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Robert C. O’Brien On “Political Lawfare” Preparing Close Campaigns For Electoral Overtime

Saturday, August 23, 2014

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HH: [Broadcasting today from Minnesota] and of course, this is the state where only six years ago, Norm Coleman emerged on Election Night anywhere from between 215 to 780 votes ahead, only to lose in overtime. And my colleagues, my legal colleagues, Robert O’Brien, Thor Hearne and others, Craig Engle, are all part of an election team designed to stop that from happening again. Robert O’Brien joins me from Northern California today. Robert, this is just part of the game now. It’s the overtime training, and like NFL teams, we’ve got to be ready for it.

RO’B: It is. I mean, to paraphrase Clausewitz, it’s politics by other means. And when the Democrats don’t win at the ballot box on Election Day, they’ll try and win the election via lawsuits and litigation. And we have to be prepared.

HH: Now this doesn’t, this didn’t start on Coleman in 2008. And it’s not limited just to Electino Day and post-election lawyering. I want to sort of talk a little bit about politics as lawfare first. What we saw in Texas this week, and I talked to our colleague, Stephen Larson, about this. That’s politics by other means.

RO’B: It is, as well as the IRS targeting Tea Party groups that have a different political opinion than the current administration. So you’re seeing a whole spectrum of legal action being taken against political opponents. It’s an extraordinarily dangerous trend in America. It’s not good for democracy. It’s not good for the country, but you know, a polarized country, this is where we’re heading. Unfortunately, Governor Perry was just the latest example of being indicted for exercising a political prerogative to veto legislation as a sitting governor. It’s hard to believe that that could give rise to an indictment, but that’s the world we’re living in today.

HH: We also saw a lot of bogus complaints filed against Tom Cotton and other people that were quickly dismissed by the appropriate administrative bodies, but it’s all part of creating noise and an attempt to divert attention from that. But then it comes down to Election Day, and you and Thor Hearne have been involved in Election Day struggles, and I hope that we’re all part of them this year. Give people a sense of the sort of antics that go on when you’re trying to burnish your votes by illegal means.

RO’B: Sure, I mean, the classic example of what happens, and we see this happening in almost every election, I’ve litigated this several times, are what are called the poll closing cases. And so you’ll have an election that is not going very well for one side. In my experience, it’s always been the Democrats that have brought these actions. And so late in the day when they’re microtargeting, program is not working, they’re not getting the numbers out to the polls in their precincts that they would like to see in order to win the election, they’ll file a lawsuit, or they’ll have their allies, some sort of progressive group, will file a lawsuit in local county court claiming that for fill in the blank reason, the lines are too long, the machines aren’t working well, there are not enough poll workers, folks are being deprived of their right to vote. They’ll then ask the judge to keep the polls open, but usually only in a specified area, only in the Democrat area. They won’t ask him to keep the polls open across the state or across the county. They’ll ask him to keep the polls open in certain precincts that are good for them. If they can get that ruling, they’ll then send their precinct workers out to do what’s called a knock and drag, where they’ll knock on doors and drag people to the polls in order to get enough votes to carry the election. The problem with that is it violates equal protection, because if the polls are only open in certain areas until 10:00 or 11:00 or 12:00 at night, it deprives, it gives an advantage to voters in those districts, and deprives other voters of their right to vote during the same time period as specified by the legislature. So it’s a, that’s a tactic that we’re seeing more and more of in elections, especially with the ability through computers and microtargeting to identify folks who haven’t voted yet.

HH: Now it seems to me that that always happens in Missouri, but not only in Missouri, just almost like clockwork, some judge in St. Louis will issue an order indicating that some historically Democratic, overwhelmingly Democratic districts may continue to vote until 9:00 or 10:00 or 11:00 at night, and then lawyers have to be found and sent in to challenge that on an equal protection. And inevitably, they are then closed. But those votes are counted, right?

RO’B: They are. It’s very difficult to unwind the elections, especially if the votes, if they’re paper ballots and they get mixed in with the rest of the ballots and they’re not segregated. But going back to St. Louis, of course that happened famously in the 2000 presidential election, where a Democrat-appointed judge held the polls open in St. Louis. Our colleague, Thor Hearne, was able to get to the Court of Appeal and actually had a hearing in I think the living room of the chief justice of the Court of Appeal, who immediately shut down the, overturned the ruling and closed the polls. But by that time, they’d been open for several hours, and thousands of illegal Democrat votes had been recorded at that point, so…

HH: It probably cost John Ashcroft his seat.

— – - –

HH: On the phone with me is my law partner, Robert C. O’Brien. Normally, we talk about aircraft carriers and international defense issues, because he was John Bolton’s colleague at the U.N., served on Mitt Romney’s national security staff. But he’s also one of the Election Day litigators. We have a special team at my law firm. It’s the reason I joined this law firm, is that we actually do this. We go out and we win cases that preserve Republican wins. One of our colleagues deeply involved in Bush-Cheney 2000 and 2004, Thor Hearne. But I believe, Robert, if I’m not mistaken, you were involved in New Mexico in 2002, were you not?

RO’B: I was. That was Congressman Steve Pearce’s first run for Congress. We were in New Mexico with a team of lawyers that had volunteered to go down and help at the time, candidate Pearce, and make sure that nothing untoward happened on Election Day. And of course, late that afternoon, the Democrats went into court, sought emergency relief to keep the polls open. Fortunately, we were there. We were prepared. We had the briefs, and a judge that they had hand-picked had ruled against them, and upheld the statute and closed the polls as they were required to. And one of the arguments that they made was well, people have to wait in line sometimes 15 or 20 minutes to vote. And I pointed out not too long prior to that we’d watched people stand in line in the hot South African sun for 10, 11, 12 hours for the right to vote and cast their ballot for Nelson Mandela, or cast their ballot in that first democratic election in South Africa. And they were willing to stand in line, that being inconvenienced and having a 10 minute wait to vote is really a first-world problem, and is not a basis for overturning the state legislature’s laws concerning when the polls should be open. Fortunately, the judge in New Mexico, although he was hand-picked by the other side, thought that way and enforced the law. And by the way, unless there’s an event, some sort of terrorism, or a natural disaster, a hurricane or something of that nature, uniformly on appeal, the courts have held that the polls need to close under the statute, when they’re required to close under state law. But unfortunately, sometimes those appellate decisions come too late, and the election has been improperly, has been won by improper means by the other side.

HH: Now Robert O’Brien, we’ve got a lot of people on this election team, and Mary Carter Andrues and Aaron Brand, and Lindsay Brinton and Brett Kappel, we’re all very experienced. My first election challenge was I led a voting rights observation team in 1986 in Yazoo City, Mississippi. And the key here is you don’t wait until the day of the election to get organized. That’s why we’re doing this. I’m trying to get every Republican in the country who listens to this to understand if you have a close race, get your lawyers organized now. And I, because you can’t do it on Election Day. It’s over on Election Day.

RO’B: Well, and it’s over if you wait until after Election Day if there’s a recount. And keep in mind, the whole point of ballot integrity is to make sure that citizens’ votes count. This is about getting people to the polls during the polling hours, and making sure that the rule of law is respected. This is not about keeping people from polls. We’re going to win races, we’re going to lose races. But it’s our position that races should be won or lost under the rules that have been established by the legislature that everybody’s playing under, and that the fair result, you know, is the candidate that got the most votes on Election Day wins the election and is sworn into office. And that’s often times going to be Democrats, it’s often times going to be Republicans. I think what has sadly happened is since Florida 2000 in the Bush-Gore recount, remember, that was the Democrats who went to court first, even though they ultimately lost at the U.S. Supreme Court. They’re the ones that took the recount out of the hands of the state officials and went to the courts and sought an advantage there. I think there’s been a feeling that hey, anything goes, and you’ve heard the mantra, even though it’s been subsequently proven not to have been true that Florida was stolen, and therefore, we’re going to do whatever it takes to win elections. And that kind of win at any cost, the ends justify the means, is not good for America. It’s not good for democracy. It’s not good for Democrats or Republicans.

HH: No, it’s not. And it’s also, it’s getting worse. I wrote a book in 2004, If It’s Not Close, They Can’t Cheat. It was tongue-in-cheek, but it sold and it sold and it sold. In those days, Democrats used to, in Chicagoland, in South Texas, they would just print ballots, right? But usually, they would be stopped before they got into the real ballot pile. And that’s where, I had a great meeting with one of the people who was involved with the Minnesota overtime six years ago. The trier of facts in that case, great judges. They were good judges. Their hands were tied, because the bad ballots got mixed in with the good ballots without an objection being made before they were thrown in.

RO’B: Right, and it’s very difficult to unwind that situation when you get to court later, and that’s why you have to be, I was on the ground in 2004, again in New Mexico, for President Bush. The votes had been counted. We were actually at a post-party. All the absentee votes had been counted. The President had won in New Mexico. We knew what the numbers were in Dona Ana County where I had a team of observers, and we saw Bill Richardson get on TV and tell the world that he had just spoken with Senator Kerry, and that he was guaranteeing that there were more votes in Southern New Mexico that were going to come in, and that Kerry was going to carry New Mexico. Now we knew that all the votes had been counted and everything had been tied up, and that there were no more further votes. But we got very nervous. We raced back down to the county courthouse, and lo and behold, the county clerk attempted to bar the independent observers, not just the Republican observers, but the media and others from the county courthouse. There were allegations that there were bags of ballots coming out of the women’s restroom. Fortunately, the Highway Patrol got there. They had observers stay overnight, sleep in the courthouse with the ballots, and a court enjoined early in the morning, enjoined the county clerk from kicking the observers out. Once they realized that they couldn’t steal the election in the dark, they gave up, and the President’s victory in New Mexico was maintained. That case ended up going to the Supreme Court. We went all the way up to the New Mexico Supreme Court.

HH: And that’s what it takes. I’ve got one more segment with Robert C. O’Brien coming up. That’s what it takes sometimes. Sometimes, you’ve got to sleep with the ballots with the Highway Patrol. It’s that bad in some places, America. And we’ve got 14 Senate races, and a few Congressional races, and a couple of Governors races where I expect the other team to be playing with fake money. I think they want Monopoly money mixed in with real money. I’ll be right back with Robert C. O’Brien. One of them happens to be here in Minneapolis at the Minnesota State Fair.

— – - –

HH: What I want to handle now is very delicate. You litigate all over the world, but you litigate all over the United States, commercial high-end litigation. You always have local counsel. We love local counsel. But increasingly, election law is not for local counsel. There are a handful of firms that do this in Washington, D.C. They have specialists that know the law. Our friend, Thor Hearne, has been up and down to the Supreme Court on this stuff, as you have been with various state supreme courts. And the reality is local counsel are necessary to staff these things, but it’s hard for them to come up with a strategery on Election Day. They’ve just never done this.

RO’B: Well, part of the problem is, and the reason there are so few firms that have done this, is this sort of litigation will not, you know, support you as a lawyer. If you had to wait for every Election Day and then hope that there was a bit of election law litigation, you’d be a starving lawyer. And so it’s very difficult for firms other than a few of the big national firms, and the firms with a Washington presence, to develop a real expertise in this area. Our firm happens to be fortunate enough to have assembled a team of lawyers that have worked on various national and statewide campaigns, and we have that experience. But the local counsel are critical. They know the judges, they know the court clerks, they know who to call late at night if something is going on to get the judge’s home phone number. So it’s really teamwork between the national counsel, the folks that have done this before and know the cases inside and out, have the pleadings that can be customized for the local state, and working with our local counsel, many of whom are, you know, former judges or former U.S. attorneys, or prominent litigators in their state who know the lay of the land. And it’s that teamwork between when we do this, our firm and the local folks that know the lay of the land, and that it leads to a successful result. So it’s teamwork, but it’s tough for the local folks sometimes to do it just on their own.

HH: And every candidate has to ask their campaign manager or their campaign chairman what’s our plan. And we’ve got one minute left, Robert. It’s the candidate’s job to ask for the plan, don’t you think?

RO’B: They do, and look, there is so much time and effort and money that goes into a Senate campaign or a Congressional campaign to not be prepared for the legal challenge that you know there’s a good chance it’ll come if you’re in a close election. It’s not fair to the candidate, and it’s not fair to his or her supporters not to be ready for that on Election Day.

HH: Robert C. O’Brien, always a pleasure to talk to you, my colleague at Arent Fox. Thank you.

End of interview.

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