These lawyers remade the Supreme Court. Now they’re fighting to limit voting. – NBC News

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Way back in February, before the pandemic, the lockdowns and the epic lines at polling places, election officials in the battleground state of Michigan got a letter. It said voter registration in 19 counties was “abnormally” high, indicating that they weren’t maintaining their rolls.

“Michigan’s failure to provide accurate voter rolls violates federal law [and] jeopardizes the integrity of the upcoming 2020 federal election,” the letter warned. If officials didn’t clean up rolls “bloated with ineligible voters,” they’d be taken to court.

The group spearheading the letters, called the Honest Elections Project, describes its mission as a nonpartisan effort to fight fraud, protect every American’s right to vote and instill faith in the electoral process.

“Elections should be above the political fray,” Executive Director Jason Snead told NBC News. “We’re talking about elections from a point of principles, not politics.”

Behind Snead’s group, however, is a network that includes some of Washington’s most powerful conservative figures, with close ties to the Republican Party and the Trump administration. Hundreds of pages of financial records and other documents, some not previously reported, lead back to Leonard Leo, an adviser to President Donald Trump and former executive vice president of the influential conservative legal group known as the Federalist Society.

March 15, 201804:59

Although he doesn’t hold public office, Leo has spent three decades helping to shift the American judiciary, including the Supreme Court, to the right. Now his network, backed by millions of dollars in untraceable “dark money,” is working to reshape the American vote.

Alongside lawyers who also work for the Republican National Committee, Leo and his team during this election cycle have teed up lawsuits about voter rolls, run ads and filed court briefs to support litigation against mail-in voting. Leo is also on the advisory board of Lawyers for Trump, which is recruiting a battalion of lawyers ready to go to court in the wake of the election.

Whatever the outcome of the race, some see Leo’s efforts as part of a longer-term strategy by conservatives to hold onto power in the face of demographic shifts that aren’t going their way.

“It’s a small circle of Republican advisers and donors who are all wrapped up in the same project,” said David Daley, the author of “Ratf**ked,” a book about gerrymandering, and a senior fellow at FairVote, which advocates for electoral reform. “The project is using redistricting, voting rights and the courts to ensure long-term Republican power.”

Since 1988, Republicans have won the popular vote in a presidential election just once, in 2004. In March, Trump said on Fox & Friends that if the $3.6 billion congressional Democrats had requested to support elections during the pandemic had been approved, “you’d never have a Republican elected in this country again.”

“The president always says the quiet part out loud,” said Sarah Longwell, a veteran Republican political strategist who broke with the party to co-found Republican Voters Against Trump.

Longwell pushes back against the idea touted by some liberals that the GOP has been engaged in a long-term effort to disenfranchise voters.

She spent years in Republican circles, she said, and “never heard anybody talk about suppressing the vote.” But in this cycle, she said, “the lengths a lot of the Republicans are going to affect voting, those to me do look suppressive. Nakedly suppressive.”

‘Bloated’ voter rolls

In June, the Honest Elections Project made good on its threat over voter rolls, joining a local conservative activist to file suit in Michigan. Trump won the state by just 12,000 votes in 2016, the thinnest margin in the country.

Michigan’s Democratic secretary of state, Jocelyn Benson, who is fighting the lawsuit, rejects the characterization of state rolls as “abnormally” high. A spokesperson for her office said the project’s methodology, which compares current voter registrations to slightly older population estimates, “misleads the public and misunderstands our nation’s laws.”

Leonard Leo, then executive vice president of the Federalist Society, speaks to the media at Trump Tower in New York on Nov. 16, 2016.Carolyn Kaster / AP file

“The goal is 100 percent voter registration, and any suggestion otherwise is antithetical to democracy,” the spokesperson said. “Michigan’s registration rates are strong because we have had one of the best motor-voter systems in the country.”

Snead rejected claims that the suit seeks to suppress the vote, pointing out that Michigan now allows same-day voter registration.

“I would strongly object to the notion that we’re trying to stop people from voting when we’re talking about cleaning up voter rolls,” Snead said. “What we’re talking about should be no more controversial than throwing out a spoiled container of yogurt.”

Michigan is among at least six swing states that have faced litigation this year over their voter rolls from conservative groups who said keeping voter rolls “clean” protects against election fraud. Voting rights advocates describe them as “purges” that disenfranchise low-income, minority and young voters, who tend both to move more and to vote Democratic.

In a statement, the Trump campaign’s deputy national press secretary, Thea McDonald, said: “President Trump has clearly and consistently advocated for stable, understandable rules that will give every American faith in the election’s results.

“Democrats have duped the mainstream media into advocating for states to ignore the fact that their voter rolls are inaccurate and outdated,” McDonald said, “so that there are tens of thousands unclaimed ballots out there for harvesters to snatch and illegally cast, diluting the will of every eligible voter.”

The rolls should be kept up to date, experts said, but officials need to weigh the risk of fraud against that of disenfranchisement.

“There’s very, very little evidence of voter fraud based upon voter rolls,” said Paul Rosenzweig, a security expert and senior fellow at the R Street Institute, a right-leaning think tank. “There’s a lot of evidence that purging voter rolls ends up purging legitimate voters.”

Claims of widespread voter fraud have been largely debunked by experts, including Trump’s own commission. The organization perhaps best known for asserting them is the Heritage Foundation, whose voter fraud database Snead managed before he moved to the Honest Elections Project. Last year, he was also in Heritage’s private election fraud briefing with Republican secretaries of state and active members of the Justice Department, as ProPublica first reported.

While Snead insists that his organization doesn’t fight for either party, the lawyers working with him are also leading the Republicans’ legal battle over rules for the 2020 contest.

William S. Consovoy, a former clerk to Supreme Court Justice Clarence Thomas, is the head of a boutique Washington, D.C., law firm whose clients include the Republican National Committee and the Trump campaign. His firm has been paid $2 million this year for legal work on behalf of the Republican National Committee and the campaign, according to election filings, which included litigation against mail-in voting in Wisconsin. He is also one of Trump’s private attorneys.

William S. Consovoy, an attorney for President Donald Trump, leaves the federal courthouse in Washington on July 12, 2019.Manuel Balce Ceneta / AP file

Before helping Trump with his fight to keep his financial records secret, Consovoy was on the winning side of the Supreme Court case that gutted a key section of the Voting Rights Act, which had prevented areas with histories of racial discrimination from changing their voting rules without federal approval.

Jason Torchinsky, listed as a plaintiff’s counsel on the Michigan lawsuit with Consovoy, is a well-known lawyer for conservative dark money groups, including several linked to Leo. He has also represented the Republican National Committee in the past, and he is general counsel for the National Republican Redistricting Trust, the GOP group gearing up to do battle over redrawing state legislative and House district maps in 2021. In September, he represented Pennsylvania’s GOP state senators in their unsuccessful Supreme Court petition to block the state’s counting of late mail-in ballots.

Further behind the scenes is Leo. A dapper Washington figure who wears distinctive round glasses, he has played a role in placing every one of the six conservative justices on the Supreme Court. In 1991, two years out of law school, he helped prep Thomas for his confirmation hearings.

This year, Leo’s network helped to push the confirmation of the court’s newest member, Justice Amy Coney Barrett. Justice Ruth Bader Ginsburg died Sept. 18, creating a vacancy. Leo’s network immediately pledged to spend millions to advocate for Trump’s right to fill the vacancy before the election.

The White House said in a statement that Barrett and Leo didn’t speak “after the vacancy arose.”

“As President Trump has said, he has no more solemn obligation and no greater honor than to appoint Supreme Court Justices and, as such, it was his decision alone to nominate this well-qualified jurist,” White House deputy press secretary Judd Deere said.

Should the election go to the high court, as many think it will, the justices Leo helped to seat will decide it.

Soft power

Leo’s influence came from his position at the top of the Federalist Society, which he was instrumental in building. Thirty years ago, the organization was a scrappy island for conservatives in what they viewed as a sea of left-leaning legal institutions. Today, its 70,000 members range from law school students and leading legal scholars to Supreme Court justices and Trump’s personal attorneys.

The Federalist Society doesn’t litigate or take policy positions. It doesn’t have to, because its members have come to occupy positions of power across the legal landscape, said Steven Teles, a political science professor at Johns Hopkins University who wrote a book about the conservative legal movement.

“That’s where a lot of the power comes from,” he said. “It can coordinate, even in an informal way, across boundaries that government often tends to stovepipe.”

Oct. 28, 202002:57

Leo moved smoothly across those borders. When a seat on the Supreme Court opened up under a Republican president, he’d take leave from the Federalist Society to organize “the outside coalition efforts,” as he did with the confirmations of Justice Samuel Alito and Chief Justice John Roberts.

Until recently, he worked largely “behind the scenes,” said Amanda Hollis-Brusky, an associate professor of politics at Pomona College in Claremont, California, and the author of a book about the Federalist Society. “Leo’s influence really hasn’t been fully felt until the Trump administration.”

It began during the 2016 campaign, after the death of Supreme Court Justice Antonin Scalia that February.

Don McGahn, a longtime Federalist Society member who served as the Trump campaign’s counsel and would become the White House counsel, realized early that the judiciary could help rally a fractured Republican Party behind a controversial candidate. He pulled together a tight team to talk with Trump about who should fill Scalia’s seat.

In March 2016, Leo had a quiet meeting with Trump at McGahn’s D.C. law firm, Jones Day. Soon after, the Trump campaign did something unheard of: It released a list of potential Supreme Court nominees, a signal to conservatives that he would do right by them with the judiciary.

“It ended up being the single biggest issue that brought Republicans home to someone they were largely troubled by,” Senate Majority Leader Mitch McConnell, R-Ky., told The New York Times.

Former White House counsel Don McGahn arrives at the Justice Department on May 9, 2019.Andrew Harnik / AP file

Leo has always insisted that his mission is intellectual.

“I’m engaged in the battle of ideas, and I care very deeply about our Constitution and the role of courts in our society,” Leo told The Washington Post in the paper’s investigation into his work. “And I don’t waste my time on stories that involve money and politics.”

But money and politics have been crucial to his success.

The network

Not long after Trump’s victory, Leo stood in the gilded lobby of Trump Tower after a meeting with the president-elect.

Beside him was Kellyanne Conway, Trump’s campaign manager and counselor. Leo and Conway knew each other well. Her husband, George, was a longtime Federalist Society member; he has since become one of the right’s most ardent “Never Trumpers.” And according to ethics filings, in the year before she joined the administration, she did consulting work for at least seven companies and nonprofits with close ties to Leo.

In addition to Leo’s role at the Federalist Society, where tax filings show he made about $400,000 a year, he was involved in a constellation of nonprofits and companies supporting conservative causes, fueled by tens of millions of dollars of largely untraceable cash.

For years, Leo’s presence in this tangled web “was visible, but it wasn’t official,” said Anna Massoglia, a researcher at the nonpartisan Center for Responsive Politics, who first wrote about Leo’s connection to the Honest Elections Project. “He’s been effectively leaving breadcrumbs all over. It’s just a matter of finding them and putting it together.”

Oct. 27, 202001:07

One of the most prominent of the interconnected groups was the Judicial Crisis Network, a Washington, D.C., nonprofit that has been the public relations machine supporting the nomination of conservative, originalist judges to the country’s courts. The group has an office in the same building as the Federalist Society.

After Scalia died, the Judicial Crisis Network kicked into gear. Its $7 million campaign helped block President Barack Obama’s nominee, keeping Scalia’s seat open for the next president to fill.

In January 2017, the group announced that it would spend $10 million to back Trump’s pick, who was soon revealed as Neil Gorsuch. Working with the Judicial Crisis Network were several figures who are now official partners in Leo’s consolidated dark money network.

There was Greg Mueller, the head of powerful CRC Public Relations, who ran point, according to a news release. He serves with Leo on the board of the anti-abortion rights group Students for Life of America. Leo would later join Mueller at the firm.

There was also Gary Marx, a political strategist and Judicial Crisis Network senior adviser, who worked to build support in key states. Marx now leads the two main tax-exempt groups in Leo’s new network, corporation filings show.

In 2018, the network rallied around the nomination of Judge Brett Kavanaugh, which survived the most contentious set of hearings since Thomas faced Anita Hill in 1991. McGahn, the White House counsel at the time, coached Kavanaugh, who disputed accusations that he had assaulted Christine Blasey Ford as a teenager.

Leo’s network threw millions at the cause, including buying ads to pressure Democratic senators in red states to vote for confirmation.

CRC reached out to reporters offering quotations from former Kavanaugh clerks. The PR firm was, according to Politico, also behind an ultimately embarrassing effort to exonerate Kavanaugh by claiming that someone else might have assaulted Ford.

After Kavanaugh was confirmed, supporters gathered in the Senate’s Mansfield Room for a private reception, Politico reported. Leo, Marx and Jonathan Bunch, Leo’s right-hand man at the Federalist Society, were there.

Their quest undoubtedly was driven by a shared vision of the law and limited government. But it was also lucrative.

All told, at least $330 million flowed through nonprofits linked to Leo from 2015 to 2018, according to an analysis by NBC News that built on a Washington Post tally done last year.

Millions flowed back to the men behind it. A company Leo owns in part received nearly $9 million, according to the tax filings of various nonprofits from 2016 through 2018. CRC, Mueller’s company, brought in $9.3 million in that period.

During Trump’s first term, Leo’s network helped him confirm more federal judges than any other administration had done since Jimmy Carter’s. In addition to three Supreme Court justices, Trump appointed 220 federal judges, including 1 of every 4 circuit court judges.

No compromises

Leo’s network is prepared for whatever follows Election Day.

He began consolidating the existing strands this year. In January, he announced that he was leaving the Federalist Society to officially head up a push to spread “big money and expertise across the conservative movement,” as Axios put it.

Leo implied that his effort was an answer to dark money groups on the left, which in 2018 outspent the conservative groups for the first time.

He surrounded himself with a familiar list of names, essentially making his role official in a network he’d helped create.

Leo became chairman of the newly branded CRC Advisors, Mueller’s public relations firm. Bunch joined him.

To move the “big money,” they revamped two tax-exempt organizations already in their network, with Marx at the helm.

One became The 85 Fund, the fiscal sponsor of the Honest Elections Project.

“The conservative movement is finally adopting some of the left’s tactics, but the left is still spending far more,” Marx said in a statement, pointing to the Arabella Advisors network, one of the largest left-leaning dark money networks. Like the Honest Elections Project, Arabella has said it is nonpartisan.

The Judicial Crisis Network became an entity underneath The Concord Fund. It has given more than $2 million to the Republican Attorney Generals Association, financial disclosures show. Some of that money has gone to pay consulting and research fees to CRC.

The Republican Attorney Generals Association backed Barrett’s nomination to the Supreme Court. Several Republican attorneys general are also part of Lawyers for Trump, the group marshaling legal power for the election, which also includes Leo and Consovoy, the attorney for the Honest Elections Project suit in Michigan.

Leo didn’t respond to an interview request or a detailed list of questions. Neither did Consovoy or Torchinsky, the other attorney on the Michigan suit. The Republican National Committee, for which both Consovoy and Torchinsky have worked, didn’t respond to a query.

The Federalist Society, where Leo remains co-chairman of the board, reiterated that it doesn’t “take a position on legislation, litigation, candidates for office or judicial nominees.” The spokesman who sent that response is a senior vice president at CRC Advisors.

The support for conservative attorneys general could also be a sign of what’s to come.

Attorneys general have mounted aggressive political challenges to Washington over the past decade. Republicans in Oklahoma and Texas challenged Obama’s environmental regulations and the Affordable Care Act. Their Democratic counterparts banded to block Trump policy changes on immigration and cuts to food stamps.

“If Biden wins, Republican AGs in general are going to be a real thorn in the side of a Democratic administration, much like Democratic AGs have been for the Trump administration,” said Paul Nolette, an associate professor of political science at Marquette University who runs a database that tracks litigation by attorneys general.

If they rally together to file multistate litigation, as state attorneys general increasingly do, they will have an advantage — the ability to “forum shop” for like-minded judges, choosing which states and which federal courts in which to file their cases. The Trump administration’s appointments have broadened their options.

In a politically polarized landscape in which Congress is often gridlocked, policy fights are likely to land at the judiciary’s feet. Some may like it that way.

“For partisans, it’s an appealing avenue,” Nolette said. “It doesn’t force the two sides to come to a compromise.”

Like an election, he said, a lawsuit is “largely win or lose.”

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