Mark Elias (2:09)

Why is Tulsi Gabbard there?

Trump Supporter/Commentator (2:11)

I don't know.

Commercial Announcer (2:12)

Tulsi Gabbard has been tapped by the president of the United States to oversee the sanctity and the security of our American elections.

Trump Supporter/Commentator (2:20)

They say, why is she doing it?

Mark Elias (2:23)

Right, Pam?

Trump Supporter/Commentator (2:23)

Why is she doing it? Because Pam wanted her to do it.

Mark Elias (2:27)

You start to see the seizing of ballots in Georgia and you start to see the rhetoric that we've been talking about, Steve Bannon, the things that he's saying. And this is just the progression that he goes through. And I think everyone needs to be really worried.

Dahlia Lithwick (2:47)

Donald Trump is mumbling now about federalizing elections. When Trump shared a vile, racist truth social post depicting Barack and Michelle Obama as apes on Thursday night, it was embedded in a video claiming the 2020 election had been stolen based on debunked false allegations disproven in court every single time about voting machines in swing states. Trump's Justice Department performed a raid on a Fulton county voting station staffed by Director of National Intelligence Tulsi Gabbard, as if all of this were a national security em. Efforts to choke off mail in ballots and other means of broadening the vote are underway. Increasingly explicit threats that armed federal forces will be monitoring polling places in November. And beneath all of it, in what could be a postcard from Hannah Arendt, an effort to convince Americans that elections are rigged and that whatever happens next November, the election will have been corrupted and stolen until and unless Donald Trump's side wins. Our guest this week has been both a gladiator for voting rights in the courts and a tireless explainer of voting law to an American public that sometimes suffers from a kind of chronic snow blindness when it comes to elections, forever inclined to believe that those elections magically just administer themselves and that the voting system is made of steel beams and iron girders as opposed to masking tape and paperclips. Mark Elias is the chair of Elias Law Group, a mission driven firm committed to helping Democrats win, citizens vote, and progressives make change. He's a nationally recognized authority and expert in campaign finance, voting rights, redistricting law, and litigation. As a litigator, Mark has handled hundreds of cases involving politics, voting rights and redistricting, and has successfully argued and won four cases at the US Supreme Court, as well as dozens of cases in state Supreme Courts and U.S. courts of Appeal. Mark is also the founder of Democracy Docket, leading digital news platform dedicated to information, analysis and opinion about voting rights in elections. I've known Mark for many years and I can say with confidence that if anyone can fairly lay out the stakes of the upcoming midterm elections, it's him.

Interviewer (5:06)

So, Mark, thank you first of all for your work. But really, thank you for being here with us today on what feels like a kind of a exigent week to start talking about the midterms.

Mark Elias (5:16)

Yeah, thanks for having me. And I think you're exactly right. I think this week will be looked back on as a bit of a pivot point, I think, in how the midterms play out.

Interviewer (5:25)

I wonder, Mark, if we can start with a lightning round walkthrough of just the news developments around voting and elections just from the last few weeks and months. And I want you, as I'm sort of going to name a proposition, you let me know which of These things are just like hollow symbolic bullshit meant to trigger a reaction and which are really DEFCON moves that require urgent attention that is not often mustered until the week the election. So basically I'm going to ask you on a bunch of the fronts that you and I have been monitoring in the last couple of weeks, how many alarm bells you assign for each of these things and why. And I want to start with this week's news from the mouth of Steve Bannon, announcing that ICE is going to, quote, surround the polls, pledging on Tuesday that the federal government is going to send ICE officers to patrol polling stations during the midterms. I can't tell if he's trolling us or if this is something that we should be terrified about.

Mark Elias (6:25)

I don't think he's trolling us. I think he's quite serious about it. And I think Donald Trump wants to maintain optionality here. I mean, he has put federal paramilitary forces in a number of American cities. Everyone's focused mostly on Minneapolis. But let's be clear, it's not only Minneapolis. And part of it is because he obviously has an anti immigrant agenda he wants to work through. But the other thing is he wants to normalize the idea that you see people with flashbang grenades and tear gas and breaking windows and dragging people out of cars and telling US Citizens that they're being put in databases and grabbing US Citizens and throwing them in the back of vans. Right. He wants to in a sense, normalize all of that because that has side benefits, none so great as potentially the midterm elections using those same forces and those same tactics not to go after noncitizens and not even specifically focused on being Russia around polling places, but just more generally making it more intimidating to vote, making it more inconvenient to get to polling locations. And sure, in its most extreme, surrounding polling locations and intimidating people or preventing voting altogether.

Interviewer (7:39)

So I guess the follow up is just my lawyerly question, which is, of course it's not lawful to deploy federal troops or armed federal law enforcement to polling places. The Brennan center is very clear. It's a crime for anyone in the military to interfere with elections. So doesn't this discuss, begin and end with the fact that you just can't?

Mark Elias (7:58)

It doesn't because of two reasons. First of all, I think that we began the administration with people thinking, oh my God, what if he puts the military at the polls? And I think what Donald Trump has figured out, actually he's better off with paramilitary than he is actually the US Military, the military may actually be too disciplined and too principled. So he has found other federal law enforcement personnel and agencies willing to do his dirty work. And again, we've seen that progression between la, where we saw National Guard, and then Minnesota, Minneapolis, where we've seen ICE and Border Patrol. But more fundamentally, where you have a president who himself enjoys absolute immunity and will wield the pardon power, that makes saying something is illegal a lot less of a credible threat. And certainly when you have the Department of Justice, that would never prevent them from doing those things and, in fact, would go to court to enable those things. It doesn't take law off the table. And I never want people to think that the courts are not able to address some of these things, because I think, in fact, the courts have proven the most capable of the checks on Donald Trump. So, you know, I can promise you lawyers like me will be in court and we will fight against this and we may very well win. But it doesn't mean that he won't try or that he won't actually get cooperation from his own administration to do these things.

Interviewer (9:15)

So, I guess in reaction to some of the same news, Trump said last Monday that the time has come to, quote, unquote, nationalize elections.

Trump Supporter/Commentator (9:25)

These people were brought to our country to vote, and they vote illegally. And the, you know, amazing that the Republicans aren't tougher on it. The Republicans should say, we want to take over. We should take over the voting, the voting in at least many 15 places. The Republicans ought to nationalize the voting.

Interviewer (9:45)

Can you talk us through what it is under that threat? I mean, is there some tangible plan he's referencing, or is this just another one of those? I want what I want, and I want it now. And I want these 15 democratic jurisdictions to be monitored by me.

Mark Elias (10:05)

I think a couple of things here are important. The first is that when he says, I want to nationalize the elections, I fear that some people think, oh, what he's talking about is uniform standards across the country. What he wants is a terrible, but nevertheless uniform application of voting standards that would apply in Alabama, equally to apply in New York. But what he said was he's making false claims about people coming to the country illegally to vote. And he says, and, you know, it's amazing that Republicans aren't tougher on it. The Republicans should say, we want to take over. We should take over the voting, the voting in at least as many 15 places. The Republicans ought to nationalize the voting. So I want to be clear, he's not talking about nationalizing election administration. He is Talking about Republicans taking over the voting and then identifying that there would be specific jurisdictions in which he would take over that voting. And we can assume that that 15 would grow to be beyond 15, but it would be places with large concentrations of Democratic votes. So he's talking about a partisan takeover, not a federal versus state takeover. But the second thing is, Dalia, I think that the big lie that he is selling in 2026 is his own power regarding these elections. What he's really doing in this statement, and probably some others you're gonna ask me about, is suggesting that the president has powers over elections that he doesn't have.

Interviewer (11:43)

And I think I need to just ask you for one quick second because you know this material better than I do. When you are in Democratic cities and states and thinking about what this could possibly look like, I'm assuming there's intense war gaming going on in preparation for some of these threats. Can you tell us what state AGs are thinking about in response to these threats to either send ICE patrols or nationalize elections? Are there moves being put into place to prepare for that?

Mark Elias (12:17)

So I can speak for myself. You know, right now, my law firm and I, we are litigating 80 cases in 40 states. And that is a very large number of cases for any law firm. It is a exceptionally large number for a law firm of 60 plus lawyers. And so we are actively planning how to protect free and fair elections in 2026. I am sure the Democratic attorneys generals are. And I think that the way in which I think about it, and I suspect the way in which the AGs think about it is a progression and an escalation. I want everyone to go back in their head and remember 2020. 2020 didn't start with a violent insurrection of the nation's capital. It actually started with Donald Trump before the election, well, before the election, saying, we can't have all these mail in ballots, right? He was railing about mail in ballots, railing about mail in ballots. And then there was litigation before the election about mail in voting and in person voting and all kinds of stuff. And many in the traditional legacy media treated that as kind of like the normal jockeying before elections. And people like me and you were saying, no, no, this is actually not normal. This is actually quite extraordinary. But it was still kind of viewed in that frame. Then Donald Trump loses the election and he files not one lawsuit, but he and his allies file 64 lawsuits, which, again, completely not normal. I mean, if you go back to Bush versus Gore, you know, I never added it up, but Maybe in the totality of Bush versus Gore with all of the subsidiary little issues, maybe he had a dozen cases, right? But that was like one state involving a very, very close margin decided by the Supreme Court. This was just a scattershot approach with a lot of bullshit legal theories. And he escalated there when that, that didn't work. And this is, I think, the pivot point that people sometimes look past when that didn't work. On December 19, after the electoral College, the state of Texas files a petition directly in the U.S. supreme Court. You and your audience know how unusual that is, right? Like, didn't go to the trial courts, just went straight to the US Supreme Court and said, we need you to throw out the election results in four states. So Texas is saying to the justice of the Supreme Court, throw out the election results in Pennsylvania and Michigan and Georgia and Arizona think was the fourth state, or maybe Wisconsin was the fourth state. But basically like this is unheard of stuff. And Mike Johnson, who is now the speaker in the United States at that point was a backbencher. He organizes 126, I think it was Republican members of Congress to sign onto that brief as an amicus. And that becomes a major pivot point because it was as much of a political organizing as it was a legal organizing. And that winds up building up to the House. Republicans are trying to refuse certify the election January 6th. And obviously the vice violence and the insurrection we saw on January 6th. So that was the progression in 2020. And as we look today, we're seeing the beginnings of the same progression, right? You see Donald Trump first attacking voting, which he's been doing, his Department of Justice bringing litigation which they are losing. And now you start to see the seizing of ballots in Georgia and you start to see the rhetoric that we've been talking about Steve Bannon and the things that he's saying. And this is just the progression that he goes through and think everyone needs to be really worried.

Dahlia Lithwick (15:32)

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Dahlia Lithwick (18:37)

And we are back with Mark Elias.

Interviewer (18:40)

So you mentioned it and it was my next lightning round. This is the one that I think set off, you know, all the red flags for me. This is the FBI search of a warehouse in Fulton County, Georgia last week again after persistent demands claiming again, always without evidence, that fraud cost him Georgia. And we know how that's gone. They used the opportunity to seize almost 700,000 doll boxes of 2020 election documents. And I want you to talk about that, but I want you to really talk about it through this very chilling frame of Tulsi Gabbard's presence. Director of National Intelligence on the scene for that raid because that is where I think a lot of us were like, huh, seems strange. Think about it in a couple of months. But this is a big, big deal, having the DNI present for an FBI raid in Georgia. Yeah.

Mark Elias (19:37)

And there's another fact that has been way too much overlooked that I want to put on the table, which is that the prosecutor who sought this search warrant is in Missouri. This was not the U.S. attorney's office in Georgia. This is, I think, the U.S. attorney, maybe acting U.S. attorney, but I think the U.S. attorney in one of the districts in Missouri, from reporting, it appears he has jurisdiction not Only over the 2020 Fulton county matter, such as it is a matter, but also over sort of nationw jurisdiction over all election things. So when you take his involvement and you take Gabbard's involvement, I think you need to recast this as not only the election denialism of 2020, which, you know, look, I represented President Biden and the DNC in 60 plus of those cases, including in Georgia, and I represented them in the two recounts in Georgia. So, like, I have a lot of interest in protecting the truth about the 2020 election, and particularly in Georgia. But if this was just about that, if this was just fight about nostalgia, you know, like, you know, it would still be bad, it would still be terrible, it'd still be unprecedented, it'd still be dangerous, but it would be one thing. But what I think this is actually about, Dalia, and it goes to your question about the involvement of Tulsi Gabbard is I think this is about proof of concept for the future. You know, people talk about seizing ballots and surrounding polling places and stealing elections as if somehow these things are easily done. I mean, these are conceptual frameworks that people in the administration have to get comfortable with, moral frameworks they have to get comfortable with. They have to contend with the Constitution and the law and judges and all that, but they also have to contend with just the sheer logistics of it all. Like, how do we actually do this thing where there are ballots in the possession of a county official, and how are we going to get them? And how are we going to then count them in a way that is going to cast doubt on the outcome or cast doubt on the outcome through other propaganda and disinformation campaigns. And. And I think that this Georgia thing is just as much about that as it is about 2020. And in that respect, we have to be honest, Donald Trump actually and his administration here pulled something off like they actually did seize ballots, like, they actually got their hands on them. And people can say, oh, they had the wrong warrant and they had to go back and all. But, like, at the end of the day, Tulsi Gabbard is on a truck full of documents that have been seized from an office and those are now in the possession of the FBI and presumably a grand jury by this guy from Missouri. And be terrifying, like on your alarm bells. Like, this is like off the charts because they have unlocked if they faced a challenge in 2020 and were humiliated in how to subvert the outcome of an election. And Donald Trump told the New York Times that he wished he had seized the ballots in 2020. They have now shown they have a proof of concept that they know logistically how to do this, including Dalia, as you know and your audience, getting a federal magistrate judge to sign a warrant. And again, that is not a small matter. Like, that is a safeguard. That is a roadblock put in place to prevent the abuse of grand juries and abuse of subpoenas and abuse of arrest warrants. And they got through that process. And that is a learning exercise that they will use going forward to 2026. And it is the thing that I probably worry the most about.

Interviewer (22:53)

And I know that you've already said, like, don't ask dopey questions about, but it's not legal because it doesn't really matter. It doesn't matter for purposes of proof of concept. But I do have to ask the follow up, which is that warrant cited criminal offenses under the US cod. There's nothing in there about national security or intelligence needs. They just, I guess the quote given to NBC is they just wanted Tulsi Gabbard on site. But the implication that anything can be a potential national security emergency is also a huge escalation. And I think again, got sort of blurred out of the picture here because if you're going to start to say everything is about foreign election interference. And by the way, the warrant doesn't even cite to that. That's again, taking us into a whole other level, not just of, wait, there are problems with the warrant, but what it is that you're laying down the path to do.

Mark Elias (23:54)

Absolutely. And I'm glad you brought me back to that because there were a couple of things there that I think should be really troubling and set off alarm bells for not just this instance, but what we see in the future. The first is that I think Tulsi Gabbard's presence was intended to convey, as you say, that this is a matter of national security. Now, why is that important? It has rhetorical benefits Right. Which is that they can say this was foreign interference, and how the hell do you and I disprove that? Right. They can say they have classified means and methods to know that this was a foreign operation. Right. So that's a rhetorical benefit. But the second is, Dalia, how many times have you reported probably thousands of the federal government telling courts. But, your honor, you don't understand. This is a matter of international affairs or this is a matter of national security. And that triggers for judges a very different way of looking at what could otherwise be civil liberty disputes or constitutional disputes that are domestic. And I not saying I agree, they didn't do that here because they needed to unlock the first lock. And this is further down the road. But look, when we get to the fall, everybody, if Tulsi Gabbard's involved, everyone's gonna be like, well, she was involved in Georgia. Again. It's part of. This is a normalizing effort. And I think where you really saw that play out was in the various comments from the White House and also from Todd Blanche. Todd Blanche. His first explanation was something along the lines of, well, Tulsa, Gabbard just happened to be in Atlanta, as if, like, somehow, like, she went to the, you know, the art museum and then just dropped by a raid. The second comments, though, she had, though, is he gave this very contorted answer about how this is a grand jury investigation, and she is not involved in the grand jury investigation. She's not an agent of the Department of Justice. And again, I think this is to get us over a hurdle that people like you and I would ask, which is if you had a search warrant under seal, and you had an affidavit supporting the search warrant under seal, and you have a grand jury investigation that is covered by grand jury secrecy, how the hell does Tulsi Gabbard Pierce any of that? And they still haven't answered it, but they've papered it over in a way that I think they want to normalize for the future. But I don't know that they've succeeded in that. But I think they're trying.

Interviewer (26:17)

So I want just for the last little bit of current events to at least touch on the Justice Department lawsuits around the country, mostly, again, targeting blue states, seeking detailed voter data, including birth.

Dahlia Lithwick (26:32)

Dates and Social Security numbers.

Interviewer (26:34)

And that kind of braided together with the kind of open, I think, threats from Attorney General Pam Bond that the Trump administration would cool it in terms of terrorizing the good people of Minnesota if their governor would just turn over their voter rolls. And I just want to add to the kind of stew that we have created of, like, normalization and also kind of creeping encroachment on how we vote. Creeping encroachment on data privacy. Because that is certainly a piece of this. And I think, again, it's flying under the radar in no small way because it just seems. Seems technical.

Mark Elias (27:13)

Yeah. And I wish I could get more people to realize how this is so foundational to what Republicans and this administration are up to. When I run into people on the street, they say, you know, I think they're going to steal the election. And I say, well, how are they? How do you think they're going to do it? And they say, well, I think they're going to, like, throw out people's ballots or do mass disenfranchisement. And I always say, well, based on what? Right. Like, I'm not challenging them, by the way. I think the administration is going to try to do those things. And what I'm trying to get people to process through is that you need the data in order to know whose ballot you want to throw out. I mean, think about it in terms of gerrymandering. People are always like, oh, you know, the Republicans in Texas, they drew a partisan gerrymander. And my first thing to, like, get them to think about is how did they draw a partisan gerrymander? Right. They drew a partisan gerrymander because they had really good data about where the Democrats live and where the Republicans live. And without that data, you can't actually do the next bad thing. Right. So the truth is that the reason why the Department of justice is suing 23 states, plus the District of Columbia, and is trying to leverage the absolute heartbreaking shooting in Minnesota to access their voter file. And the reason why this is such a big court fight, you know, my law firm, we are involved in all 24 of those cases. On the other side, the reason why this is. There's so much at stake here is because for the Department of Justice to do the bad things that we fear they're going to do, they need to know who the Democrats are. They need to know who the voters are who are minorities. They need to know who the voters are who are women. Right? Like, whatever group they are trying to target, they need to know who they are. And that information, which is super sensitive because it includes, as you say, Social Security numbers, personal identifying information, people's date of birth, where they've lived, whether they're registered as Democrats or Republicans, I mean, has all of this information that resides with the states, the federal government doesn't have it because there's no reason why they should have that election data. But they desperately want it for the same reason, if you remember I said about the search warrant in Georgia being a big deal because it unlocked something. They didn't get everything they need, but they got a big piece of what they need to be able to subvert the election. Well, another big piece of what they need to know is they need the data. They need the data to know who they're targeting, who they're not targeting. So those lawsuits that are going on are really important, and I hope everyone pays attention.

Interviewer (29:41)

So I think I'm hearing you say in response to sort of every chunk of news we've just kind of tumbled through is that. Well, yes, it's a lot of, you know, rhetoric and signaling. It's also a plan, and it is a proof of concept. And you have to understand it as both an attempt to get under the skin of voters and panic them and scare them about, you know, maybe I shouldn't go vote if there's gonna be, you know, masked men harassing at the polls. But simultaneously, it is a proof of concept. It's a way of normalizing and also laying down tracks so that things that might be surprising in November aren't surprising when they happen in February.

Mark Elias (30:24)

And, Dalia, I don't want to be critical of our audience and everyday Americans, but right now, there is violence taking place against ordinary American citizens in Minneapolis and in other cities. And honestly, it has been normalized. It's not that Donald Trump's trying to normalize, normalize it. He actually has normalized it. Like, it doesn't mean we accept it. It doesn't mean we don't fight back against it. It doesn't mean that we don't condemn it and we don't protest it and we don't speak out against it and we don't litigate against it. We do all those things. But, like, he is doing the thing that he wants to do, which is the second time there is a raid on an office will not be as newsworthy as the first, and the third will be less newsworthy, and the fourth and the fifth and the sixth. It doesn't mean people won't still be alarmed or that you won't be talking about it, but the shock value of it will be diminished. And, yes, that is what he's trying to do. But I also want to be clear. It is also what he is doing.

Interviewer (31:22)

I want to actually get back to that in One second. Because I think your democracy work has become so entwined with your work and your critique of how the media covers democracy. And I really think you have kind of trod a singular path in linking those two. So I do want to talk about them. But the other thing, just before we get there, I would love to hear, hear from you. We've talked a lot about the unbelievable scope of power that the Justice Department has if they want to wreck someone's life. And it keeps coming up in the context of mortgage fraud. Right. If they want to go after Letitia James, that's a really easy thing to do. But we talk about it in a kind of a narrow context of, you know, Trump's enemies, who he's systematically targeting with this huge sprawling machine that is the doj. But I would love for you to.

Dahlia Lithwick (32:16)

Lay out for us.

Interviewer (32:17)

Cause I'm not sure people understand what it means to have the Justice Department acting as Donald Trump's election suppression machine. Tell me what that involves.

Mark Elias (32:30)

A few things we can start on the civil side. What it means is that right now the Department of justice is suing 24 states for trying to protect your voting information. These are the kinds of lawsuits that honestly last year or two years ago, I guess now in 2024 and 2023, I would have talked to you about, about being brought by right wing organizations or the rnc, the Republican National Committee would be trying to get data, or some right wing group would be trying to get voting information. Now it's the Department of Justice. So, you know, at a civil level, right before we get to criminal, you have essentially the nation's largest law firm paid with taxpayer money being used to try to achieve an anti voting results in state after state after state. You know, they brought exactly one piece of litigation involving redistricting and that is to sue California. They defended Texas, sued California. That should hopefully put on people's radar screens. Like what does it mean in the civil docket? You know, I argued my fifth case in the Supreme Court in December. It was a campaign finance case. And the reason why I argued it is because the Department of Justice switched sides. They had defended a federal law for 60 years and all of a sudden, under Donald Trump's administration, they decided not to defend it, in fact, to attack it. So like just in the more mundane for a second, Dalia, like having the Department of Justice operate as Donald Trump, Trump's personal law firm against democracy is really problematic. And that's before you get to all the cases that involve civil rights and civil liberties, that The ACLU and Democracy Forward and others are litigating in the criminal context. I do think in some respects there has been too much focus on the Tish James and the James Comey's. I mean, I've come out and condemned it and called it political misuse of the Department of Justice and have been very strongly opposed to it. But those are the high profile cases involving people with a lot of means and a lot of support and a lot of public pressure behind them. But what it means for more rank and file election officials or lower profile people involved in politics or people or voters is that you have people executing search warrants, sending grand jury subpoenas, rummaging through your private papers, rummaging through your personal affairs, FBI agents showing up at doors interviewing you and your neighbors and your friends. And it means a lot of sleepless nights. It means incurring huge legal fees. People talk about this on tv sometimes I watch the news and they're like, well, in the end, there is no case against guns. Don Lemon. Yeah, but like, Don Lemon spent your night in jail. Don Lemon needs to hire lawyers. It's easy for you to say that he will never be convicted, but you know what? He's facing a federal grand jury and a federal indictment and a federal trial potentially. And there's a lot of sleepless nights there and a lot of legal costs. And again, I think Don Lemon in some ways will be fine because he's a high profile figure. But for ordinary Americans, that's a daunting task. That is a bankrupting task. And what it does is it causes people to back away from the line. It causes them to not protest when they're entitled to. It causes them not to videotape ICE officials when they could. Not everyone. A lot of we're seeing a lot of courage, but it has this incremental effect on causing people to back away from activities that are otherwise constitutionally entitled to engage in. And that's what I worry about. Because one of the easiest things for people to do is to be like, you know what? I don't need the trouble. I don't need the problems. I'm just not going to vote.

Dahlia Lithwick (35:47)

Right?

Interviewer (35:47)

Or I used to be a poll watcher, or I'm somebody who has been doing this for 50 years and I'm really scared. I mean, I think the entire infrastructure is really chilled as a prospect of armed masked men walking around the polling places. And you're right, it shouldn't be an enterprise where you're taking your life in your own hands. To do this thing that was just like your civic duty a couple years ago, and now it seems like it's a risk to life and limb. I want to give you a chance. I promised I would. I think you and I came to this realization. I almost want to say we came to it at the same time, entering into this last election cycle in 2024, that we thought America had a democracy problem, but it actually had a media problem. I remember the light bulb going off and you really recognizing that the media just cannot meet the moment. There's a lot of ways. And I don't want to bash you and me and all the other people who are out there working in the media, but I do think elections are uniquely underserved by the current corporate media structure. And I'd love for you to sort of give us your thumbnail of how we continue to underreact and over explain and both sides, because I really do think that this is one of those areas where our failure to meet the moment continues to be even after January 6, even after the 2024 election. It continues to be, I think, our Achilles heal it is.

Mark Elias (37:22)

And you know, I came to this realization because in the run up to the 2024 election, prior to it, there were a series of instances in which the media was treating Donald Trump and January 6th at this point in retrospect as just kind of like a, you know. Well, he and his supporters say this and Kamala Harris and their supporters or Joe Biden supporters say that. It was very disorienting because it seemed to me that there have been moments and things in American history the media understands its role as not the teller of two sides that don't exist, but rather calling balls and strikes on what's right and wrong. And all of a sudden I started to see coverage of Trump both in 2016 and in 2020. But really after January 6th, that just struck me as like, how are they not reporting this from a pro democracy lens, which doesn't mean they have to be liberal or pro Democrat, but like they are presenting two sides to this issue in a way that would have been unimaginable about other things in history. And then what really set me off, because as you point out, and you were very polite about, I've become somewhat obsessed about this, was the media's coverage of what happens when a journalist is challenged with defamation. Like when it comes to the press clause of the First Amendment, the media finds moral clarity. You know, there is no infringement on any act aspect of the press that the legacy media will not speak out in uniform moral terms as right and wrong. And we're seeing that in the news very recently. There is just a right and a wrong when it comes to that. But when it comes to elections and the other constitutional rights at stake, then the media falls into the legacy media falls into kind of much more of a both sides framing. And I just think it is absolutely corrosive to a free society. It is absolutely corrosive to a democracy. And it is an absolute abdication of their role and their privilege under the First Amendment. I mean, the reason we have a free press is not because people wanted to be able to sell corporate advertising. It was not so that people could propagandize on behalf of multinationals who want to sell you schlock every day. It was precisely because out of the crucible of the revolution and the Constitution, there was an understanding that in the political arena, in the arena of politics, that there needed to be the ability of a free press in order to tell the truth. And I just feel like the institutional corporate media has broken that trust. And every time I read an article about what is befalling the legacy media, it is almost always the same reason. It is because you have these very wealthy corporate owners, or in some cases individual owners, but are effectively like large corporations who have decided that they would rather curry favor with the administration than stand up to them. And they therefore want their media properties to that they own, to just kind of like pull a little bit of punches along the edge. That doesn't mean individual journalists do it. It doesn't mean individual editors do it. It's just a collective thing. But look, here's the good news, D. There is a thriving independent media that is picking up the slack. And it doesn't mean it's not a tragedy. And it doesn't mean that there are not going to be huge gaps. There will be. But like, what I would say is the way you began this podcast is the way that the future of media exists, which is you did not hide who you are or what you believe. And then we did a podcast that was very factual. So people can, on the left can listen to this, people on the right can listen to this, and they can judge you and I through the prism of who we are and what we said. But it's factual. But it's also pro democracy.

Dahlia Lithwick (41:11)

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Dahlia Lithwick (42:23)

Let's return now to my conversation with election lawyer Mark Elias.

Interviewer (42:29)

I feel like I absolutely have to give you a chance to explain to us because you've said a couple times, Mark, that you have a huge number of cases that you are currently litigating all over the country in all sorts of ways. And can you just thumbnail for us the buckets of litigation and what people need to be watching for? Because as you and I have said to each other throughout this show, starting to think about this.

Dahlia Lithwick (42:55)

Next September is way too late.

Mark Elias (42:58)

Yeah. So let me bucket it in two different ways. Democracy Dogget tracks all voting and election litigation. So right now, there are more than 160 active voting cases going on in all 50 states. In addition to that, there are 48 active redistricting cases. And if you looked at the 160 plus, they skew slightly anti voting versus pro voting. So, you know, if you think about it, is this a case to make voting easier or harder? They skew more to make it harder than easier. That is largely because of the Department of Justice's involvement. They are involved in 25 cases where they're trying to make it harder. So that's the landscape of, like everything. My work is a subset of that. My law firm is a subset of that. About 80 cases. But they track more or less the same buckets. The biggest bucket of litigation right now, if you set aside those 48 cases involving redistricting, right. Which is like its own sub genre of election litigation, the biggest buckets right now are about access to data, right. Both the voter file cases by the rnc, but also by these other. Right wing organizations that are still trying to get data. So data is a big piece of it. There is a big chunk of cases that involve proof of citizenship. This was very much in the news six months ago or so when the SAVE Act, I think, originally was introduced. This would disenfranchise a lot of married women who changed their last name. It would disenfranchise a lot of young voters who are registering for the first time. And so there's actually a fair number of those cases going on because individual Republican states have tried to adopt their own mini version of the SAVE Act. Beyond that, you have a large number of cases that involve voting by mail and efforts by Republicans to restrict voting by mail. And then finally, what I will call election subversion, the things that go into how you make sure that elections are properly certified and results accurately tallied.

Interviewer (44:54)

So, Mark, I want to end on a big meta question we've been asking ourselves on this show. You know, we did a special election meltdown package with Professor Rick Hassan back in 2020, and we did a version of what you and I just did. You know, here is a, like, tick box of things that can go wrong. And whenever we do that, we reject. Received a tsunami of criticism saying, why are we working so hard to destabilize public confidence in voting systems? And we want people to vote, so we should just tell people, get out there and vote. It's really easy and awesome and foolproof. You know, Kate Starburt, who is, you know, a disinformation researcher, was just skeeting that what Bannon and Trump are doing is using what she describes as an informational strategy called reflexive control that exploits the reaction of us to inflict damage on ourselves. Right. That they cause us to panic and we panic. And then, as you said, the ultimate effect is destabilizing confidence in voting or having people just afraid to go to the polls. And I guess you live squarely in that problem where you are trying to think two thoughts at the same time. One is there are a lot of tangible material threats to voting, particularly I think we now agree when it comes to talking about the midterms. And also, I don't want you to take this to mean that you shouldn't vote. How do you think about messaging this? Because I have to say, I find it confounding. And particularly, you know, as you and I have been speaking over the last couple of minutes, like, there's been moments where I've got like, flop sweat and panic and like, this is scary, scary prospect of gender genuine Violence, Mark. And you're telling people, yes, hold that thought in your head and also vote. And I would love for you to tell us what the message is on part B of that.

Mark Elias (46:54)

Yeah. So first of all, you're exactly right. This tension has been going on for many, many years. It's gotten more acute in the post January 21st time period. But honestly, this was a tension when I was a general counsel to Hillary Clinton's campaign that was we struggled with because, you know, Donald Trump was not exactly a walk in the park, Jeffersonian Democrat when he ran for president the first time. Right. The problem with people who say don't talk about it is that it assumes that we control whether people are hearing about it. There was a time, you know, when President Obama was running for office where this was actively debated among Democrats and among social scientists about how much to lean into Republican voter suppression. And the argument that you hear it made was that when you talk about these things, you cause people to worry that their vote won't count or you make it seem like voting is hard or whatever it is. But that's because at that point, the concern was that Democrats would be raising an issue that's not top of mind. The problem now is that Donald Trump is actually saying these things. So it's not like if. Dalia, you didn't ever mention it. People would never know what Steve Bannon said or people would never know what Donald Trump said. In fact, they would only only know the part that they said. There isn't an option to just have voters not really focus on this because they're otherwise hearing it anyway. So I don't think that that actually currently works. And I think most people who do voter turnout and organizing agree now that that is not an option. So I think there's less tension now than there's ever been, at least in the political world, and I think even so in the legal and social sciences. But to your question about the second part of the message, which is voting. Look, the two things you never hear me say, and I want to be clear, is, number one, the midterm elections are not going to be canceled. Okay? So, like, people who say the midterm elections are going to. Are going to be canceled, I tell them to, like, stop listening to me and stop following me. Like, if you are a the midterm elections are going to be canceled person, I am not your guy. Okay? Number one. Number two, I tell people that if you believe that it is just hopelessly rigged and that it is metaphysically impossible for us to do anything about it. Also not your guy. Okay. I am in the we can fight and we can prevent these things from happening. Like, I am in the we can educate ourselves. We can understand the risks, we can accommodate the challenges in the ways that we have to, and we can fight the challenges in the way we can. And that when we do those things, we can win. And, you know, I would point out that in 2020, we did fight in court and we won. In 2022, people don't remember this, but there were counties in Arizona and Pennsylvania that didn't want to certify the Democrats the winner's elections. And. And we won. And by the way, if you look at what's going on in the courts today, not in the voting arena, but in other arenas, look at how much success groups have had in thwarting Donald Trump from doing some of the worst things he's wanted to do. And look at the success that the no Kings rallies have had. Look at the success that the people with cell phones in Minneapolis have had. There are reports, you know, and we'll believe it when we see it, that, you know, ICE may at least start to deescalate in Minnesota. So anyone who is a fatalist about this, you are doing Donald Trump, Trump's work. Anyone who is a cynic, you are doing Donald Trump's work. He wants you to believe that there is no reason to vote. He wants you to believe that he is all powerful and that he will rig these elections. He wants you to believe he'll successfully steal all the ballots and count them and decide who wins. That's not the message I have for people. The message I have for people is that you need to make sure you are registered to vote. You need to know where to vote. You need to have a plan to vote. You need to be doing that with all your friends and family, but that you also need to be speaking out about these things, that you need to be telling people that there are these risks so that they are doing the things they can do. Because part of the way in which Donald Trump wins is when people are not paying attention and when the only story they're hearing is Donald Trump's version of it. They're believing his lies, but as importantly, they are believing that he is all powerful when in fact, he is 0 for 3 right now in trying to seize those voter files. He is lost. His executive order on voting that he issued as president has been struck down by a federal judge. Like, you need to hear that part of it, as well as the challenges not so that you believe it's hopeless, but because it gives you hope and it gives you a reason to vote.

Interviewer (51:02)

And I also just want to note for clarity that Kate Starboard wasn't in the camp of don't talk about it. I think what she was doing was naming it and then explaining how to correct for it. And I think where she landed in that thread is exactly where you just landed, Mark, which is you gotta get out there and vote. You gotta have a plan, you gotta be in a group, you gotta like, you have to take this in and metabolize it and still do it, because this is a head fake and it is designed to freak you out. And so I think what you're saying is so, so important, which is if you think you're just gonna sort of roll into your polling place in November and it's gonna be the same, that's when this is gonna really, really tackle you. And I also love what you're saying, which is this is actually like a really positive message, like democracy wins over and over and over again and, and it's really hard work right now. But what you're also saying is it's really up to people to decide to make democracy win at their polling places in November. That's how this has to go down. But better be prepared and have a plan correct.

Mark Elias (52:12)

That's absolutely right. And the fact that Donald Trump has figured out how to do some bad things doesn't mean he will succeed in doing any of them. And I do again want to point out that, that this is a place where sunlight is the best disinfectant. Like understanding what Donald Trump is up to will make it harder for him to do those things. So, yeah, make a plan to vote, vote, pay attention and make sure that everyone in your social circles understands what's going on and that they're registered to vote and as a plan.

Interviewer (52:47)

Mark Elias is chair of Elias Law.

Dahlia Lithwick (52:49)

Group, a mission driven firm committed to.

Interviewer (52:51)

Helping Democrats win, citizens vote, and party progressives make change. He's also the founder of Democracy Docket, the leading digital news platform dedicated to information analysis and opinion about voting rights in elections, in the courts. Mark, I just want to thank you. I think that we get locked into a lot of kind of cliches and old tropes when we talk about voting rights. And it means that it's hard to talk about it in a way that is urgent and fresh. But what you've really done today for me is unpicked the cliches and the tropes and made it really real and made it even scarier but even more important. And I don't think anyone does that the way you do. I'm so grateful for your work. Thank you for being with us this week.

Mark Elias (53:33)

Thanks for having me.

Dahlia Lithwick (53:36)

That's all for this episode.

Interviewer (53:37)

Thank you so much for listening and.

Dahlia Lithwick (53:39)

Thank you so much for your letters and your questions. Please keep them coming. We are reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube and you can rate us and review us on Apple Podcasts. On today's Amicus Plus Bonus episode, Mark Joseph Stern and I are talking about the de facto dismantling of due process for immigrants at the hands of incompetence and malfeasance in all kinds of measures from the U.S. justice Department. You can subscribe to Slate+ directly from the amicus on Apple Podcasts and Spotify, or you can visit slate.com amicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus Senior producer. Our producer is Sophie Summergrad. Hilary Fry is Slate's editor in chief. Susan Matthews is executive editor. Mia Lobel is executive producer of Slate Podcasts and and Ben Richmond is our senior Director of Operations. We will be back with another episode of Amicus next week.

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