By Jeff Jeffrey and David Ingram
Washington's political law practices are hunkered down this Election Day, responding to calls from around the country on voting problems and awaiting possible recounts.
At Arent Fox, for example, lawyers have spent part of the day following the situation in Missouri, where a breakdown in the state’s voter database has complicated things for election officials. “You want to have an orderly election,” said Mark “Thor” Hearne II, an Arent Fox partner who was President George W. Bush’s national election counsel in 2004.
The firm’s clients this cycle include the National Republican Senatorial Committee and the Republican Governors Association. Hearne said he’s been focused on addressing issues as quickly as possible. “The objective is to monitor the process and identify and solve any problems that come up on Election Day, so that even if it’s a close election, there aren’t any problems afterward,” he said.
Robert Kelner, who heads Covington & Burling’s political law practice, said the number of challenges to election results will likely be tied to whether the House or Senate flips in favor of Republicans and by how wide a margin.
“There is a lot of anticipation that there will be more than the usual amount of recount activity, but I’m not necessarily convinced of that. If the House flips in favor of the Republicans by a big margin, which many are predicting will happen, there won’t be as many challenges because the stakes won’t be as high,” said Kelner (pictured at right). The firm represents the Republican National Committee and the National Republican Congressional Committee.
Kenneth Gross, chair of Skadden, Arps, Slate, Meagher & Flom’s political law practice, said that because his clients are primarily corporations and trade associations who donate to political candidates, he’s getting a lot of last minute calls about a range of donation issues.
“We’re hearing everything from ‘Does today still count as general election season?’ to ‘Does the check have to be received today or can it just be dropped in the mail today,” Gross said. “Usually Election Day is the eye of the storm, but we’re very busy today. There’s a lot of last minute interest in knowing exactly what the rules are.”
Gross, who declined to identify specific candidates, said he expects to continue hearing from clients in the weeks and months after the election, especially if there are contested races and candidates and political parties start trying to raise money for recount efforts. “We’re not even going to break our stride in the need for a large amount of donations.” Gross said.
Gross added that he also expects to see an influx of work from clients who have made donations in state-level elections. “Many states have pay-to-play laws that can bankrupt a company and run it out of business if mistakes are made. And a lot of times, those mistakes are prompted by the pressure of trying to get a donation submitted under the last-minute pressure of Election Day,” Gross said.
Of course, today’s results carry a lot of significance for non-election lawyers, too. Rich Gold, head of Holland & Knight’s lobbying practice, said the potential flip in control of Congress points to an increased level of election volatility that may continue.
“I don’t think there’s any security in a House majority in this decade,” Gold said. Many of the House seats that could change hands this season, he said, have the potential to flip back in 2012. “We’re in a very turbulent era,” he said.
Hogan Lovells partner Robert Bennett said that if Republicans take control of at least one chamber of Congress, he’ll be looking for clues about what in the Obama administration they intend to investigate. “What’s hard to know is exactly what the focus will be,” Bennett said, “but I would expect that there’ll be more congressional activity” on investigations.
Updated at 4:54 p.m. with additional reporting. National Law Journal photo by Diego M. Radzinschi.
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