In the News The National Law Journal

A SCOTUS Juggling Act for Perkins Coie's Marc Elias

05 December 2016

For most appellate lawyers, arguing at the U.S. Supreme Court is the capstone of their careers.

For Marc Elias of Perkins Coie, arguing two separate but related cases before the high court on Monday was just one of several career highlights this year alone.

As an election law specialist and general counsel for Hillary Clinton's presidential campaign, Elias in recent weeks has been navigating Clinton's involvement in the on-and-off recounts sought by third-party candidate Jill Stein while also overseeing the recount of the gubernatorial race in North Carolina on behalf of his client, Democrat Roy Cooper. It was Elias' essay published on Medium.com on Nov. 26 that alerted the political world that the Clinton campaign intended to participate in the recounts "to ensure the process proceeds in a manner that is fair to all sides."

And oh yes, he has been prepping for the Supreme Court arguments, too. Elias said last week he was trying to spend eight hours a day on the Supreme Court cases, while also "moving from one team to the next" at his law firm to keep an eye on the election-related crises that he did not anticipate happening only a few weeks earlier.

So, when a reporter asked about the North Carolina recount after Elias' arguments at the high court Monday, he brushed off the question. "Honestly, I've been preparing for these cases," he said, noting that his adversary in both cases was former U.S. Solicitor General Paul Clement, now a Kirkland & Ellis partner with more than 80 Supreme Court arguments under his belt. Cooper's opponent in North Carolina, Pat McCrory, conceded defeat Monday.

"And I'm still trying to figure out where the men's room is," Elias said. Asked how he kept everything straight, Elias pointed to his Perkins Coie colleagues Abha Khanna, Kevin Hamilton, Aria Branch and Elisabeth Frost.

Elias argued Monday against Virginia and North Carolina in the cases Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris. Both involve the role race can play in drawing legislative districts, a difficult issue that the court has wrestled with before.

But the cases were not consolidated into an hourlong argument. So Elias-and Clement-had to keep the intricate details of the redistricting process in Virginia and North Carolina in their heads and not mix them up during their separate presentations.

It is rare for the same pair of lawyers to argue two cases in a row at the high court. When the second argument began Monday morning, Chief Justice John Roberts Jr. looked at Elias and Clement and joked, "You again."

As Elias may have feared, Clement was at top form during the arguments, making his case and citing districting details without hesitation or notes in both cases. As often happens, the justices gave Clement wide berth, allowing him to make extended arguments without interruption.

But Elias was also at ease before the court, responding comfortably to questions, referring to other justices' remarks and comparing and contrasting the Virginia case with the North Carolina one without mixing them up. The outcome of the cases was hard to predict from the arguments.

Elias made one rookie mistake when Roberts gave him a hypothetical about other factors that states could use in redistricting. Elias said that his case was different, and Roberts replied, "That's why this is called a hypothetical, because it's not about the particular case."

After some more back and forth, Elias said, "I think I now understand your question" and answered it.

But it appeared there were no hard feelings. When Elias rose to argue the second time, Roberts said, "Mr. Elias, welcome back."

To which Elias replied, "I feel like I never left."