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- [00:00]
Mark Elias
Foreign.
- [00:12]
Tim Miller
Hello and welcome to the Bulwark Podcast. I'm your host, Tim Miller, coming at you from my parents basement. Again, so sorry for the YouTube viewers about whatever you want to call this background and all the glare. I'm doing my best. I also learned a dinner last night from my cousin that he hasn't listened to one second of this podcast or any Politics podcast since November 7th. And I gotta tell you, he seems pretty relaxed. And so I appreciate all of you for sticking around with me and I appreciate our guest today welcoming, I think for the first time to the Borg podcast partner at Elias Law Group and founder of Democracy Docket, a pro democracy news outlet. He specializes in voting rights and redistricting. It's Mark Elias. How you doing, man?
- [00:54]
Mark Elias
Good, how are you?
- [00:55]
Tim Miller
This is first, right? Or were you on Charlie back in the olden days?
- [00:58]
Mark Elias
No, this is the first. And a lot of pressure on me to like make this work. So you'll have me back.
- [01:04]
Tim Miller
Okay. I think it'll be good. I wanted to start with redistricting, but then just before you popped on, I was perusing the X platform and saw this from Glenn Beck. I don't know if you've seen this. Glenn Beck says that Mark Elias has stopped posting on X. John Kerry privated his account and Peter Struck deleted his account. Is the deep state panicking? So I just. Glenn, Glenn Beck is worried that you're panicking. So I guess my question for you is, are you the deep state and are you panicking?
- [01:37]
Mark Elias
Okay, first of all, do I look panicked? So I got off of X. You know, I, I, I don't know about you. I could live happily without social media. Like, I am not someone who is like, my God, there is another platform. Please God, let me figure out a way to scroll some more on Twitter way back in the day because there were all these bloggers. Remember the bloggers?
- [02:03]
Tim Miller
Of course.
- [02:04]
Mark Elias
When I found out that Twitter was called the Telfa microblog and was like 180 characters, I was like, okay, this is like some kind of joke. So I'm like, okay, I'm gonna do that. Like while you guys blog, I'm gonna microblog. And it was like really a useful way to communicate. And then the site went to. And so like I did my little mandatory purgatory on post, if you remember them. The little tour on Mastodon. That was like a couple of weeks. Now I'm on Blue sky, kind of kind of, you know, doing, doing what I do there. But I got off of Twitter because, like, at the End of the year, just because, like, it was so damn, like, toxic. Like, I could post something like, I'm going to be on with Tim Miller. And it's like, oh, a gay and a kike. You know, I mean, like, it was like, it was just. It was.
- [02:49]
Tim Miller
You're grooming.
- [02:50]
Mark Elias
Yeah, right. It was like one. It was like one anti Semitic slur at me after another. And like, you know, and so, so I'm sorry, Glenn, but this is actually not news. This happened some time ago.
- [03:01]
Tim Miller
You are kind of a target for these guys. I don't know. I was at one point. There's something. I don't know what it is. Maybe they feel like since Trump got elected again, like, the fight with the Never Trumpers is not exciting to them anymore. It's not that I don't have trolls. I do. But I feel like the venom that is targeted for you is. Is more intense these days. Do you need a security guard? Like, what's the latest? What kind of. What kind of heat are you taking?
- [03:26]
Mark Elias
I mean, look, it's not fun. I mean, you know, there is. There's a fair amount of hate. Some of it is because the president himself has. Has mentioned me on a number of occasions. And a lot of it's also, Tim, because, like, if you think about the core of Donald Trump, you know, one of the things that always drives me crazy is the legacy mainstream media tries to figure out. Like, what is his core belief? Like, there is no core belief to Donald Trump.
- [03:50]
Tim Miller
Like, well, him, he's the megalomanian. His core belief is that he is the most important thing in the world. Yeah, that's the core belief.
- [03:57]
Mark Elias
And, you know, I think the closest thing there is to a core belief is election denialism.
- [04:02]
Tim Miller
Okay.
- [04:02]
Mark Elias
And, like, his desire to, you know, deny that he lost the 2020 election. And of course, I played a large role in that.
- [04:11]
Tim Miller
That's related to the megalomania. If he is the. If he is the greatest and the chosen one, then he could not ever lose. Right. Yeah, so. Right.
- [04:18]
Mark Elias
And so I kind of fit into that. And then obviously, I also was Hillary Clinton's general counsel in 2016, so that gave me, I guess, deep state credentials.
- [04:28]
Tim Miller
In the megamind, the targeting of the law firms. I'm curious. And he's going after you or mentioned you and stuff, but it seems like maybe, I guess, you tell me, you might be a little more insulated for that. And it feels like the big law firms that have folded or felt pressure or the ones that have really stood up in the face of actual, actual threat. They need to cut deals with the government. Right. Like they need to represent folks. But I don't. But maybe that's not accurate. I don't know. Have you felt potential consequences to that or risks?
- [04:56]
Mark Elias
No. So, I mean, look, the good thing about my law practice, about my law firm is I left Perkins Coey, which, you know, is one of the law firms that got targeted because I had actually been there. They got targeted because I was a partner there. I have not been there since 2021.
- [05:13]
Tim Miller
Sorry, guys.
- [05:14]
Mark Elias
Yeah, I was going to say I feel kind of bad about, I do genuinely feel bad about the fact that, you know, I left in 2021. It was an amicable departure. And then in 2025, they're getting, you know, they're getting going through all this hell because I had been there. But when I, when we started this firm, you know, we have 60 lawyers, and when we started the firm, we basically said we're not going to take on corporate clients. So we only represent Democratic campaigns and party committees and, and organizations and we do voting rights on a nonpartis and then we represent a lot of progressive and liberal and sort of center and center left organizations. So as a result, we really don't have, you know, like, we don't, like, we don't do work for the government, we don't do work for government contractors. So there really hasn't been a way from a business standpoint for them to target, target us. You know, when, when Donald Trump gives me a shout out of hate, it increases the security costs, but it also tends to increase demand for legal services. So it's kind of like a, it's kind of like a yin and a yang.
- [06:14]
Tim Miller
What have you thought about how the other law firms have kind of reacted?
- [06:17]
Mark Elias
Oh, it's an absolute disgrace. It's an absolute disgrace. You know, like George Conway and I are in a race to see who can be the most aggressively anti big law around this. So I mean, I think that what Paul Weiss did is an absolute disgrace. They have ruined one of the great brands in the legal profession. They have, they have compromised their dignity. And I think the other law firms that followed, you know, some of these law firms were never targeted at all. They literally just were like, showing up in the oval office and being like, may we please shovel free legal services to you, your honor, Your highness. It's just an absolute fucking disgrace. And the fact is that I think the legal profession has not come down hard enough on these law firms. I think the bar association, a lot of People praise the American Bar association because it's sued. My criticism, which I wrote about in Democracy Docket, was that it's great that the American Bar association is standing up for lawyers being targeted by Donald Trump, but the law firms that collaborated, they're not victims. Like, like, like, don't, don't portray them as victims. Like, they, they've gone along with this. And, and you know, anyone who says these law firms faced an existential threat. Yeah, the existential threat is that they, rather than making $10 million a year on average per partner, they would make $8 million per year on average per partner. My, my offer to big law is, how about, you know, they're like, well, we have a business and like, our, our employees count on this. How about at one of these big law firms that capitulated who made more than $50 million in the last five years, how about they leave, okay? Like, they don't need the money. Like, stop telling me, like, this is about, like, people's livelihoods. How about those people leave and do the right thing?
- [07:59]
Tim Miller
It's so funny's not the right word, but I'm laughing about it anyway, listening to you give this soliloquy, because it sounds exactly like what I was saying in 2016 and 17 about the Republican political consulting class. And I maybe lost a couple friends over being opposed to. But the real relationships that were fissured and broke and never really fixed were of people who were working at big Republican TV ad firms who were unhappy with my comments about just the moral cowardice that they were showing and the fact that actually they would do fine doing corporate PR and public affairs PR and even Republican Senate campaign pr, which wasn't my cup of tea back then, but fine, you know, they didn't have to do Donald Trump's super pac and, like, they didn't need the money that badly. I've seen their beach houses, right? And I lost some folks over that. I'm wondering, the Democratic lawyers at these firms, I mean, have you. What, what have those conversations been like with you? Have you gotten some angry phone calls? Or, or, or do they have shame? And they know, they know that they're being bad, and so they don't want to talk to you about it.
- [09:11]
Mark Elias
Look, it's both. I mean, you know, first of all, you and George Conway and Sarah, you know, you guys are the sort of the heroes of all this, right? Because you up a lot. Like, in some ways, like, I always say this, like, I, like, what have I given up? Like, you know, I mean, like, I was a Democrat before. Like, you guys have given up a lot in. In having those conversations.
- [09:29]
Tim Miller
I'm doing all right. But I appreciate that.
- [09:31]
Mark Elias
Yeah, know, But. But, you know, like, because of those conversations. Yeah. Like, if you went back in time to when you were working for Jeb Bush, I was friends with all of the Republican lawyers. Like, I remember the Jeb primary. Okay. Like, the Jeb. I don't mean the, like, electoral primary. I mean, like, the consultant primary. Like, oh, yeah, all of the big Repub. Republican law firms wanted to represent Jeb Bush. And, you know, like, you know, there was, as there always is. There's, like, a pecking order. And so if you went back in time and looked at that point, I was viewed as a very bipartisan lawyer. I was viewed as someone who worked closely on campaign finance matters with people like Michael Toner, people like Don McGahn.
- [10:13]
Tim Miller
Yeah. Ben Ginsburg. Charlie Spees.
- [10:16]
Mark Elias
Charlie Spees, yeah, absolutely. Like, these are all people who I was. Who I had.
- [10:21]
Tim Miller
I apologize for lumping Ben Ginsburg in with those other names. He's acted with integrity. So anyway.
- [10:26]
Mark Elias
Yes, yes. And my relationships with the Republicans obviously frayed. So then the big law stuff comes up, and I think a lot of them were surprised that I came as hard out of the box about this on our own side. You know, I mean, like, it's easy. You know, everyone understands where you're punching on the other side. And so I've had some difficult conversations, and I am sort of unmoved by it. I mean, the fact is, this is the thing that, Tim, maybe you have insight into, because, like, you're more in touch with maybe your feelings, but, like. And other people's feelings. Like, I actually believe all the stuff that I've been saying and you've been saying and other people have been saying, like, Donald Trump is an existential threat to democracy. He is an authoritarian. He wants to be a dictator. And so if you believe all those things, like, if Marco Rubio believed the stuff he said, if Ted Cruz believed the stuff he said, if Lindsey Graham believed the stuff he said when they all ran against him, like, if Democrats on my side believe all the things about what Donald Trump is doing to destroy civil society and large institutions, then how do you not speak up against it?
- [11:35]
Tim Miller
No, I'm with you on that. I believe everything, too. It's funny, I get sometimes from the rationalizers. This is why I'm not that great of a dinner guest for rationalizers these days, because they do the things where it's like, well, if you got a call from the Secretary of Defense and they wanted your advice on something, you would help. And I was like, no, if you were at one of these law firms, you would have done it. I was like, no, I'm sorry. I mean, I'm not a perfect person. I'm a very flawed person. I've said many times in the past, like, I don't know, had Ted Cruz won instead of Trump, I actually can't say clearly what I would have done. I don't know. My husband probably would have divorced me if I'd helped Ted Cruz. So I probably would have been okay because of that. But I certainly have gone along with people that I didn't feel like were existential threats, but that had policies, policy differences with me. But, like, the Trump stuff is not a close run call for me. And that. That's why it's kind of astonishing to me even. And we should say there have been some prominent law firms who stood up to him and some prominent Democrats in those law firms who have. But, like, the number of those who haven't is, like, pretty. It's pretty wild to me. Really?
- [12:34]
Mark Elias
Yeah. Because you have to count not just the people at the capitulating law firms. Like, it's easy to count those people up because we know what firm they are. But my question is, where are the law firms that have not been targeted?
- [12:45]
Unknown
Targeted?
- [12:45]
Mark Elias
Like, if you are, if you are at a law firm, let's say you're at a law firm and it's not been targeted one way or the other. It is neither capitulated nor fought. Why aren't you standing up in public? Why aren't you speaking out? Like, why are you keeping your head down rather than stepping forward and criticizing what these large law firms are doing? Why aren't you forcing your law firm to take a public stand in favor of democracy? Like, the cowardice is not just the people who capitulate, but it is the vast, silent number of people, people who, who say nothing. And I'm going to come back to my offer. Like, how about just the people who made more than $50 million in big law over the last five years. How about they speak up, right? We will let off all the, all the support staff, all the secretaries, receptionists will let off, even the. We'll let off the associates who are well compensated, but not at that level. But, like, where is the courage among the people who don't need the money?
- [13:39]
Tim Miller
All right. Hey, everybody. Been talking to you about, you know, how important genes are to my self identity and how that identity has been evolving over the years from pair of gay jeans as a closeted Republican staffer in Iowa, to now having to recognize the fact that gay jeans have a totally different cut than they used to and the kids are wearing them different. I just saw a post the other day. Apparently skinny jeans are coming back though. So everything's cyclical and so that makes me feel like maybe I should just stick with the jeans I have. No matter whether you think about this as deeply as I do or whether you just need a comfortable pair of jeans to wear, our ad sponsor is perfect for you. It's the Perfect Jean. With a huge range of sizes and fits to choose from, you're bound to find a pair that really feel custom made like I did, no tailor required. They're also super stylish, so you can wear them to the crawfish boil or to a fancy dinner, you know, and fit in. Fitting in is what's important. They fit you and you fit in. Perfect Jean also has organic cotton tees that I love. They're super soft and the fit makes, well, it makes other people's arms look really great. My ladies weightlifting class isn't enough to make me have great looking arms. It makes my arms look pretty good, but more importantly, it feels great. And the tee is perfectly paired with their comfort shorts on top of that. The Perfect Jean always has free shipping exchanges and returns. You can have peace of mind knowing that your order is completely risk free. It's finally time to stop with those uncomfortable jeans. By going to ThePerfectGenec, our listeners get 15% off your first order, plus free shipping, free returns and free exchanges. When you use code Bulwark15 at checkout, that's 15% off for new customers. At ThePerfectGene NYC with promo code Bulwark15. After your purchase, they'll ask you where you heard about them. Please support our show and tell them we sent you. Fuck your khakis and get the perfect gene. We got waylaid there. I was planning on doing the first 20 minutes on redistricting. So everybody buckle up. We're about to get really nerdy. We've got some other fun stuff at the end. We need to do the redistricting talk and I think that's among the most important things that are happening right now. It's a big list of creeping authoritarian threats, but the redistricting thing could have some real implications depending on how things turn out next fall. So just at the top level, I guess, what is your take on kind of what we're seeing in Texas and across the country. And then I want to kind of dig into a couple of the specific situations.
- [15:59]
Mark Elias
So ever since Tom DeLay and Republicans in the House in the mid-1990s, the courts have said that it is constitutional if a state wants to do mid cycle redistricting. That doesn't mean states can automatically do it. There may be state laws against it, there may be state constitutional, but. But under the federal constitution, a state has to draw their new maps once a decade after the census results come out, after reapportionment, but they are permitted to do it more often. So a lot of people are saying in Texas, what's happening is a mid cycle rendition. But that actually sells it short because if you look at when it's happened before, Tim, it has happened where there has been a change of control in state government. So not to defend Tom delay, because I would never defend Tom delay, but what he was doing was saying, essentially, look, the map that was drawn at the beginning of the 1990s was drawn by Democrats. Republicans are now in control. We want to draw our own map. Okay. The thing about Texas is they gerrymandered in 2021. Like the Republicans. The map that they now think is insufficiently gerrymandered is a gerrymander.
- [17:06]
Tim Miller
Yeah.
- [17:06]
Mark Elias
And so what they are doing is they are re gerrymandering a gerrymander. And that is unprecedented in American politics. And they are doing it because Donald Trump told them to do it. And, you know, like, what is the limiting principle there? You know, we already know that Missouri is saying they may do it. You know, Ron DeSantis doesn't want to feel left out, you know, so maybe he will. Ohio, like, who knows where this ends? So I, you know, my view is that Democrats have been on record as opposing partisan gerrymandering. It was in the Freedom to Vote act and the for the People act, both bills that every Democrat in the House and Senate voted for would have banned partisan gerrymandering nationwide. But those bills didn't pass. They didn't pass because Republicans in Congress opposed them. And so, you know, my view is that Democrats need to not just match what they're doing in Texas, but actually exceed what they're doing in Texas in order to put a disincentive in place that, hey, Mike Lawler, that's a really great congressional district you have there in Rockland County. How would you feel if that district added 20% more democratic performance?
- [18:16]
Tim Miller
So I want to get into the Democrats options there, but just really quick, in Texas, and they're looking at trying to pick up five seats. They've released a map, a picture of a map. Looks like Greg Kazar. I've had on the show, Al Green famously was yelling at Trump. Julie Johnson, Lizzie Fletcher, who's a great congresswoman, are four of the ones who are looking at. At first, because of your point about how the 2021 map was already gerrymandered, I was like, maybe skeptical. I said, well, is there a way that this could potentially. Is there a backlash potential? You redraw some of these districts and maybe add a couple, put a couple districts in play that weren't in before. But now that we've seen this Texas map, that seems to be unlikely. Right. It seems like if they are successful in this, then they will be able to squeeze out four or five seats. Is that how you assess it?
- [19:06]
Mark Elias
It is. I mean, you never look, you know as well as I do, you never know how the electorate bobs and weaves and weird stuff happens, trends, waves, whatever. But yes, I think you're right. I think that there has been an underestimation in parts of the media and parts of the political class in just how powerful computers are right now to gerrymander maps. And I think that's what you see in Texas.
- [19:36]
Tim Miller
That still gives them a pretty small gap. If we have one of these traditional midterms where there's a backlash against the incumbent party. The Republican advantage in the House is already extremely narrow. Adding five still makes this very doable for the Democrats. If you look at their options for pushing back, as you mentioned, that Republicans might do this also in some other states, Ohio, Missouri. Democratic options aren't actually that great. And one thing I wanted to ask you about, I saw you on one of your other media hits recently that you said that cumulatively the Democrats should try to shoot for 15 to 20 seats. I'm not an expert on redistricting, but I've been reading up on it, and I just don't see where those seats come from. In California, potentially six, but that has some challenges. I want you to talk about the California situation. Maryland, Oregon, Illinois are the easiest ones to redistrict because there are no state laws against it. But there are only five Republicans in those states. So, you know, it's hard to get what, more than three out of those states. Where are all these seats coming from? And. And is it even legally possible to do it before 26?
- [20:40]
Mark Elias
Okay. So you have to add New York to that list, which is almost as big as California in terms of potential seats that are at play. I also put Virginia on that list. A little bit of leaning into what I think the outcome of the Virginia elections will be. But, you know, there are a couple of seats that could be gained in Virginia. Look, I think that the. The question is not whether there are challenges to doing this. There will be, like, there will be challenges to do it. Look, there are challenges to the Republicans doing in Texas, right. They have to have quorum. They have to survive what will be inevitable court fights after they do it. And so I'm not saying that, you know, in California, obviously, you have the rendition. In New York, there has been litigation that my law firm has been involved in, and there's been one redraw already.
- [21:29]
Tim Miller
Because isn't the role in New York something like there has to be two straight sessions or something where they vote for it?
- [21:34]
Mark Elias
I think there are a variety of different ways that are being considered. I'm not going to go into all of the details. My point is that we cannot, and I'll say this as a Democrat, we cannot start, as I think too oftentimes we do, by listing the myriad reasons why. Why we can't do something, why the norms, why the. The rules, why the, you know, prevent us from doing something. I think we need to start with the proposition that there is something to be done and then work towards that goal, understanding that we may not achieve 20 seats, we may not achieve 30 seats, we may not achieve 15 seats. But we will send an unmistakable message to Republicans like that if they do this thing, we are going to do it, too. And they may win more than we do, we may win more than they do, do. You never know. Politics is a funny thing. Courts are funny things. Like the ball can bounce a lot of different ways, but if we're not in that game, then it is simply standing BY While Ron DeSantis says, well, there's no penalty to doing this, so we'll do it, too. While the governor of Missouri says, there's no penalty to do it, so we'll do it, too. And I think that. And you know the Republican Conference of the House better than I do. Okay. They, like, never consult me. And I assume at some point they consulted you, I think.
- [22:52]
Tim Miller
Been a minute, but yeah, sure, Yeah.
- [22:54]
Mark Elias
I think that if there is a way to halt Republicans from doing what they're doing, it is by having incumbent members put pressure on Mike Johnson, and that is the governor, that is the potential governor on this.
- [23:07]
Tim Miller
I mean, shame certainly isn't going to work.
- [23:09]
Mark Elias
No.
- [23:09]
Tim Miller
So I think we can mark that off. So I agree with you. And when you say that, just for listeners trying to understand what you mean, incumbent pressure means that, okay, if there's a realistic plan for the Democrats to go after, say, these 15 Republican districts, then in theory, those 15 Republicans, Republicans will be the ones who are in private, you know, because they don't want Donald Trump to take them down. But in private, going to Mike Johnson, but maybe even going to the governors of some of these red states and saying, like, come on, let's dial this back, frankly, I think that's a bank shot. But it is. It's certainly more likely than wagging your finger at them. I know we've kind of seen the high road strategy and how that plays out.
- [23:52]
Mark Elias
Yeah. And I'll give you one example from your Homestead state. You may know more than I do about this and tell me that this is wrong, but, you know, my law firm, we sued two states in the Deep south over their violation of the Voting Rights act in drawing districts and discriminating against black voters, Alabama and Louisiana. We won both cases. Alabama then basically crossed its arms and said, we're not going to comply. Okay. We're not going to. We're not going to draw a map that has two black opportunity districts. We're going to, we're going to stick with. Even though court has told us we have to, we're going to refuse to do so. Okay, Louisiana complied. And why did Louisiana comply and why did Alabama not comply? I suspect, again, Republicans don't consult me. I suspect one of the reasons why Louisiana complied is because Mike Johnson is from Louisiana and they were going to lose one of their Republican seats and he preferred. And the Republican governor of, of Louisiana preferred that they picked what that configuration.
- [24:53]
Tim Miller
Looks rather than they hated Garrett Graves. A lot of this stuff is high school cafeteria, honestly. And they were like, all right, if we got to get rid of one person, we've got one guy that we're pissed off at because he was too close to Kevin McCarthy. And he's been annoying. And it's funny, Garrett Graves is in the sour spot where it's not like I didn't look at him and say, boy, what a bold truth teller fighting for democracy. I love Garrett Graves, but he was just annoying enough to leadership for them to be happy to throw him overboard while not being as courageous as Kinzinger or whatever, somebody that would get credit. So anyway, so that is what you.
- [25:27]
Mark Elias
Call the bank shot. Right. Like these things, this is the thing that I think the public sometimes doesn't Appreciate like you have to make your own luck, but you also have to create a political environment that allows the dynamic to shift. Right now, the political environment around registering is really simple. Donald Trump orders it up, they do it. I think the Democrats need to pursue a strategy that makes that a more complicated environment for Republicans, more competitive Democratic effort.
- [25:52]
Tim Miller
What kind of feedback are you getting on this? And obviously Gavin Newsom has been very vocal that he thinks that California should play hardball here. I saw a quote from Pritzker that made him seem a little bit more lukewarm, to be honest. I haven't been paying that close attention to the New York conversation. We have governor's races in New Jersey and Virginia, so that's tbd. What kind of feedback are you getting from those quarters?
- [26:15]
Mark Elias
Look, I think that most of the governors have been really thoughtful about this. I think that JB Pritzker said all options are on the table. I think you've seen what Gavin Newsom said. I think Kathy Hochul said that it's something that she's open to looking at. I'm not suggesting that they need to commit on day one in public. I just think it's something to explore. Also. I think, look, I think House leadership, I think Hakeem Jeffries and his team and the DCCC and them, I think they are taking this super seriously as well. I think that there is a recognition across the board that that what Republicans in the House here are doing is so beyond the pale that it requires a response. Understanding that at the end of the day, the goal would be de escalation. If we could get federal legislation, for example, that would be great. But that you cannot just allow Republicans to do this without any consequences.
- [27:04]
Tim Miller
Okay, two more nerd questions on redistricting then. I've got a couple other things. Wisconsin and Utah. Wisconsin is one of these cases where you talk about the unilateral disarmament. It's not not party registration, but essentially the court went from a conservative majority to a liberal majority just to speak plainly about it recently. And so there's the Democrats in Wisconsin. There's a Democratic governor want a redistricting. The map in Wisconsin is really unfair towards Republicans. And just not doing a gerrymandered map, just doing a fair map would probably bring two seats to the Democrats in Wisconsin. But it seems like the liberal Supreme Court doesn't want to do it wants to wait till the end of the decade. And then in Utah you have a case where it seems like there is some judicial review. Utah is an absurd gerrymanderman it's like Salt Lake City doesn't have a district essentially because of the pizza way that they've carved up the state. Looking at those two cases, I'm sure you're involved. Like what is your sense of what's happening in those states?
- [27:57]
Mark Elias
Yeah. So we filed the case in the Wisconsin Supreme Court that the court did not take up, as you point out. We have also filed more recently now a case in Dane county county court. So rather than going straight to the Supreme Court, which we done last time, going up through the lower courts. And you're exactly right. I mean the map in Wisconsin is a partisan gerrymander. It was built on the last partisan gerrymander and it's not fair for the people of Wisconsin and we're going to litigate that case aggressively. The Utah case is really interesting because on its face you would assume that we have no chance in Utah. You would assume that Utah Supreme Court, Utah courts. And again, Republican operatives know more about this than Democrats, but there's actually Utah.
- [28:44]
Tim Miller
Republicans are a little bit of a different, like a slightly different breed than the rest of them.
- [28:47]
Mark Elias
Yeah, they really are. Are.
- [28:49]
Tim Miller
It's the Mormons. I've got some issues with the Mormons, but there's something in the water out there where there's just a little bit more concern about following the rules. Yeah.
- [28:59]
Mark Elias
And I think that there has been some sense that the courts there actually are taking this quite seriously and that there is also a concern about not just the politics of dividing up Salt Lake City, but the impact of doing so. So and so, you know, I would not be, I. If I had to pick a surprise for people this cycle, it would be a favorable ruling in Utah from the state courts that requires a redraw.
- [29:27]
Tim Miller
You wrote recently for democracy docket a pretty extensive article about what the DOJ is doing behind the scenes that is concerning about, you know, the midterms federal involvement into kind of state election activities. Why don't you just tell us what was in that article and then I've got some other things I want to talk you to about.
- [29:43]
Mark Elias
One of the things that I worry a lot about is that at the same time that we are all dealing with the latest political crisis of the day and the latest outrages from the White House and the, the grave threats that he poses to democracy, there is this right wing voter suppression and election subversion war machine that just keeps sort of grinding away like the, like one of the points I make is that the RNC is actually involved or the Republican Party is involved in 75 voting cases. That's like a lot to be involved in. My law firm is involved in 50. There are 143 overall. But what's happened in the last six months is that the Department of Justice has been transformed into an arm of that effort. And one of the ways it's manifesting itself is that the Department of Justice is reaching out to state after state after state to get copies and access to their full voter files, their full voter rolls. And this is quite alarming for a couple of reasons. The first is there's no reason for the Department of Justice to have these voter rolls. The Department of Justice doesn't role in the administration of elections in our country. The states administer our elections subject only to congressional enactment. There's no congressional enactment that requires or that would even give a reason for DOJ to have this. The second is the, the reach out that is coming is actually coming from federal prosecutors. Right. So it's coming from people whose, like, jobs are usually to arrest people for, like, distributing fentanyl. They seem to not be doing that, you know, prosecuting fentanyl, drug dealers. And so. So, you know, I, I think that, that people need to be paying attention to this because it is, at a minimum going to be used, I believe, to have the Department of Justice suggest that there was electoral malfeasance or irregularities. I think it potentially could be used more offensively than that in a very close post election. I mean, after all, remember Jeff Clark? Remember him?
- [31:38]
Tim Miller
Oh, of course, yeah.
- [31:40]
Mark Elias
You know, this is essentially, he wanted DOJ to intervene the federal government into the vote counting and the certific Georgia, and he was stopped by, I think it was the acting Attorney General Rosen, and like basically the White House Counsel's office. As far as I could tell, Clark's.
- [31:57]
Tim Miller
An interesting character, an occasional Borg podcast listener, because he trolls sometimes. So maybe. I'm sure Jeff is listening. He might be listening right now. Do you have something you want to talk to him about? He doesn't really like it when I call him treasonous, but he seems to be less upset about it now that Trump won again. Unfortunately, one of the smallest downsides of Trump's win is these horrible people, you know, feeling like they're the victors and, you know, no longer lashing out in shame. And that's. That sucks. You know, you want them to cry, and unfortunately they're not. Obviously they're, they're more pressing issues than that. But Jeff Clark's happiness is not at the top of my list.
- [32:32]
Mark Elias
I do have to say if we want to keep Pam Bondi and the Department of Justice and Cash Patel and the FBI out of elections, I've suggested that every local election office office take a box and label it Epstein files and put it in their office because that's like kryptonite that'll keep them out. Like they will be like, oh no, no, we can't go there. We don't want to talk about that.
- [32:50]
Tim Miller
Okay, no bad ideas in a brainstorm. So the context of the broader context of what you're saying about with potential DOJ interference and elections. I had Chris Murphy on, I guess maybe last week or two weeks ago and I was kind of surprised as an open ended question about what worries him the most right now. And his answer was the midterms. Right. Like he's worrying about kind of a, you know, a series of different things related to redistricting, related to what you're talking about at DOJ involvement, related to potentially post election non certification of certain states. You know, he listed off a couple other things. You know, at some level I have higher things on my worry list. But this is your business. I just wonder kind of if you could give us like on a scale of 1 to 10, like what is your, what are the things that worry you most about the midterms and how high is your alert at this point?
- [33:40]
Mark Elias
First of all, we are going to have elections. So let me start with the listener comments who are like, what is Tim Miller talking about?
- [33:46]
Tim Miller
So it's like 0 to 10, 10 is democracy is over. Donald Trump has now become a fascist dictator. Zero is like they're just going to let whatever happens happens. We're going to have a fair game. Where are we on that trajectory?
- [34:01]
Mark Elias
I would say we are someplace in the like 5 to 6 to 7 range. So it's still to the good. It's still to the good, but it's not where it needs to be. And I start by saying we're not at zero because blue sky is constantly all over me. No matter what I write about elections, they're like you, why are you acting like we're going to have elections? Okay, so here's the deal. Dictators love elections. Authoritarians love elections. Like Vladimir Putin loves himself a good election. So Donald Trump is going to want elections. And by the way, he can't stop them because they're run by the state, not by him. The question is how fair and free they are, which is really what your question is. And I think that you should break elections into three buckets there's who gets to vote, there is who votes and then there is how the votes are counted and certified on the 1st, on voter registration, you're seeing a lot of activity by Republicans to try to limit voter registration. You know, the proof of citizenship efforts are a part of that. Maybe the collection of the voter rolls are part of that. But honestly it's going to be very hard for Republicans to a true constitutional crisis around voter registration. So it's worth paying attention to. There's litigation around it, but that isn't where my worry is.
- [35:10]
Tim Miller
Can I just add one quick point on this so we can just put in that. Because also I think that that is a little bit less acute of a threat. Again, just being practical here. Everybody should have a right to vote. Nobody should have their votes suppressed, obviously. But as compared to like 2008 say versus now, the, the people who are like the most vulnerable to this are less, way less overwhelmingly Democrat than they were then. Right. Do you not worry that there's a Republican backfire? Frankly, they might be voter suppressing their own voters at some level?
- [35:43]
Mark Elias
I don't think so. I don't wish that to be the case, but I think that there is a little wish casting. When I hear people say that the most vulnerable population to voter suppression is actually, actually based on age. It's not based on any. It's. That is like the, the people who are the easiest to suppress are people who have never voted before. So they are first time registrants and those are overwhelmingly young voters. And you know, I'll give you an example. In 2020 in Florida, if you voted by mail and you had a 5.4% rate of rejection of mail in ballots, if you were 18 to 21, if you were over 65, it was.06%. So it's the difference between one in every 20 ballots being not counted versus one in every. And that disparity based on age is actually a larger disparity. There was a racial disparity. White voters had their ballots counted more than Hispanic or black voters. In other words, the rate of rejection was higher for black and Hispanic ballots, but not to the same degree as there was based on age. And that is data. When you look across the board at rejected ballots, rejected mail in ballots, people who have trouble registering have their registration challenge. The age factor is a pretty significant one. So I think that the same technology that goes into gerrymandering I think is used by Republicans to understand who is impacted by various voting law changes. But to answer your original question, so that's registration. Then you have the voting process where, you know, 2021 was a big year for like voter suppression laws by Republican states. We still see some of it and it's still important to be mindful of. But what worries me about the Department of Justice, what worries me about Donald Trump and the MAGA movement is we started all collectively, you and I and others started in 2021 talking about election deniers being in positions of election certification, right?
- [37:38]
Tim Miller
Yes.
- [37:39]
Mark Elias
And like, it was a problem in 2022, it became a bigger problem. Remember Georgia and the State Board of Election and the shout out from the stage. Yeah, like, we didn't see it in 2024 because Donald Trump won, but the election denier movement that is sort of like embedded itself into this process. Really big problem and a really hard one to fight because it's so localized. And then if you have the Department of Justice on top of that giving a patina of COVID or even taking the side of those election deniers, it will be a real challenge for everyone.
- [38:11]
Tim Miller
So to you, the highest threat is really in the post election fights. It's the certification, are we ceding this member of Congress and this ties to the redistricting thing. Right. If they can squeeze out 8 more seats or 10 more seats out of Texas, Florida, Ohio, Missouri, Democrats fail to be able to do that on their side. Democrats pick up 15, right. Like, and then, you know, Democrats have a one seat majority. Right. Like, if in that sort of situation, I think that's a real, the biggest risk. Two other topics. Emil Bove, a court confirmation. I just kind of want to hear you cook on the idea that the Republicans have confirmed this guy to the third Circuit.
- [38:51]
Mark Elias
What an absolute fucking outrage. I mean, like, let's just like look at this for a moment. Donald Trump takes his criminal defense lawyer, puts him at the Department of Justice to be like the hatchet man. Like what? Three different whistleblowers come forward and are like, this guy has said things like, you know, the court will have to go fuck itself. Like, I mean, and. And the Republicans just line up to vote, vote for him. And shame on all of the people in legacy media who, you know, just two weeks ago were doing the like, look at Thom Tillis. Principled, principled man. You know, like, ridiculous. It's all just a bunch of. I mean, the fact is this isn't even like the ideological Federalist Society era where like, they were like, oh, he like, you know, wants some cockamamie legal doctrine. This is just the pure politics of doctrine. Donald Trump like, this is just literally Donald Trump.
- [39:45]
Tim Miller
Power politics.
- [39:46]
Mark Elias
Power politics.
- [39:47]
Tim Miller
Power politics. Corruption. Yeah, that's all it is. It's not ideology.
- [39:50]
Mark Elias
It's not ideology. It's not even. But the thing is though, Tim, is I'm offended that it's not even dressed up in ideology like that. Even. Like the Republicans don't even feel the need to claim. He's like an originalist.
- [40:02]
Tim Miller
Yeah, right. No, he's just like, we are right always. They're wrong always. Simple. I'm going to be a judge now on the circumstances court.
- [40:09]
Mark Elias
Correct.
- [40:09]
Tim Miller
Ludicrous.
- [40:10]
Mark Elias
Yeah.
- [40:10]
Tim Miller
Totally insane.
- [40:11]
Mark Elias
And look, this is where I don't want, I don't want your audience tuning out, but this is where, you know, I think, I think that Joe Biden and Chuck Schumer deserve a lot of credit. They, they put a lot of judges in place, they filled a lot of slots, and it's going to make it harder for Donald Trump to do more of this.
- [40:25]
Tim Miller
No, my audience is thrilled about that. I usually get, I should get complaints about my, my Joe Biden counter view, anyway.
- [40:32]
Mark Elias
Counter view on judges?
- [40:34]
Tim Miller
No, no, no. Well, I don't have a counter view on judges, but I think that there is a little bit of a cope in discussing the Joe Biden legacy where it's like, well, he didn't win the election, but he got all these things done legislatively and Trump is going to just totally unravel all of them. The poor choices on his decision to run and the poor decisions politically have totally offset all of the accomplishments, frankly, except for judges. Really, in 10 years, if you look back at that, the Biden legacy, it's going to be hard to come up with something besides judges that stood the test of time, unfortunately. So sorry to bring people down. All right. I lied when I said I had two more. Now I have two more. Maxwell and Todd Blanche, any deep thoughts on the deputy Attorney General and the deal that's been cut there?
- [41:24]
Mark Elias
People need to first take a step back and realize how absolutely bizarre. I mean, it's inappropriate, but how absolutely bizarre it is that the deputy Attorney general is conducting an interview with a federal prison prisoner convicted of sex crimes. Like, normally the deputy Attorney general is like, giving keynote addresses to, like, various international audiences or heads of state or like, convening task force. Like, like he's doing the work that you would expect a line prosecutor to do. And so I think we all need to ask ourselves, why isn't a line prosecutor doing that work? Why isn't this, if there needs to be an interview of Maxwell Why isn't it being done by an Assistant U.S. attorney in the prosecuting office, which would be New York York, the New York Southern District of New York? And why isn't it that prosecuting attorney and two FBI agents, which is what you would have as a standard, standard package normally. Why is it that it is Todd Blanch himself. Why is it it is Todd Blanche, the deputy Attorney general, who is Donald Trump's personal lawyer? Okay, so that's. That stinks to the high heavens to begin with. The second thing, though, is that he is allowing this. This woman who has been convicted of a crime, is serving. Serving her sentence to dictate terms. I mean, I heard this through the Republicans in the House too. They're like, well, she wants this, she wants that. I'm sorry, she's in the custody of the Bureau of Prisons. Like, what do you mean? What do you mean? She wants. She wants. You know, she's got debates about the wear and the timing. Like, I'm sorry, the Bureau of Prisons can move her to the Alexandria jail or the D.C. jail or, or wherever that is convenient to people who want to interview her. I mean, they are treating her as if she somehow now is sort of on an equal plane. And we know why that is. We know why that is. They are trying to please her, of all people, to try to exculpate the President. The final thing I just want to add, and it's my, you know, I went all of this time without really railing about the legacy media, but, like, literally, people are like, well, you know, we don't have any evidence that Donald Trump this, that. And the third thing, I'm like, the dudes bid been found liable in civil cases. Like, like, he's on tape. Like, what. What do you mean we have no evidence? Like, like, what do you mean there? Like, you know, I listened to. I probably shouldn't call out another podcast, but it's a sort of do it all right. So I was listening to Barry Weiss.
- [43:48]
Tim Miller
Oh, God.
- [43:48]
Mark Elias
And she had on the conservative guy from the New York Times who like, writes his.
- [43:54]
Tim Miller
About that.
- [43:55]
Mark Elias
Yes, thank you. And they were like, well, you know, and, and, and actually, it was a thoughtful discussion. I actually didn't have. I wasn't critical of the entire thing, but at one point they were like, well, you know, if, if this was all true, like, wouldn't there be witnesses coming forward and saying, like, you know, this is true. And I'm like, I'm sorry. Like, I'm. What are you talking about?
- [44:19]
Tim Miller
Literally, Maria Far Farmer tagged Trump in A report to the FBI in 1996 saying that she was abused by Epstein and that she encountered Trump and Epstein brought her to Trump's office. And then I had Stacey Williams on the podcast last week. Stacy Williams said that Epstein brought her to Trump's office and he groped her. So it's like, yeah, no, I'm with you. This is a totally fair complaint about legacy media. They're also scared. They're scared of the lawsuits.
- [44:44]
Mark Elias
Is that what it is?
- [44:45]
Tim Miller
Now? Every time we mention this, we have to have a caveat that. Like that just because he's in there doesn't mean that he did anything wrong. It's like, what? There have been dozens of credible accusations against him of sexual assault and harassment.
- [44:57]
Mark Elias
Like, do you think they're afraid of the lawsuits or do you think they want to suck up to him? See, I don't buy the. They're afraid of the lawsuits. I think it's that they. Look, they didn't put their, you know, Jeff Bezos wasn't sitting on the stage of his inauguration because he was afraid of lawsuits.
- [45:10]
Tim Miller
I think it's different for different people. I think that there are certain people that I watch who I will not call out because I think they're trying to do their best in mainstream media who have a lot of bosses and stuff and they are worried about lawsuits. And then I think that there's another category of people, particularly look at cbs, who's thinking about merging with Barry Press.
- [45:27]
Mark Elias
It's like the AOL Time Warner murder.
- [45:29]
Tim Miller
You know, like, yeah, the Washington Post. We've seen the Washington Post as action. So I think that there are also some, some nefarious actors in this. I do have to fact check you, though, because this is a straight shooter podcast. Mark, you said that you went this long without criticizing the legacy media. That was actually your third critique of legacy media over the course of the podcast. So I just want to. Sure. We're being real honest. All right, last thing, my. The issue I'm most obsessed with, which you wrote about on democracy docket, which is ice. A dozen House Democrats sued the Trump administration on Wednesday alleging that ICE is preventing them from conducting oversight on federal immigration detention facilities. Like what recourse? And obviously, I know you focus on elections, but you have thoughts on what recourse, legal and otherwise folks have as far as oversight sight on this archipelago of detention centers that we're creating.
- [46:18]
Mark Elias
Yeah. There is probably no greater long term crisis for America from this era than this dramatic expansion of ICE and these detention centers. History shows us that when you build detention centers, you fill them. When you dramatically expand the number of agents who are masked, roaming the streets, grabbing people and throwing them into vans, that doesn't decrease. So it is something to be deeply gained, deeply worried about. I think that on the lawsuit specifically, you know, federal law says that members of Congress have a right on an uninterrupted basis to visit and inspect ICE detention facilities. And there are really good reasons why that's the case, Tim. The fact is that you and I don't have any visibility into what's happening in those facilities. You know, you could say that about the Bureau of Prisons, but like, people in prison, they, they can make phone calls, they can. They get visitors. There are people coming in. And so, so there is at least some greater accountability of what is going on there in ICE facilities. It can really be, you know, very, very hard to know what's going on. So Congress is our, are our eyes and ears. And most importantly, there is a federal law that says that no appropriated funds, no appropriate funds can be used to keep these members of Congress from, from conducting these inspections. And that means that the, that the people who are preventing them are breaking federal law. They are breaking the law because they are using their salaries, they are using their time to prevent these members of going in. And it is not just a legal problem, but it is a, it is a deep moral failing of our country. It is a deep moral failing of those ICE officials who know what the law is like. This is not a complicated legal issue. It's not a complicated statute. We cannot only expect that some people will keep their oath. Like, we've kind of come to the place where we're like, okay, Donald Trump didn't put his hand on the Bible. Maybe there was a reason for that. You know, he took the oath of office and he, like, hovered above the Bible. Right. But, like, we don't expect Donald Trump. Trump to keep his oath of office. We have largely given up on the idea that, that Republicans in Congress will keep their oaths of office. But I would implore the, the government workers, the people who are in ice, the people who are in these detention centers, understand what your obligation is as a government employee, what it is as a citizen, and meet that obligation. It's like, you know, it is, it is the reason I'm so hard on the big firm lawyers, because they should be the shining example. But that isn't a permission structure for other people to not do the right thing.
- [48:50]
Tim Miller
Michael is. Amen. I agree with you on all that. Thank you. So much for your work and for your advocacy. I think you're gonna be welcome back. We'll see what the audience has to say about that. Appreciate you coming to the podcast. This is summer podcasting. My dad is trying to get back into his office right now, so it's over. I gotta be out of here. I'll be seeing you soon.
- [49:04]
Mark Elias
All right, great.
- [49:05]
Tim Miller
Thanks. Everybody else will be back here tomorrow. See y' all then.
- [49:08]
Unknown
Peace. You've been digging around when you're messing about back is a name come on in give me that and calling a high command don't think just the name Unlike a bird of praise machine Better watch your back cover your tracks look at your foot through the door Hit the d Know the skull and I surprise here's my.
- [51:24]
Tim Miller
The Bulwark Podcast is produced by Katie Cooper with audio engineering and editing by Jason Brown.