As victory laps go, it was remarkably low-key.
In the summer of 2013, a young lawyer named William Consovoy appeared on a Brookings Institution panel to discuss his leading role in a recently decided voting-rights case. Just days earlier, the Supreme Court had ruled that certain states, particularly in the South, would no longer need Justice Department approval before redrawing districts, moving polling places or making other electoral changes.
“From my perspective,” Consovoy said, “this is what I would call a modest decision by the court.”
In fact, it was a watershed — a declaration that some of the central protections enshrined in the Voting Rights Act of 1965, an epochal piece of civil rights legislation, had largely outlived their usefulness.
The ruling, in the case of Shelby County v. Holder, further emboldened a Republican-led movement that has inspired a new wave of voting laws — creating stringent identification requirements, bringing broad purges of voter rolls and shuttering thousands of polling places, particularly in minority neighborhoods in states like Georgia, site of a chaotic primary election last week. That campaign has only intensified as President Donald Trump and his party, invoking the specter of rampant voter fraud, are seeking to limit who can vote.
A leading legal champion of this effort has been Consovoy, 45, a Trump lawyer who mixes Jersey guy affability with an affinity for some of the most divisive culture-wars legal disputes. He and his firm have argued against affirmative action at Harvard and for virtually outlawing abortion in Georgia. His work for Trump has centered on the president’s efforts, now before the Supreme Court, to keep his tax returns private — in the course of which Consovoy famously claimed that the president could not be prosecuted while in office, even for shooting someone in the middle of Fifth Avenue.
But it is his work on voting cases across the country that is drawing increasing attention in this presidential election year roiled by pandemic and protest. In recent weeks, his firm, Consovoy McCarthy, has fought against extending the deadline for mail-in voting in Wisconsin, sought to thwart felons from being reenfranchised in Florida and sued to block California’s plan to send absentee ballots to all registered voters.
His pedigree is Republican politics. His grandfather was a central New Jersey mayor. His father served as chairman of the state parole board until resigning amid an investigation into whether he had exchanged favors with members of organized crime. (He denied wrongdoing, and no charges were brought.) If the younger Consovoy’s passion initially tended more toward the Philadelphia Eagles, he eventually ticked the boxes of the conservative legal establishment: law school at George Mason, Supreme Court clerkship with Justice Clarence Thomas, membership in the Federalist Society — grooming for his ubiquity in the voting battles of today.
Janai Nelson, associate director-counsel of the NAACP Legal Defense and Educational Fund, has been on the opposing side of a number of those cases. Surveying Consovoy’s work from Shelby on, she said he exemplified “that movement of lawyers and zealots who seek to reverse and roll back many of the gains that have really solidified the U.S. as a democracy.”
Consovoy argues otherwise.
He and his law partner, Thomas R. McCarthy, once wrote that the South had been transformed “into a place where racial equality is an institutional priority,” and, citing the election of former President Barack Obama and other black officials, said special protections were no longer needed.
“It is one thing to ban discrimination in voting,” they wrote. “It is another to place an entire region of the country in federal receivership.”
A Family Affair
Consovoy is not the first in his family to intersect with issues of politics and race.
In the spring of 1963, his grandfather, George Consovoy, was seeking reelection as mayor of Franklin Township and had just won a first round of voting when protests erupted to desegregate the schools. Some voters saw him as too close to the civil rights group organizing the protests; Consovoy portrayed himself as a mediator. His opponents, he told the local paper, “have thrown a smoke screen around the entire campaign, going door to door, saying that I favor the transportation of children from one end of town to another,” even though he was “personally opposed to such a plan.”
Nonetheless, he was defeated in a runoff. Nearly six decades later, his son Andrew remembered what his father had told him afterward.
“He said, ‘You know, Andy, if I was going to lose, I couldn’t think of a better reason,’” he recalled in an interview. “And I was very proud of that, and it made a big impression.”
Andrew Consovoy had his own run-in with race and politics in the fall of 1981 as a close aide to the Republican candidate for governor of New Jersey, Thomas H. Kean. Kean won narrowly, and the Democrats accused his campaign of creating a “ballot security task force” to intimidate minority voters at the polls.
The Kean campaign claimed voter fraud, and the Republican governor of Illinois, Jim Thompson, later sent two Chicago police officers to help New Jersey Republicans advance their fraud claims, according to Consovoy, who worked with them.
“These were two guys you wouldn’t want to see at 2 o’clock in the morning and make them angry,” he recalled. “They said, ‘Chicago ain’t a bean bag compared to New Jersey.’ There might’ve been a few expletives in there, too.”
Consovoy was later appointed to the state’s parole board by Kean, and became chairman in 1998.
Two years later, Consovoy’s career came apart amid a lengthy criminal investigation into charges that he had given special treatment to inmates tied to organized crime. (Among the headlines was an allegation that he had used mob connections to secure his teenage son William’s construction job.) The case was ultimately dropped; the elder Consovoy said he had never even been questioned by investigators, who once arrived at his door with guns drawn.
Consovoy said the investigation had centered on his friendship with a man connected to a number of organized-crime figures.
“They said I was friendly with the mob. I wasn’t friendly with the mob,” Consovoy said. “I was friendly with a guy who was friendly with the mob.”
William Consovoy declined to be interviewed for this article, but in an email response to written questions, he described the investigation of his father as “a painful experience for me and for my family.”
A Transformative Time
While he was at the parole board, Andrew Consovoy got his son — who had graduated from Monmouth University but was still working in an administrative role for the school basketball team — an entry-level job with the Division of Parole, then a separate agency, monitoring parolees with drug problems. “He did not like it at all,” his father said.
Some months later, William Consovoy told his father that he had been accepted to law school at George Mason, in Arlington, Virginia.
“I had no clue,” his father said. “I was shocked. I was thrilled.”
The younger Consovoy said he had chosen George Mason largely to save money by living with relatives nearby. He was contemplating sports-related legal work.
As it happened, he had ended up at a school that was becoming a prime training ground for conservative legal minds; in 2016, it was renamed for Justice Antonin Scalia, once the bulwark of the Supreme Court’s conservative wing. Consovoy’s time at George Mason was transformative.
“During his first year, he was just an ordinary student, but sometime in his second or third year a fire got lit,” said Todd J. Zywicki, a professor there. “By the time he took my law and economics seminar in his second year, it was clear that something had changed.” (Law and economics is a conservative, market-driven legal philosophy that became the theoretical backbone of George Mason’s law school.)
He came to see Clarence Thomas, the most idiosyncratic and uncompromising member of the Supreme Court, “as my hero,” he once wrote, and is the only George Mason law school alumnus to have clerked at the high court. While Thomas’ willingness to cast aside judicial precedent has marked him as an outlier, even among conservatives, Consovoy believed that his approach “stripped the case to its barest elements and asked the important questions.” His own judicial philosophy hews closely to his mentor’s; earlier this year Consovoy played a leading role at a summit for originalists, who follow what they see as the original intent of the Constitution’s framers.
From law school, he went to work for Wiley Rein, a Washington law firm with deep Republican ties. Among the firm’s clients was Edward Blum, a conservative activist who creates interest groups to bring test cases on issues of race and affirmative action. To finance his work, Blum taps wealthy conservatives who often give through Donors Trust, an organization that allows them to avoid public disclosure.
In 2009, Blum decided to challenge provisions of the Voting Rights Act that required many jurisdictions to receive federal approval before changing local electoral laws. He recruited a new plaintiff: Shelby County, Alabama, a largely white suburban area south of Birmingham with a relatively large number of black elected officials.
One of Wiley Rein’s founders, Bert Rein, recommended two of his associates: “He said, ‘You ought to meet Will Consovoy and Tom McCarthy, both of them Federalist Society types,’” Blum recalled, referring to the conservative legal organization.
Consovoy, who worked the case alongside Rein, has argued that the court’s 5-4 decision left it to Congress to put in new voting safeguards, though Republican power in Congress made that unlikely. It “decides much less than people think,” he said during the 2013 Brookings panel.
But the Democrats’ leading electoral lawyer, Marc Elias, likened Shelby to Citizens United, the Supreme Court decision that amplified the power of wealthy donors.
“What Citizens United meant to people is that big money in politics is OK,” he said. Shelby, he added, “broadly signaled to Republican legislators that wanted to engage in voter suppression by passing restrictive laws: It’s open season on voting.”
New Firm, New Fights
After Shelby, Consovoy and McCarthy, a fellow George Mason alumnus, struck out on their own.
“He wanted the latitude to say if a cause was worth it, he wanted to be able to engage in it and not worry if he got 100% of his billable time,” Consovoy’s old boss, Rein, said.
Their boutique firm began with a couple of cases for Blum, including the Harvard litigation challenging the use of racial quotas in admissions. (They lost at the federal district level; the case is on appeal.) For Supreme Court lawyers, they are cut-rate. (“If you’re charging $500, $600, $700 an hour, that’s bargain basement,” Blum said.) The firm now has a sprawling menu of wedge-issue litigation.
It defended a Georgia law that would ban abortion after a fetal heartbeat has been detected, a case that is still pending. It failed in efforts to help Kansas throw Planned Parenthood off Medicaid, while representing Alabama in an effort to block a revival of the Equal Rights Amendment. Ongoing litigation against race-conscious admissions at the University of North Carolina has cost the school more than $17 million.
Neil Siegel, a prominent law professor at Duke, said his impression was that Consovoy “is more attuned to the legal destination he wants to arrive at than he is to the problems with the legal reasoning required to get him there.”
For his part, Consovoy said, “I’m not on any kind of personal or political mission,” and stressed his firm’s breadth, including a lucrative commercial litigation practice, with clients like caffeinated drink maker 5-Hour Energy.
But the battle begun under Shelby is being fought anew. This year, an advocacy group emerged called the Honest Elections Project, formed by Leonard A. Leo, co-chairman of the Federalist Society and an ally of Trump. While its funding is opaque, by April it had run a $250,000 ad attacking Democratic efforts to postpone the Wisconsin primary during the pandemic.
Both the project and the Republican Party have been underwriting myriad election efforts undertaken by Consovoy’s firm this year in key states like Wisconsin, Nevada and Texas. It is pressing for more aggressive voter roll purges in certain counties in Florida and Michigan, including Democratic strongholds like Miami-Dade County, and Oakland County outside Detroit. (“Yes, we have high voter registration,” said Jake Rollow, a spokesman for the Michigan Department of State. “That’s the goal.”)
Critics see Consovoy’s efforts as the embodiment of a new, coarser elections strategy.
“Think about it,” Elias said. “Signing your name to a pleading to try to stop people from voting, you have to look deep inside yourself before you do that.”
Others see him as a formidable lawyer lacking in pretense. “You love having a beer with the guy,” his old professor, Zywicki, said. He certainly does not fit the stereotype of the spotlight-seeking Trump lawyer, and explained in his email responses that he wasn’t comfortable “extensively commenting in the press.” Blum remembers him begging off from reporters after a decision a few years back.
“I do not talk to the media,” Consovoy told him. “I talk to the court.”
This article originally appeared in The New York Times.
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