Attorney General Mark Herring will outsource the legal defense of the state’s voter ID laws and other election practices, Herring’s office announced Friday afternoon.
The move allows Herring, a Democrat who voted against voter ID when he was in the state Senate, to avoid arguing directly in the law’s defense. His office said Mark F. “Thor” Hearne II, a partner in the D.C. offices of Arent Fox, will handle the case, which Democratic groups filed against the state earlier this month.
Hearne is a former attorney for President George W. Bush’s election campaigns, as well as counsel in Crawford v. Marion County Election Board, the 2008 U.S. Supreme Court case that found voter ID constitutional.
He represented members of Congress who filed amicus briefs in that case. He’s also the former general counsel to the now-defunct American Center for Voting Rights. Hearne said Friday that Virginia’s ID statute meets the criteria laid out in the Crawford case and, “as such, is constitutional.”
“These kinds of laws, most states have,” Hearne said.
Democrats challenging the law argue that Virginia’s photo ID law is unconstitutional, but their case is much broader than that. It challenges long waits times on election day and says the Republican-controlled legislature deliberately targeted minority voters, young people and other likely Democratic voters when it rewrote voting rules.
The case was brought by Mark Elias of Perkins Coie, an attorney and firm with deep Democratic ties. The suit is part of a multi-state effort to challenge voting rules ahead of the 2016 elections. The firm is also challenging Virginia’s election districts in a pair of ongoing suits.
The Attorney General’s Office, which has about 200 lawyers on staff, brought in outside counsel in those cases as well, citing expertise and manpower needs. Herring said in a statement Friday that outside counsel for the voter ID case was needed to avoid “any concern that my previous advocacy would result in anything less than a vigorous defense.”
“Nothing is more fundamental than the right to vote and my position on these issues is clear,” Herring said in the statement. “I have consistently opposed these measures and worked hard in the legislature to combat them.”
Herring spokeswoman Emily Bolton said a total budget for Arent Fox’s defense hasn’t been decided. She said the Attorney General’s Office solicited proposals from a number of firms “that could provide a vigorous defense at the best value.”
“Arent Fox fits the bill,” Bolton said in an email.
A spokesman for Speaker of the House William Howell said it was “disappointing that partisan politics prevents Attorney General Herring from personally defending this case.”
“But the speaker is glad to see that the Attorney General recognizes the validity of Virginia’s photo ID law and agrees that it deserves to be fully defended in court,” Howell spokesman Matt Moran said in an email.
Republican leaders have chastised Herring repeatedly over legal decisions, saying he focuses too much on politics and the potential ramifications on an expected 2017 gubernatorial bid. Herring declined to defend the state’s gay marriage ban last year, arguing against the law in an ultimately successful bid to legalize gay marriage in Virginia.
He then officiated as plaintiffs in one of the state’s gay marriage cases renewed their vows outside a Richmond courthouse.
The speaker’s office declined to comment Friday on Hearne’s selection. Howell and other Republican legislative leaders may hire their own attorney in this case, as they did in the cases challenging Virginia’s election districts.
Those suits – like the new case targeting voter ID – were filed against the state, but legislators and the state’s Republican members of Congress intervened and took up the defense.
The speaker “will consider that if necessary” in this latest case, Moran said.
Fain can be reached by phone at 757-525-1759.
