Campaign Lawyers Are Preparing for Another Recount Fight
Seated a few feet away from each other, Robert Bauer and Ben Ginsberg might as well have been finishing one another’s sentences.
“I note that Ben said he agreed with me and I think we should end the interview right here where we’re clearly at a very harmonious place,” Bauer said in jest during a 2009 panel on campaign legal disputes at the College of William & Mary in Williamsburg, Virginia.
If the 2012 presidential campaign ends in a recount and legal challenges, Bauer, President Barack Obama’s attorney, and Ginsberg, Republican Mitt Romney’s counselor, will be on opposing sides leading the clash that follows.
The pre-election maneuvering already has begun.
Democrats in Ohio are seeking federal court intervention over late changes that Republican Secretary of State Jon A. Husted made to provisional ballots, those cast by voters whose eligibility is questioned.
Husted’s directive on Nov. 2 requires voters, instead of poll workers, to record the form of identification used with the provisional ballot. That may increase the number of provisional ballots deemed invalid because voters aren’t familiar with the forms and could make mistakes, according to Subodh Chandra, an attorney representing plaintiffs, including the Northeast Ohio Coalition for the Homeless, in a court filing seeking clarification to Husted’s directive.
In Florida, Democrats filed two federal lawsuits yesterday after the state’s Republican governor, Rick Scott, declined to extend early voting hours after reports of long lines in polling places around the southern part of Florida and a temporary closing after a bomb threat at an Orlando precinct.
A federal judge extended hours in the case of the bomb threat; election officials in five other counties temporarily allowed voters to cast absentee ballots in person, a practice that will continue through Election Day tomorrow.
Voting machine malfunctions, absentee ballots and even the weather are also on the radar for each campaign’s legal team, according to Edward Foley, a professor at Ohio State University’s Moritz College of Law in Columbus.
With a close race, those issues pose potential legal challenges that may delay the results of the election, he said. “There is a chance we have a dynamic where we don’t have an answer about who won on Tuesday night or Wednesday morning,” Foley said. “The likelihood of this has risen as the race has gotten tighter.”
Bauer, 60, and Ginsberg, 61, are described by friends and colleagues as embodying the rare combination of top-notch legal minds with equally astute political instincts.
They are now applying those dual skills as they oversee each party’s program for monitoring voter suppression and intimidation charges or attempts at voter fraud. With the presidential race too close to call, they are also girding for a courtroom showdown similar to 2000.
“Post-election litigation is probably the most nerve- racking, tension-inducing subject of all for campaigns,” Ginsberg, a central player in the 2000 Florida recount that ended with a U.S. Supreme Court decision that made George W. Bush president, said during the 2009 panel discussion. “The stakes are higher than they ever are, nerves are more frayed than they ever are and sleep is more absent than ever.”
Bauer, a partner in the Washington office of Perkins Coie LLP, and Ginsberg, who is at Patton Boggs LLP, declined to be interviewed for this story.
The Democratic National Committee, where Bauer also serves as general counsel, has invested millions of dollars on its legal operation and will count on thousands of attorneys in the days ahead, according to a person familiar with their operation.
Ginsberg is ensuring that the Republican team has the resources and infrastructure it needs should a recount or challenge arise, according to a Romney official.
John R. Phillippe Jr., chief counsel of the Republican National Committee, sent a letter to the top election officials in six states on Nov. 1 after reports surfaced of electronic voting machines switching votes to Obama from Romney unintentionally.
“We request the Iowa Secretary of State’s Office do all it can to further that investigation and to ensure that any illegal activity conducted by Democratic operatives does not taint the fairness of the 2012 general election,” he wrote.
Bauer, in a memo circulated last week, ticked off reports of contractors accused of fraudulent voter registration, training materials in Wisconsin and Iowa containing false information for volunteers, and accusations that an anti-tax Tea Party-aligned group that aims to identify voter fraud was working directly with Republican Party leaders.
“Either directly, through its vendors, or in close association with allied organizations, the Republicans are attempting to disrupt the electoral process and create obstacles to the fair and effective exercise of the right to vote,” Bauer wrote.
The memo represents a tactic Bauer has used before: putting his adversaries on notice that he’s watching them. He sent similar warnings to Hillary Clinton’s allies in her 2008 Democratic primary race against Obama and this year to former Bush adviser Karl Rove’s Crossroads GPS, an advocacy group that doesn’t disclose its donors.
On Oct. 30, Bauer sent a letter to Wisconsin Attorney General J.B. Van Hollen requesting that his office look into the Romney campaign’s election training materials, as well as the activities of True the Vote, the group that sends volunteers to the polls to identify voter fraud.
Bauer and Ginsberg first met while representing opposing clients during a precedent-setting 1984 U.S. House recount fight in Evansville, Indiana. The legal clash became so fierce that the district embroiled in the fight was dubbed the “Bloody 8th.” A Democratic-controlled House awarded the seat to their candidate after five months of legal machinations.
Twenty years later, both were key players in the 2004 presidential campaign between Senator John Kerry, the Democratic nominee, and Bush. The White House race was the first to follow the Supreme Court’s 2000 recount decision, which spawned an expansion of the legal apparatus utilized by presidential campaigns.
In the 2004 contest, Bauer prepped SWAT-like teams of lawyers to be ready for litigation, and he dispersed thousands of legal recruits to polling stations.
This year, similar teams, supervised by Bauer and Ginsberg, will be ready to deploy from both parties at a moment’s notice on or after Election Day.
“They’re total professionals who have been at this a long time,” said Richard H. Pildes, a constitutional law professor at New York University, who has worked with Bauer and hosted Ginsberg as a speaker in his courses.
Ginsberg, a graduate of University of Pennsylvania in Philadelphia, started his career as a journalist, writing for newspapers, including the Boston Globe and the Philadelphia Evening Bulletin. He left reporting for Georgetown University’s law school in Washington and joined Baker & Hostetler LLP after his graduation in 1982. After the Indiana recount fight, Ginsberg held jobs at top Republican political committees, including the Republican National Committee and the party’s House and Senate campaign arms.
He joined Patton Boggs in 1993 while continuing to serve in an advisory capacity to Republican groups and political committees. By 2000, as national counsel for Bush’s campaign, he was at the center of the legal strategy that led to the Republican’s court-declared 537-vote victory in Florida.
“Ben is at his peak in the high-pressure moments leading up to an election and immediately after an election,” said Edward Newberry, managing partner of Patton Boggs. He described Ginsberg as “intense and completely unflappable.”
Ginsberg has mentored young lawyers, including Katie Biber, a graduate of Harvard University’s law school who first worked with him during the 2004 campaign and is now general counsel to Romney’s campaign.
“He’s an ideal partner in terms of training, bringing people along and focusing on developing the talents and skills of young lawyers,” said Newberry.
Bauer began his work for Obama when the president was the junior senator from Illinois. In 2007, Bauer became the general counsel of Obama’s presidential campaign.
A 1976 graduate of the University of Virginia law school in Charlottesville, Bauer worked his way through the legal ranks of the Democratic Party campaign committees. He has served as a top lawyer for the Senate and House Democratic campaign committees, as well as for former New Jersey Senator Bill Bradley’s 2000 bid for the party’s presidential nomination.
Bauer was named as Obama’s White House counsel at the end of 2009 and served in the role for 18 months, guiding the administration’s legal team through the final stages of the health-care overhaul, a slate of judicial nominations and various congressional probes.
“He understands that his role is as a lawyer, but he brings that extra capability of understanding the political and communications context of what he’s doing,” said Kimberley Harris, a partner at Davis Polk LLP who served as special counsel to the president under Bauer.
Pildes, who has worked with Bauer in academia and on the campaign, described him as a voracious reader -- they most recently traded views on Michael J. Sandel’s “What Money Can’t Buy,” a book about the role of markets on a democratic society.
Bauer’s also Internet-savvy -- before joining the White House, he regularly updated his blog on campaign finance.
On Bauer’s last day as the administration’s top lawyer in June 2011, he arrived at a routine legal team meeting with a surprise -- parting gifts for the dozen attorneys who worked for him. For Bauer’s assistant, the gift was a miniature catapult and a miniature boss. The boss fit perfectly into the catapult for launching.
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