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Foreign.
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Welcome to Talking Feds. One on one deep dive discussions with national figures about the most fascinating and consequential issues defining our culture and shaping our lives. I'm your host, Harry Littman. As we move down the road to the midterms, the first person I try to check in with periodically who knows all about the various gimmicks and dirty tricks that Trump and company are trying to pull to put thumbs on different electoral scales wherever they can, and indeed, who's involved in suits with the administration. And we were just talking over 90 different cases. So Mark Elias. As everyone knows, he's the founder of Democracy Docket the, the leading news outfit covering the legal battles to protect voting rights and fair elections, and is as well the firm chair of the Elias Law Group and a nationally recognized authority in voting rights, redistricting and law. And Mark, congratulations on six years of Democracy Docket, which you just celebrated. And thanks for being on talking, Fitz.
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A
Thanks for having me on. I just wanna clarify one thing. Not all of our 90 lawsuits are against the Trump administration. We are suing lots of republic controlled states and counties and some Democratic controlled states. We, we sue wherever free and fair elections are at stake.
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B
It seems at any given time, Mark, there are several Republican tricks or strategies on the horizon, some higher profile than others. The two that are front and center this week, it seems to me, are the Save act and Mail in voting. Let's start with the act, which is Trump's number one prior priority, among other things, that would require documentary proof of citizenship, such as a passport or birth certificate, to register to vote in federal elections. Okay. It sure seems by the enthusiasm that Trump and his circle have for this, that it would be or is designed to selectively disenfranchise Democrats. And you agree? What's your take there?
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A
Yeah, look, I think that you hit on probably the most important point in that this is Donald Trump's top priority. I mean, everyone should just like think about this for a second. We are in the middle of a war. We have gas prices skyrocketing. We have an economy that is struggling. And Donald Trump's top priority is passing a voter suppression bill. And I start there because we all need to keep in mind that the only thing Donald Trump cares about is keeping power. And therefore it makes sense in a perverse way that the thing he cares most about is a massive voter suppression law. I do want to give your audience a little bit of the background on this, and by that I mean literally the background. I don't think we need to go into all the details of the provisions, although I'm happy to. This Bill began in 2024 when Mike Johnson was at risk of losing his speakership. And so this was essentially the result of a hastily scheduled press conference in Mar a Lago when Mike Johnson, Donald Trump's out of power at this point and Mike Johnson may wind up losing his speakership in a vote that Marjorie Taylor Greene said she was going to bring forward to vacate the chair. And so Mike Johnson goes down to Mar A Lago and basically says, we're going to introduce a new bill that requires, you know, triple, quadruple times certainty that no, no non citizen votes and Donald Trump is happy and he endorses Donald Mike Johnson and the rest is history. And at that point, people just thought the SAVE act was done, like this was a message bill. This was not a serious piece of legislation. This was not on anyone's radar screen or agenda. It was just the kind of stuff that, you know, people, that people in Congress introduce for a short period of time in order to get through, you know, make a, make a point. And it sort of sits there, it passes the House, doesn't go anywhere in the Senate until January of this year, when all of a sudden Donald Trump says, not only do I want this bill that at that point only had proof of citizenship, it was the only provision in the bill. He says, no, I want the Save America Act. And he endorses this new bill that includes both these very harsh things about registration, which, by the way, not only is it hard, harder to register to vote, and all the millions of married women who change the last name would face new obstacles and be disenfranchised, but it also would do away with online voter registration and any voter registration that is not at an election office. Okay? So it has that. It also adds the ID requirements that you've heard them talk about, but it also requires the purging of voters. Right? It requires the states to send their voter records to DHS every year. But here's the thing, Harry, even that wasn't enough for Donald Trump because that's the bill in January, by the time we get to the State of the Union, he has unilaterally, without asking Congress, without anything. He's unilaterally added a ban on mail in voting, except for people who are in the military or sick. And now attacks on the trans community. And so, like, he's just a one man wrecking crew. He doesn't have the votes in the Senate to get this done, but he's Insistent that he won't move on to anything else until they do.
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Yeah, and he's as much as said, we're going to lose without it, we're going to win with it. So. But I said they won't lose.
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He has said they won't lose another election in 50 years if they pass this bill.
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B
So, you know, what more would you need to know? However, I served this up to you on purpose, Mark, because on our podcast Talking Feds a couple days ago, you had a well respected Republican commentator, David French, say, I think the Rs are miscalculating here. Given that there's been a general switch and the Dems are now the party of college graduates and the Rs of non college graduates, this might actually not help and even undermine Republican voting. Why do you think that's wrong?
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A
Yeah. So first of all, with all due respect to David French and many, many others on the left and on the right, the political parties have a pretty good idea of what voting laws benefit them and they're not going off of these gross generalizations of, well, there are a lot of college educated voters. The fact is that when you require proof of citizenship, and it's why I mentioned what I did, you will negatively impact three communities. Okay. Number one, I mean, you'll negatively impact everybody, but you'll negatively, you'll disproportionately impact three communities. Number one, you'll disproportionately impact women. We know there is a gender gap in the electorate and people who say, yeah, but isn't it mostly conservative? Aren't conservative women more likely to change the last name than liberal women? The answer is it just affects a lot of women and it particularly affects a lot of older women. And if you look at where Democrats have a big demographic advantage, it is actually those older college educated women. Right. So like there is a gendered component to this that would, that I think Republicans think would help them. The second thing is that, you know, banning online voter registration, that hurts new registrants. And who are those? Those are young voters. So we oftentimes in our discussions about demographics, we overlook the most obvious one, which also has, is the most sensitive demographic to electoral changes, which are young voters. So if you ask who are the big losers in almost any voter restriction bill, the answer is almost always young voters. Now it may be young black voters in some circumstances, young Hispanic voters or young white voters or college students. But like young voters are the easiest group to suppress because they are not already in the system and therefore any new barrier is harder for them than someone than someone like you who is comfortable with the whole system. And so now you're just adding new
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B
components to it and actually has a passport. Yeah, fair enough. So you mentioned just in passing he doesn't have the votes and he's trying every which way. He's pushing to have Republicans defeat the filibuster. He's trying to insert the SAVE act into the now the DHS refunding provision. How solid is it the and do you see it as basically an impregnable non majority but lack of 60 votes so that this just ain't passing or do you think it's much more touch and go?
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Look, I mean I'll say the most obvious thing which is that the Republicans don't consult me on their Senate legislative strategy. So I'm going off of what I see on TV the same way you do, which is number one, they don't have 60 votes and they will never get to 60 votes because that's just never going to happen. So then the question is can they break the filibuster? And it does not appear that they have 50 votes to do that. And there appear to be a number of very prominent Republicans on record saying they'll never vote for that. And John Thune has said he doesn't have the votes for it. So I take him at his word. The next is can they force a talking filibuster? This was the idea that Mike Leaf loaded. So far we have not seen a talking filibuster. And this is important for people to realize what's been going on the last week is Republicans are holding the floor and talking. That is actually the opposite of a filibuster. The filibuster is when you make the other party talk. So I don't believe they have the votes for a talking filibuster because they haven't been forcing Democrats talk at all. They have been forcing their own side to hold the floor. So I assume that's dead. So then you get to reconciliation. And here all I can do is go off of the experts who seem to be uniformly of the mind that this would not qualify for reconciliation. That also seems to be the view, frankly of the proponents of the SAVE act in the Senate who also don't think it should go it can go through reconciliation. So it doesn't appear that they have a path forward with this bill. But I'm not sure Donald Trump minds that because he'll move on to unconstitutional power grabs, executive orders and the rest.
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B
Yeah, I mean this is a really good point. We just saw my concern when I saw ICE being dispatched to airports is it's a sort of first move to get people used to the notion of ICE as a roving police force. And what do you think of first and foremost elections? Let me ask.
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And Steve Bannon said that. Steve Bannon on his show said that this was a brilliant move by Donald Trump. I mean, it had all of the usual flowery nonsense, but he said that they are doing this because it will get ice, as you say, normalized. Also, they'll be in the ID checking business and people will be used to the idea that you show up and ICE is there checking your id. Now, I don't know whether ICE is actually doing that at the airports, but. But Steve Bannon thinks what you just said, Steve Bannon thinks is true.
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B
Yeah. And he knows better. And they're also, of course, in the general intimidation business. And that's part of. You've made this clear, Mark. But the overall strategy is to get many different mix and match strategies and especially in individual states, deploy them depending on what's going on on the ground.
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Absolutely.
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B
All right. Mail in voting, a mainstay now of the American system. Indeed. This morning we learned that Donald Trump just cast his ballot and Palm beach county in a mail in way, as you say they are, they are attacking. I wanted to focus on yesterday's Supreme Court argument which had a fair bit to do with this. So you know the issue, but just for listeners, the. The Republican National Committee and are is arguing that the federal statute from 1845 that says election Day is the first Tuesday after the first Monday in November somehow precludes states from permitting something that 18 states do, the counting of ballots that are postmarked and cast by the end of the election and are received a few days later for all kinds of reasons, vicissitudes of mail, things from over sees as you, as you say. But the voter has done the voter's part. The commentary was all over from Trump losing, Trump winning. Who knows what was your sense of the argument. And if you don't mind, this is a compound question. Sorry about that. But let's, let's explain the stakes not only in what it might do, but the sort of chaos of a potential ruling. What's on the line here and how do you sort of handicap what's coming?
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Yeah. So just in complete disclosure, I represented the intervener defendants in the case, actually sought time from the Supreme Court to present oral argument that was denied. The state of Mississippi opposed it, saying they wanted to handle the argument by themselves. So I've paid very close attention to this issue both in Mississippi and before it. I litigated cases on this issue elsewhere. I think you laid out actually the legal issue really, really well.
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B
And it's pretty simple issue really.
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See, this is right. So the point I was just going to make like part of what struck me at the argument is how overcomplicated this frankly got. And you know, look, I've argued five cases in the Supreme Court. I know it's hard, but I felt like at times the Mississippi Solicitor General let this get over complicated. Like here it is in a nutshell. There is a law that says that Tuesday, that the Tuesday following first Monday in November is the election day for federal office. Otherwise the only other sort of big ticket item in this is that states have the authority to set the time, place and manner of elections unless Congress passes a law otherwise. So the default position.
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Constitution.
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Yeah, right. And that's Constitution. So default position is states get to regulate their elections unless Congress says otherwise. Congress here set election day as the Tuesday following first Monday in November. So the question is, does that preclude these ballots that were mailed by the voter on or before election day and postmark on or before election day but received afterwards? To me, I listened to all of this and the justice is asking, well, what if a state did this and what if a state did that? And I'm left there being like, am I just like the old fashioned conservative in the room? The states get to decide like this is like you justice may not like it, you may not think it's good policy. I may not think some of these things that the hypotheticals are good policy. I wouldn't vote for them if I were in a state legislature. But that's what the states get to do. They get to decide how to hold these elections. And the bench used to have on it a lot of conservatives who had this sort of very narrow view of judicial role in second guessing state election power. Now it seems like the conservatives on the court only want to second guess it when it is to the, you know, when it's restricting voting rights. And on something like this they seem very much like policy asking a lot of policy making questions. Now I want to address the, the thing you, you didn't ask but was implicit in your question, which I too want to comment on or want to note because I thought it was really noteworthy. I mean Harry, I can't think of a case where so many news outlets had so many opinions on the Outcome that were so varied. Like, I've had cases where they have a lot of strong opinions and they all agree. I've had cases where they all just say, you can't really tell from oral argument who's where. But I was struck by the number of news outlets, very reputable reporters, who thought this was definitely a win for the. For. For Trump or this was definitely a loss for Trump. And, And I, I, I don't know. I don't know if you argument. I mean, I'll tell you, my own analysis was there are three justices, the three most conservative justices, Thomas Gorsuch and Alito, who clearly are going to, I think, side with the RNC in this case. In fact, they might go so far as to say there shouldn't be early voting because early voting also contra. Contravenes the statute, even though they're not taking the position.
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B
But the United States, but. Yep, go ahead.
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Yeah, I'm just saying. But I think that there are three justices who are like, election day means everything's done on election Day. And, like, this is out of bounds. I think there were three justices, the liberal justices, who I think are clearly on the side of counting these ballots. So that leaves the chief, who asked almost no questions, although to the extent he did ask a question, it was more friendly to our side than the other side. But he didn't. He didn't have a lot to say. There was Justice Kavanaugh, who was probably the opposite of how I just described the chief. He was probably. He did not give his hand away, though. That limited number of questions he asked were a little tougher on our side than the other side. So those two wouldn't surprise me either way. But each of them, I think, gave a little bit of a tell. Then you have Justice Barrett, who I think actually is gonna decide the case. I think wherever Justice Barrett goes, one or the other of the two that I just mentioned will wind up giving her a. And she asked very tough questions of both sides. Like, she asked very tough questions of both sides. I will tell you, I was very worried early in the argument when she was asking her questions of Mississippi because they were tough questions. And I didn't think that the Mississippi Solicitor General had won her over on some of the points. But then by the end of the argument and hearing her ask the questions on the other side, I actually felt like, you know what? I actually think she's going to, in the end, land in favor of counting these ballots. I think the thrust of where I felt like she ended up was this is a very old law that doesn't map onto that everyone's trying to map onto from voting in the Civil War era to today. And it actually doesn't map perfectly for anyone. And so let's just go back to the plain language of the statute and it does not prohibit this. So we're going to let the states decide. I wouldn't be shocked if it came out against us. I wouldn't be shocked if it was 6, 3, 4 U.S. but that's kind of where I landed.
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B
That's really, I think, trench. And let me just add a couple thoughts there. First, I think Kavanaugh, it was pretty well lost based on his questions. I could be wrong. I'd also add you made the policy point that the three on the right were actually. They've so drunk the Kool Aid they were actually talking about. Don't these tend to promote fraud, et cetera? I think Barrett, you're right, really seemed to make the point that just seems correct that if you take the position to its logical conclusion, you shouldn't permit early voting. And my sort of tentative pessimism, and this is a jaundiced view and I try not to have jaundice views about the court, but all the cases that really seem to have real political consequences for Republicans versus Democrats, I can't think of one offhand sort of a sheer political case where the Chief justice hasn't in the end voted with the. With the R. So your suggestion, I think is compelling that if Barrett doesn't go that way, he might not. I see it as a 5, 4 case either way. But I'm. I'm a little less sanguine about the chief.
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A
But now there was, there was one, there was one other wrinkle that is truly a wrinkle. And it's the reason why I put Kavanaugh a little bit more in play than I think you do. Although I think you fair. I think you accurately described the argument. He asked this question about the Purcell Doctrine, which says essentially the Purcell Doctrine basically says that there comes a point in an election undefined by the doctrine where it is too late for courts to. To change the rules of elections, confuses the election officials and the voters and causes more trouble than it's worth. Okay. That's essentially what it is. And Kavanaugh has been a very staunch supporter of drawing that line relatively early in an election cycle. And he asked the question of Paul Clement, who's who, one of the best oral advocates in the country who represented the rnc won't we be at that point for this case, for this election cycle, and Paul did the best he could with nothing, which was to say no, like it wouldn't be too late. You know, the question I have is, you know, is Justice Kavanaugh, like, how, how is he going to resolve that in his own head? Like, does he say, yeah, we do impose this, but it's not in, it's not in place for 2026, you know, or does he just dodge the question, as I'm hoping, by being like, you know what, I'll just side with, with Comey Barrett and the liberals and this
- [22:21]
B
will survive, which a rigorous application of Purcell would suggest. But, okay, I think we've really laid out where we are and your time is limited. And I really want to focus on. I mentioned some of these things being high profile, others being low profile, but we have an overall effort across the country on the part of the administration to get their claws on the kind of data that Trump not having in 2020 and 2021 was not able to make as much trouble as he wanted. I just need 1900 votes from Georgia and the like. We've seen a questionable but so, but successful effort to serve a search warrant in Georgia. And then in Arizona, just the Republican head of the Senate just rolled over. I wanted to get your sense of where that overall national effort stands. And, you know, are they in. They really are focused on swing states. How far down the road of just getting their mitts on what they could use in the wake of an election to challenge things, are they?
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A
Yeah, I would add, by the way, to that list this weekend we learned from your home state that actually a local sheriff, as I understand it, who may be running for governor.
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B
He is, he is just. Just see 65,000 ballots. It is the kind of raw power grab that happens in elections. And it's so hard, you know, this better than anyone in the country to unscramble the eggs and things are moving. He just, boom, took it with the same phony baloney pretext of there's, you know, some discrepancy out there anyway, anyway.
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A
So I, I throw that out there just because, like, you know, it's not just apparently ballot seizures, not just for the federal government anymore. Maybe if you're now just a local sheriff running for office, you just grab. You just grab some ballots. But any event. So look, DOJ is still trying to get access to all 50 states sensitive voter files, which is the most granular information about every single person listening to this podcast who's a US citizen and a registered voter. It tells them where you live, your Social Security number, your date of birth, whether you're registered Democrat or Republican, whether you vote in primaries or only in general elections, whether you vote absentee or in person, whether you vote, whether your ballot has ever been challenged. I could go on and on. It is a wealth of information and they want that information about every single American citizen who is registered or who's ever registered to vote. And they have to get that from the states. And they're. And they went to all 50. They have sued 30 of them. My law firm and I, we are fighting them in every state they have sued. That includes the District of Columbia, I should add. Some states have voluntarily turned them over. I don't have an exact number, but it is, it is probably someplace in the 15, 16, 17 range is I've voluntarily turned them over.
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B
And the reason why they want a particular official has. It's not at all clear in all those instances they have the authority, but it's once, that's. Once it's gone, it's gone.
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A
That's an excellent point. That's right. This is one of these things where possession, you know, it gets on a thumb drive or whatever, many thumb drives, whatever it is, and that's that. And look, what I will tell folks is that, you know, the Department of Justice says they're going to use this to run checks against fraud and illegal voting and all that. I'm here to tell you as someone who has been representing candidates for 30 years and the Democratic Party for 30 years, that the voter file is the most foundational building block of anything you do in politics. So if you want to register voters, you need the voter file. If you want to turn out voters, you need a voter file. If you want to take a poll, you need a voter file. And the fact is, if you want to challenge voters, you need the voter file because you need to know who to challenge and you need to know what criteria criteria to use to frame your challenges. So if you want to disenfranchise, say 100,000 people in the state of California, you need to generate a list of 100,000 people. And you need to know a lot of information about who those a hundred thousand people are and what common characteristics they may share in order to lodge those challenges. And so anyone who thinks that the Department of Justice is going to get this information and not be susceptible for other uses, that's not trust I'm willing to have in Pam Bondi and, and, and her ilk. So look, we're going to keep this fight up. He's obviously frustrated by the fact that they keep losing. They've not yet won a single one of these cases. They've lost every place that's decided it. Their cases on our appeal right now in the 6th Circuit and the 9th Circuit. But this is why it's also in the SAVE act, right? The SAVE act is trying to and run this. I'm Michael Waldman, host of the Briefing podcast. I'm a former White House speechwriter, a lawyer, and a constitutional scholar. And I'm president of the Brennan center for Justice. We work to repair and strengthen American democracy, from gerrymandering to abuse of presidential power, from Supreme Court reform to congressional corruption and more. What fun. You're going to hear new ideas in this podcast, and you're going to hear about the strategies and the legal and political fights that will shape the next phase of American politics. If you care about our democracy, the Briefing is a podcast for you.
- [28:06]
B
Final question, as you've just put it. I kind of see you, Mark, as a, you have a couple helpers, but basically in the movie with a sword fight, where they're coming at you from all directions and you're putting your parrying at each turn, and you really are. But here we are, we're less than six months from the election. Is Trump mainly losing his battle to overhaul? Where do we stand in the bigger picture of, you know, in the fourth inning or whatever, what's the score? How do you feel the good guys are doing?
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A
Okay, so here is the good news and then the challenge. The good news is that Donald Trump is following the traditional path he follows, which is he tells lies. He then makes those lies even more outrageous, extreme and offensive. Then we go into the courts and a legal process, and he loses. Okay, so, like, look, I'm not saying we're going to win every case. I'm. You and I are both sitting on pins and needles every time the Supreme Court announces new decisions, because God knows what they're going to do in the Klay case involving the Voting Rights Act. You know, there's a campaign finance case I argued earlier this year. There's now this, this, this ballot, ballot receipt deadline case out of Mississippi. Right? So, like, all is not well in the courts, but they're relatively holding up. Like, we continue to see, you know, them do more to stop the administration than anyone else. The problem is, Harry, is that what happens is when Donald Trump finds himself losing in that forum, that is when he activates the most extreme and ugly form of activity, whether it is inciting violence on January 6th, whether it is what we saw ICE do in Minneapolis. Right. He is someone who is willing to go beyond just what the courts say and push things to a place where people's lives are, you know, are, are threatened and, and where, you know, there's real consequences to the actions taking place. And it's not beyond me that, that, that we see that come this November. So I'll keep fighting in court and I know you and I will keep fighting together in the court of, and trying to sound the alarm. But everyone listening to this needs to do their part also. And like, you all need to speak up and stand tall like the people of Minneapolis did. And the time to start standing up is right now, before it gets to that point.
- [30:38]
B
Mark, it's always a privilege to talk to you. I really hope we can check in every so often as we move to the very, very consequential November date. Thanks for your time today.
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A
Yeah. And thank you. And I never let you and I either you interview me or me interview interview you without pointing out you're one of the true American heroes here. And I don't just say that because you have a great podcast and get out the word. But for people who don't know your backstory, they ought to go Google it. You probably don't have time or you'll blush if I go through it now. But when the chips are on the table, you stood up and did exactly the right thing that we ask everybody else to do. And I wish there was half as much civic courage going on out there right now than you've shown.
- [31:21]
B
You're very kind. And back at you. Talk to you later. Thank you for tuning in to One on One, a weekly conversation series from Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. You can also subscribe subscribe to us on YouTube, where we are posting full episodes and daily updates on top legal stories. Check us out on substack harry littman.substack.com where we're posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. And Talking Fez has joined forces with the contrarian. I'm a founding contributor to this new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust just now, linked up with an ambitious and vital project designed for this pivotal moment in our nation's legal and political discourse. Find out more@contrarian.substack.com thanks for tuning in and don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Lou Cregan and Katie Upshaw, associate producer Becca Haveian, sound Engineering by Matt McArdle, Rosie, Don Griffin, David Lieberman, Hamsum Hadrenathan, Emma Maynard and Hallie Necker are our contributing writers and production assistants by Akshaj Turbailu. Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Doledo llc. I'm Harry Littman. Talk to you later. Foreign.
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A
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- [33:51]
B
Laugh more, stress less and share your own Furry Star. Download TikTok now.