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- [00:00]
A
Hey, everybody, Tim Miller from the Bulwark here. We're back with our new friend, newish friend, Mark Elias of democracy docket. I'm sure you know him, you should be monitoring his work. He's a Democratic campaign lawyer du jour who now is leading the fight in a lot of courtrooms against Donald Trump's attack on democracy. I wanted to grab him because I am, I'm pretty alarmed by the statement that Trump put out on Truth Social, the bleat he put out about mail in ballots. I want to read that for everybody. But first, Mark, I guess I'm wondering could you give us kind of an alarm scale for you on what you're seeing out of, out of the White House today on mail in ballots?
- [00:38]
B
Look, I think it's very alarming. I think anytime the president United States says that he is going to shut down the predominant method of voting in a quarter of the states, a method of voting that Democrats disproportionately rely on versus Republicans and to boot is also going to attack unspecified voting equipment. We're not sure what voting equipment this is that he's attacking, but he's going to attack that. It is something we have to take both literally and seriously.
- [01:05]
A
Yeah. So here's the statement begins, I'm going to lead a movement to get rid of mail in ballots. And also while we're at it, highly inaccurate, very expensive and seriously controversial voting machines which cost 10 times more than accurate and sophisticated watermark paper which is faster and leaves no doubt. Okay, so we'll settle that for a second, but we move forward. He goes on to talk about how he has an executive order plant. He signing an executive order to help bring honesty to the 2026 midterm elections. Remember, the states are merely a quote, agent for the federal government and counting and tabulating the votes. They must do what the federal government, as represented by the president of the United States me tells them for the good of our country. There's a lot there, but you missed.
- [01:51]
B
The punctuation, the capitalization, the occasional quotations around words.
- [01:55]
A
Yes.
- [01:55]
B
Tim, you and I share something in common. You worked for Jeb Bush, I worked for Hillary Clinton. And there times like this that I just think how the did we lose to this guy?
- [02:04]
A
How, how. You know, we got called low energy. I hear you. There's that element of this as well. And you know, we could do a whole separate show on that. But for me, like I just look at this Mark, I wanted to have you is like if there's this executive order, I Mean, you know, who knows what that actually means? But I think that there are real threats. If you're a red state, you know, to vote. If you're a voter that uses mail in red states, that is an issue. Last time you were on the pod we talked about. I think he's laying groundwork here for challenging these elections in the post 2026. If you look at a. At the states that have mail in ballots, which is a lot of states where Democrats could gain next year, Nevada, Colorado, California, I think that is there. Like, what do you, what when you read that? Like, where, where, where do you see the biggest, you know. Threats?
- [02:52]
B
Yeah, so I see three. Three threats. The first is a very practical threat, which is that, as you point out in some states where Repub. The. The state government, what he may be talking about by leading a movement is not an executive order, but rather getting those states to decertify their voting equipment, or at least parts of it, and to change their laws, to do away with voting, mail in voting, which by the way would be catastrophic unto itself because most of these states don't have. When you, when you institute widespread mail and voting, including by the way, in states like Florida, in states like Arizona, in states like Utah, one of the things you do is you don't have as many places to have pol locations, you don't recruit as many election workers, you don't buy as many voting machines. So the doing away with mail in voting even, or they're curtailing it in those states would have a dramatic impact on all kinds of voting and create all kinds of lines and displacement. So that's kind of like problem number one, problem number two, or thing number two that I worry about is this so called executive order. Remember, it was in March that he issued his last executive order targeting voting. My law firm and I sued him on behalf of the Democratic Party and we won the partial victory we needed for this stuff that was immediate. That litigation is ongoing. But he has made clear in a variety of cases that he believes that he is the first, second and final word as to what the law means with respect to elections. Now, that's not true. It's unconstitutional. It violates all notions of the law, rule of law, but that's his attitude. And then the third, and this is the thing that actually, Tim, I see the least commentary about, but I think is actually the greatest threat is that last part that you read. He believes in his structure of government. The states act as agents of the federal government and he sits on top of the federal government. Why do I say that's the most dangerous part? Number one, it's, it like runs contrary to the history of the Constitution, contrary to the text Constitution and with respect to elections, you know, can't be reconciled with the Constitution. But I think, Tim, if you look at what he is doing with respect to the National Guard, you look at what he's doing with respect to deploying the military in states like California, you look at what he is doing with the masked grabbing of people off the streets and it actually speaks to this structure, which is that he believes that sort of all layers of government level up to him and that he is ultimately in charge not just of the executive branch, unitary executive, but actually in charge of the entire federal government and that all state and local police power and election authorities and law enforcement all respond, all, all are at his command. And that will be catastrophic for 2026 midterm elections if, if he's able to effectuate that. But I would argue, Tim, that's part of the catastrophes we're seeing every day.
- [06:02]
A
In the news, which just say for the non constitutional scholars out there, in case you're wondering, this is his statement about how all of these local elections, you know, level up to him as the, you know, chief head executive in charge of everything. It's just objectively not counter to what is in the Constitution in the same way like birthright citizenship. I got one of the close calls. Article 1, Section 4, Clause 1 says that states have authority over the quote, time, places and manner of election administration. So.
- [06:31]
B
Right. Subject only to congressional override. And what's interesting is it doesn't say anything in there about the president. Right. It says that the states have this power subject to congressional. Congressional override does not mention the President by design, by the way, by history. And also, as long as we're doing a little bit of a background lesson here, the fact is the Constitution was a confederation of states, right? The reason we have a Senate, as flawed as the system is, is because states have representative at the federal government. In fact, members of Congress are chosen by the way in which states choose to have them chosen. So this notion that somehow there's the federal government and states do their do business, you know, that that would, by the way, not just be untrue and not just, like I said, ahistoric, but also, Tim, as since only one of us in this has ever been a Republican, you know, isn't it the Republican Party that preaches the virtue and the critical importance of federalism, that is actually states that have the Primary responsibility for so many things.
- [07:38]
A
Yeah, having. Wasn't it my people, usually they're throwing back at you or my former people throwing back at you. We're a republic, not a democracy. Every time I div for democracy. That's the fundamental underlying point of that argument, right? Which is that like, this is not a just. Our country is not set up as a direct democracy where everyone votes on everything. We have a federated republic and states have powers, localities have powers. We used to, we being. It's not we anymore. But the Republicans making that argument, I guess we in the sense of people who still support that traditional system of government would argue that, yeah, government is better closer to the people. We want local, we want localities to make these decisions. Not that we don't want Donald Trump, the king, to be like, no, Colorado, you cannot have all mail ballot elections because I think that's unfair. Like the people of Colorado and their elected representatives would decide to do it. And by the way, Colorado has been having mail in ballots for quite some time now without any issues. And the only time any issues arise are when Donald Trump or one of his goons like Tina Peters, you know, decide that they want to monkey, you know, try to jimmy up the works.
- [08:46]
B
Right. As does Washington state and Oregon, as does Utah and Hawaii. And when you get beyond the states that are near, virtually all are all mail in voting, you get to states like Arizona, which has, I think 75% of the people vote by mail. Florida, which frankly, Republicans took power in Florida in large measure because they were, they were superior at running vote by mail programs. Georgia's got votes vote by mail. Like, I mean, the notion that somehow, you know, this is all a Democratic conspiracy is bonkers.
- [09:22]
A
Okay, so just back really quick to close out on this and why I wanted to have you on and just kind of how to fight back and what the threats are. I mean, to me, some of the stuff like arguing about the specifics or educating people on the specifics of mail in ballots and why they're safe I think is important. But it's kind of like Donald Trump is just looking for any pretextual reason to take more control over the elections federally, potentially to send in his mass thugs and potentially, worst case scenario, it's something that we're careening towards challenging results. He doesn't like to prevent Democrats from actually taking over the House and the post election of 2026. And so, I mean, like, there are multiple kind of steps here. But you know, what do you see as the ways to start to push back on that and educate people about. About the danger of where we're going.
- [10:13]
B
Yeah. So, look, I think you make a really important point. And I say this to people who say, you know, when they say, well, you know, Donald Trump got more of the black vote. Yes, he got more of the black vote, but he still lost the black vote. So when people say, and I've seen some of this on social media today, well, you know, Republicans did a lot more with vote by mail last election. Yes, they did more. But still, the overwhelming majority of Democrats of places that have vote by mail, more Democrats than Republicans utilize vote by mail. So you can expect that in 2026, that pattern will continue. And what that means is that Donald Trump will not be able to stop mail in voting before Election Day. I don't believe he's going to be able to. The courts won't abide by it. I don't think he's going to be able to achieve it in large chunks of the country where there's either mixed government or Democrats control the process. What he will do is what you said is that he will set up a permission structure before election Day that you don't need to count ballots that are cast by mail. In fact, not only don't you need to, you shouldn't be counting ballots cast by mail because they are inherently suspicious, they are inherently fraudulent. Then when you are in the post election and Mike Johnson is rummaging around for a few extra seats here and there, or John Thune needs a couple of extra seats here and there, Donald Trump will use the power of the federal government, the FBI, the military, whatever, to the Department of Justice to claim that there was widespread fraud in these ballots. And that will allow Republicans to say, aha. Those elections that Democrats won in those places were fraudulent. And the way we know it is because they used this ballot system that we told everyone was fraudulent in advance, and now it turns out it was fraudulent. And that is a real risk that we face as we head into 2022. And we all need to combat it. But combat it. We need the legacy media to stop both sides in this. I mean, some of the headlines I saw today from, from the New York Times and the Washington Post were just.
- [12:20]
A
Like, like, I mean, like, proposes reforms to the election system.
- [12:26]
B
Hold on, I'm gonna, I'm gonna give this one to you in real time. The headline in the Washington Post is, Trump Previews Executive Order on Voting. That's it. Previews executive order voting. Like, like, but the executive order would be illegal. Like, it would be Unconstitutional. Like, like he's not previewing an executive order in the way in which, like, you know, you know, Joe Biden declared National Bald Eagle Month.
- [12:50]
A
Yeah. Right. Previewing what he was going to say in a speech at the State of the Union. Right. It's just like it's these old habits dying hard, you know. Yeah.
- [13:00]
B
So look, I mean, part of the reason why I love the Bulwark is that you guys tell it like it is. It's part of why I started democracy. Not going to tell it like it is. But we need the legacy media to really step up their game here and like, tell it like it is. What's, what's happening. And then we need citizens all around the country to understand that this is a potential thing that they will face and you know, call, call their legislator, show up at county election board meetings. Like, don't see the grassroots energy around this, which has been really strong in the Stop the steal.
- [13:31]
A
Cleta Mitchell be the last thing I would ask you about. So because think that's a really great point there. There were weeded and you did. There were warnings going into 2024, you know, about if you listen to Steve Bannon show, if you listen to what's going on tposa, there have been a lot of MAGA folks activated to take roles at local, you know, in local, local election boards, you know, in, in roles at the county level. And you know, you see this sometimes and particularly now you get the House races in places that will matter. Right. Because it's in red states, you know, where, where they're ha. Like, look at the Don B. Right, where you have a. Nebraska. Yeah, right. In Nebraska you got a MAGA local election official in one of those counties that is going to do, you know, what Donald Trump wants. So that didn't end up really coming to fruition in 2024 because Donald Trump won. So he had no incentive to challenge elections. But those people are still there. And so like, how worried are you about that in 2026 and are there things that, that, you know, folks on our side can do to get more involved kind of at the local level and the election administration side of things. Things?
- [14:35]
B
Yeah, look, I, I, I'm very worried about it. I mean, just to rewind the tape not all the way back to 2020 when we know that was Donald Trump's plan because he tried to do it in, in Michigan and elsewhere in 2022. Right. The first midterms after 2020, my team and I, we had to sue Cochise County, Arizona because they were refusing to certify the election results. We had to sue two counties in Pennsylvania because they were refusing to certify the election results. Like, this is not a hypothetical. We saw this in 2022, we expected it in 2024. And as you say, the is because Donald Trump won. So it is something I'm very focused on in 2026, because what's happened over time is that the election deniers have multiplied in these local election boards. Right. It has gotten. Every election cycle, there are more and more of them as good people get sort of pushed out, and unfortunately, bad people get pulled in. And also think about it this way, Tim. You know, in 2020, when Donald Trump tried to prevent the certification of elections in Wayne County, Michigan, it was kind of a national. I mean, it was a national story as a national uproar. I'm just not sure that the, that the media would cover it as anything other than just like sort of the latest political tactic, you know, I mean, like, you know, so, so I'm not sure that there will be quite as much outrage from many of the institutions, which means that it is ultimately up to us and people who watch this video to inform themselves about how elections are run in their state, how they run at state level. Unlikely are they run at the county level. Most places. Some places are run at the town level. The, the, the, the. The precinct. I mean, in New Hampshire, most, almost everything is done at the precinct level. And figure out where your elections are administered, and then, you know, if you have time to become an election volunteer, that's great. Election worker. They always need them. But if not, you know, be involved, go to meetings, you know, pay attention to what's happening. And don't assume that without citizen participation, everything will just be okay.
- [16:42]
A
Right. I appreciate you. Marcolias Democracy docket.com? i saw it was lit. I didn't actually see the headline of the New York Times article you referenced, but I saw the tweet that they sent about the art promoting the article about Donald Trump's social media post about his executive order about trying to the federal takeover elections. And I was like, fuck, this is a big deal. I got to get Mark Elias on this. We got to tell people what's really happening. So I appreciate you jumping on, and unfortunately, there'll be many more opportunities for shenanigans like this for us to talk again soon.
- [17:11]
B
All right, I look forward to it. And maybe I'll get on the big stage with you again on the main podcast.
- [17:15]
A
Oh, you'll be back. Don't you worry about it. Don't you worry. We'll see you soon.