July 8, 2021 By Audrey Unverferth
The 5th U.S. Circuit Court of Appeals said Wednesday it will keep sanctions it levied against lawyer Marc Elias, known for his role in the Russia collusion hoax and other Democrat operations, for his “lack of candor.” The court will vacate its sanctions against three of Elias’s fellow Perkins Coie lawyers.
Elias ran campaigns to change voting laws and practices to favor Democrats and in 2020 founded Democracy Docket, an organization self-described as “the leading progressive platform dedicated to opinion, advocacy, and information about voting rights, elections, redistricting and democracy.”
Democrats have celebrated Elias and his advocacy, but the 5th U.S. Circuit Court was displeased with him and five of his colleagues at Perkins Coie after they filed a supplemental motion in February that was almost an exact replica of a motion that had been filed and denied in September, “without disclosing the previous denial.” The court strongly disapproved of the attorneys’ behavior, deciding to sanction them in March.
As the court responsible for “oversee[ing] courts in Texas, Mississippi and Louisiana,” Reuters reported the court “ordered Elias and [his] team to pay attorneys’ fees and court costs incurred by their opponents over the ‘duplicative’ motion and any related response and also to pay ‘double costs.’” The court also suggested that Elias and his colleagues spend time reviewing the court’s rules on candor.
The court imposed these sanctions in a straight-ticket voting case in Texas, titled Texas Alliance for Retired Americans v. Hughes. In this case, Elias and his team “represent Democrats fighting in favor of the practice [of straight-ticket voting,] against the state’s top election officials.”
Straight ticket voting enables constituents to vote for a political party’s “entire slate of candidates with just a single ballot mark,” making it easy for uninformed partisans to quickly engage in down-ballot voting. It’s one of the “election reforms” currently demanded by some Democrats.
Frustrated by their sanctions, Elias and his team urged the court to reevaluate them in March. He and his colleagues were represented by Kirkland & Ellis partner Paul Clement, who served under former President George W. Bush as U.S. solicitor general.
Represented by Clement, Elias’s team claimed their February motion was “not intended to conceal the denial of the initial motion to supplement the record, but reflected good faith misunderstandings.” On behalf of his clients, Clement issued a filing, which asserted that courts “generally reserve sanctions for egregious misconduct and the disregard of clearly established rules,” not “good-faith mistakes.” The filing also claimed, “As a result, if the Sanctions Order stands, it will have (and, indeed, already has had) outsized collateral consequences on each of the affected attorneys.”
Despite the frustrations of Elias and his team, the 5th Circuit Court held that it is “not required to find bad faith when imposing sanctions for violations of local rules.” Moreover, the court reminded Elias and his team that “[the court’s] local rules permit [it] to discipline ‘any member of the bar of th[e] Court for failure to comply with the rules of th[e] Court, or for conduct unbecoming a member of the bar.’”
The court won’t drop its sanctions against Elias or his legal partner Bruce Spiva because both men have almost 30 years of experience in the legal field and should have reasonably known better. Since counsel Skyler Howton signed both the September and February motions to supplement, the court also kept its sanctions against her. The court vacated its sanctions against the other half of Elias’s team.
Audrey Unverferth is an intern at The Federalist and a senior at the University of Chicago, where she studies Law, Letters, and Society and Russian and East European Studies. She is also the co-founder, publisher, and editor-in-chief of the Chicago Thinker. Follow her on Twitter @audrey__unver or email email@example.com.