't start counting those ballots until election day.

"We want the law to be used in a proper manner, so we'll be going to the U.S. Supreme Court," Trump said. "We want all voting to stop. We don't want them to find any ballots at four in the morning and add them to the list." He continued by calling the ongoing counting of ballots in Pennsylvania and elsewhere "a fraud on the American public" and "an embarrassment to our country."

Jones Day was involved on the Republican side of the earlier Pennsylvania suit, as were attorneys at Porter Wright and Holtzman Vogel Josefiak Torchinsky PLLC.

Attorneys at Greenberg Traurig LLP and Dentons Cohen & Grigsby represented Democrats in the suit. Elias and Perkins Coie weren't involved in the earlier suit, but Elias is the Democrats' go-to election attorney, and it's hard to imagine him not being involved in any suit in which the fate of the election hangs in the balance, according to election experts who spoke with Law360.

Elias has handled more election lawsuits than any single lawyer on either side over the past few months, and Perkins Coie has received approximately $41 million in legal fees from Democratic organizations since 2019, according to the American Lawyer.

Jones Day has long been the Republicans' go-to law firm. Gore and several Jones Day attorneys have been involved in lawsuits on behalf of the Trump campaign and other Republican organizations over the past year.

Gore and Elias couldn't be reached for comment early Wednesday.

Meanwhile Pennsylvania AG Josh Shapiro has been warning for days that the fate of Pennsylvania's electoral votes could hinge on the outcome of a lawsuit. Shapiro told the Pittsburgh Post-Gazette in early October that he anticipated Trump would launch a "unique set of attacks on our democracy" on election day and said he "will be ready" to fight back if necessary.

Shapiro drew criticism for tweeting on Saturday that Trump would lose Pennsylvania's election more than 24 hours before the state's polls closed. 

Shapiro represented Pennsylvania's Secretary of State, Kathy Boockvar, in the earlier lawsuit. Early on election night, Pennsylvania state Republican lawmakers called on Boockvar to resign over what they said was her mishandling of the election.

Unlike the earlier suit, in which Republicans sought to prevent mail-in ballots from being counted if they're received after Nov. 3, the ballots that will likely decide the race have already been received but simply haven't been counted yet. As a result, the state is currently showing Trump with a lead, but roughly two million uncounted mail-in ballots could still tip the state to Biden.

Over the past few days President Trump has explicitly said he won't tolerate that situation, and warned on Tuesday he'll take to the courts to prevent an early lead from being overturned in Pennsylvania. As soon as the polls close, Trump said on Sunday at a rally in Pennsylvania, "We're going in with our lawyers."

Election experts and attorneys have previously warned that this exact situation could spark civil unrest while Pennsylvania counts its votes. A potential lawsuit would be hard-fought and could even result in a legitimacy crisis for the Supreme Court if it ends up there, they say.

If it's filed, that lawsuit would presumably seek to somehow prevent additional mail-in ballots from being counted, if Trump's comments are any indication.

The earlier suit over the Pennsylvania Supreme Court decision raised eyebrows among election watchers due to the sweeping argument advanced by Republicans: state courts do not have the ability to review decisions made by state legislatures on how to carry out federal elections.

That argument could radically reshape election law if the Supreme Court agrees with it, election experts said, but it's unclear how that argument would be used in the current situation, in which most of the ballots in question were received before election day but simply have yet to be counted.

--Editing by Ed Harris.

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