Election Lawyer Marc Elias On The Subterfuge He’s Preparing For
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From WNYC Studios, I'm Brian Lehrer. This is my Daily Politics Podcast. It's Friday, October 25th. Here's a promise. No matter who wins the election, no matter how weird things get during the vote counting and possible court challenge period that lies ahead in the next few weeks, maybe months,

We will be here not just to bring you the latest news, but to help keep you sane. We promise. We'll be here as a hub of information and also as a hub of commiseration, if that's what you need, planning for the future, and as always a place of preservation of our democracy.

So now we'll start to prepare you and prepare myself for what may lie just ahead. We may remember the post-election period in 2020 most for the January 6th insurrection, but what came first was more than 60 lawsuits filed by the Trump team trying to nullify the real election result in court.

So we have a very relevant guest who is already in the thick of election season legal battles, but who has agreed to give us some time today for an interview. It's Mark Elias, chair of the Elias Law Group, which specializes in voting rights and election campaign cases.

He's also the founder of Democracy Docket, which calls itself the leading progressive platform for information, analysis, and opinion about voting rights, elections, and democracy. Full disclosure, he is working with the Harris campaign. Some of you may have heard him on the station on the New Yorker Radio Hour with David Remnick in September. A lot has happened since. Mark, thanks very much for some time. Welcome to WNYC.

Thank you for having me on. And I am all in favor of a place of bringing sanity. Thank you. We'll do our best. Would you begin by reminding us of the main strategies that they used in court in 2020? Because they never really claimed election fraud per se, right? There were all these backdoor procedural claims mostly.

Yeah, so I think that's a really important point. You know, there was this magical moment in federal court in Florida, I'm sorry, in Pennsylvania, rather, after Rudy Giuliani held his famous press conference in the parking lot of a landscaping company in which the judge actually turns to him and says, you know, Mr. Giuliani, are you alleging fraud? And he he he pauses for a second. He says, no.

And so, you know, for all of the bravado that Donald Trump and his allies brought to the have brought to the table around this and all of the misinformation and lies they have spread. The fact is that they, for the most part, did not claim fraud. There were claims that were made that involved, you know, ridiculous claims, uh,

by other entities and organizations, you know, claiming things like Hugo Chavez had rigged the voting machines even though he was dead, that, you know, that there were, you know, untoward things that, you know, never panned out to be anything. But in the main, you are correct. The Trump campaign never had any evidence of fraud. And so those claims sort of really being the ones that were advanced. So what did they do?

Well, it was a lot of it was a lot of smoke, you know, and not really much, not much fire. You know, they you know, I hate to recount the many lies they told. But as you recall, they told lies about election officials. In fact, they some of the lies they told about election officials have caused Rudy Giuliani to not just be disbarred, but to serve to be liable for defamation judgments. They told lies about

not being allowed to observe the counting of ballots. They told lies about whether in Arizona there were Sharpie pens that had bled through ballots, and it turns out there were no Sharpie pens. So they promoted a variety of false conspiracies,

none of which panned out, none of which had the, you know, any kernel of truth, but which have caused a large number of Americans, unfortunately, to have a distrust in the elections that they shouldn't have. Yeah. Well, you mentioned the consequences for Rudy Giuliani. I'm curious to get your take on a piece of news this week and see if you think it's a deterrent

to anti-poll worker, I might call it brown shirt authoritarianism, and that even may give many of our listeners a good laugh. If they haven't heard this yet, there was that defamation judgment against Giuliani for falsely claiming those two Georgia election workers, Ruby Freeman and Shea Moss, mother and daughter, were passing around thumb drives of illegal votes. That was totally a lie. And he asked to pay them $148 million in damages. Well, this week,

The judge in that case ordered him, and I'm reading from the Associated Press now, to, quote, turn over his New York City apartment, more than two dozen luxury watches, and a 1980 Mercedes once owned by movie star Lauren Bacall.

To Shea Freeman, to Shea Moss and Ruby Freeman. So first of all, who owns two dozen luxury watches? That blows my mind. But my question for you, Mr. Attorney, is does the whole Rudy Giuliani poll worker defamation thing

And the 60 plus lawsuits that the Trump team lost in 2020 serve as a meaningful deterrent to election play chicanery nationwide this year. And we shouldn't be too worried. So I think there's good news and bad news. So I do think it serves as a warning to lawyers that they are not going to get a free pass this

simply because they're lawyers. And it's not just Rudy Giuliani. We've seen several lawyers, including him, be indicted criminally. We've seen other lawyers suffer bar sanctions. So, you know, it has been, I think, slow coming, but it has been good to see that

that there have been consequences for these lawyers, and that may deter some of the worst conduct that we saw in 2020. That said, and we can't lose sight of this, that the ringleader behind all of this is Donald Trump.

And Donald Trump is more desperate, more unhinged than ever before. You know, he himself is now been convicted of crimes and faces criminal sentencing. And he views winning the presidency as his best ticket to to to avoiding those criminal consequences.

And so he is willing to do or say anything. I mean, his rhetoric in 2020 was worse than it was in 2016, and his rhetoric in 2024 recently has been far worse than it was even in 2020. And so he is going to be pushing

the big lie harder. He is going to be pushing his lawyers and his campaign even more aggressively than we saw in 2020. Now that said, you know, we're, we're, we're prepared, you know, we were prepared in 2020 and we won, you know, almost, we won more than 60 cases and Donald Trump was defeated and, you know, and, and, and, and Joe Biden became president. So I don't want people to be concerned that we're not prepared or that somehow there that, that, that he will succeed.

because he won't. But we need to be clear-eyed about what he is willing to do. If you're just joining us, my guest is Mark Elias, chair of the Elias Law Group, which specializes in voting rights and election campaign cases. You told David Remnick on the New Yorker Radio Hour in September that one of the things you're most worried about is mass voter challenges. What does mass voter challenges mean? And is it already beginning?

Yeah. So the way that our system works and has been abused by Republicans is that states maintain a a statewide voter file. Right. So they they when you register to vote, say, in New York.

The state of New York, the state election board has a record of every registered voter in New York, and they are constantly cross-referencing those records against other records. For example, you know, DMV records or death records, or, you know, if you move out of state and

and another state reports that you now live there, those records, right? So they are constantly updating those voter files to make sure that they are accurate, they are clean, they're easy for election officials to work with, and that individuals who are registered to vote are gonna be able to vote.

Well, what we have seen in the last few weeks, which, you know, as you point out, I predicted is an effort to remove in mass form large numbers of voters from those records.

You know, we're not talking about the one off, you know, person who moves at the last minute. We're talking about trying to remove tens of thousands or hundreds of thousands of voters at the last minute. This violates federal law. We have seen states get sued in recent days for trying to do this. The Department of Justice sued Alabama. The Department of Justice has sued Virginia. But we also see third party vigilante organizations.

sometimes the Republican Party itself, sometimes allies of them, sending to counties their own large lists of names to be removed. And we call those voter challenges when they're submitted by third parties and tried to get forced counties to remove these voters at the last minute. Again, that violates federal law. But there is a lot of

litigation that is going on by these outside groups and by republican states now to try to remove names at the last minute. That hasn't gotten that much attention. You're saying hundreds of thousands of voters, mostly legitimate voters I presume, being challenged.

in court in multiple states. So. Yeah. So the way so the way this works is they submit those those tens of thousands or hundreds of thousands of names to the counties when the counties then either refuse to, you know, when the counties then do the right thing or when the state does the right thing, they will then sue and say, you you should have removed these names. It was just a lawsuit filed

a couple of days ago in Nevada by a group called Pigpen. This is not their first lawsuit that they have filed to try to force these removal of names in Nevada. We have seen more than 100,000 voters challenged in Georgia alone. We have seen tens of thousands of voters challenged in Texas. This is not an isolated thing, and it is part of a coordinated right-wing effort to, along with

states themselves, the Republican controlled states wanting themselves to remove names. It is an effort to kick people off the ballot, off the rolls at the last minute in violation of federal law. And it is absolutely something that should be covered. It's something if people go to democracy docket dot com, you can see we cover it a lot and there are a lot of resources around it.

Is another thing to look out for not exactly lawsuits brought to the courts, but more pro-Trump state and county officials in Republican-led swing states who can slow things down or even refuse to certify the votes or appoint fake electors because they're the ones in charge now to begin with?

Yeah. So I a few months ago said that the Republicans had a three part strategy. The first was to make it harder to vote, engage in voter suppression. The second was to engage in voter challenging, remove removing voters and harassing election officials. And then the third is to target the certification process.

You know, the certification process takes place in the days after the election. And this is how the unofficial election results, the results that you'll you'll give out to your listeners from from, you know, on the day, the night of or the next day of the election, how those then get turned into the actual official result.

And normally this is a very ministerial act. It's usually honestly, Brian, in past years, it's been sort of very celebratory. You know, it's Democrats and Republicans coming together and shaking hands and agreeing that they ran a good election and there are pictures taken and states congratulate all of their election workers. Well, we saw in 2020 Donald Trump target this.

in a number of ways. And in 2022, we saw that again. My law firm and I, we had to sue Cochise County, Arizona because they were refusing to certify the election results. We had to sue Luzerne County, Pennsylvania because they were refusing to certify the election results. And we have seen a larger effort

by Republicans in a number of states to try to target this certification process. Many of your listeners have followed what happened in Georgia, where a MAGA-controlled state board tried to pass rules to put uncertainty into certification. But the good news is they're losing. They lost their lawsuits in Georgia, and they are losing this around the country. So this is a strategy that they will deploy, but it is not one that will at least succeed.

Yeah. And The Atlantic has an article out just today called The Swing States Are in Good Hands. The states that are most crucial to the election have leaders committed to a fair process. Do you think that's overstated when put that way? No, I think that that's right at the state level. Right. I mean, if you look at the the presidential swing states, you know, they they.

you have good people running their elections by and large, and you have Democratic governors. So so I don't worry so much about that. You also had Congress pass the Electoral Count Reform Act, which, you know, kind of doesn't really undermines the ability of there to be fake electors and those kinds of things. I think that the the the place where people should focus and it's not that I'm it's not that I'm, you know,

Worried that that it will succeed but I think where they are going to target is going to be in the days following the election You know the Wednesday Thursday Friday at the county levels where you know, you've also seen reports about Election deniers in various county offices and that is I think where there is an opportunity for more mischief and there'll be the need for more litigation can you name names like are there a certain few states or even a certain few counties and

that you're most worried about in terms of legal mechanisms or whatever you just described? Maybe you call it parliamentary mechanisms to overturn the vote, bureaucratic mechanisms. Look, so this is the reality of my life, is I have to worry about everywhere. You know, I represent...

you know, a large number of of candidates and campaigns around the country and running for House and running for Senate. And obviously I'm helping the Harris campaign. So I am paid to worry about it everywhere. I think for voters, you know, they should have confidence that these election hires will not succeed, that Donald Trump tried this tactic in 2020. They tried it in 2022. We will see no doubt reports of it in 2024, but that in the end,

These are ministerial acts. These are ceremonial acts. And there is no discretion on the part of these election deniers to decide on their own that they don't like the results and therefore they're not going to certify. When they do that, either the state will simply certify over there, you know, will step in to certify on their behalf or the courts will simply order the certification.

Election cases lawyer Mark Elias with us for another few minutes. One avenue I see they're already trying is to challenge the ballot counting laws in some states that allow mail-in ballots to be postmarked by Election Day, not just received by Election Day. They have to be only postmarked by Election Day. I know we have that postmarked standard in New York, for example. Is that potentially a big deal for this election?

Yeah, it's a very big deal. And you're absolutely right. I mean, this is, you know, a common sense law that, by the way, 18 states plus the District of Columbia have. So it is not it is not an unusual policy. It is actually a common sense policy, particularly in an age in which the U.S. Postal Service itself says that it is underfunded and its ability to transmit mail is not as fast as it once was. I mean, you know, and we've all seen instances in which the Postal Service has

uh has suffered uh delays so what states have done is they have enacted these laws that say look as long as the voter can show that they voted the ballot by election day uh uh you know why does it matter to us if it comes in the day after the day after that right we should still count those ballots we should be enfranchising voters who did everything right and shouldn't have them disenfranchised by slow mail service

And, you know, and and yet the Republicans have brought not just one, but a series of lawsuits in a in a variety of states challenging this. One of those cases, which was a lawsuit that they filed against the state of Mississippi. Right. Not a state that you usually associate with competitive elections or being, you know, pro-democratic. But Mississippi had this law and they're challenging that law and that we're waiting on a decision from the Fifth Circuit any day now. And that will be a big, big case to watch.

So before you go, Mark, help prepare us for election night, November 5th, and the next day, Wednesday, November 6th. We're already planning a Wednesday night election special at 8 p.m. that I'll be hosting. I've heard other people say they expect Trump to declare victory before all the polls even close.

You said you expect Trump to go beyond claiming he won all the swing states this time and to claim he won practically every state. So can you expand on that, declare victory theater that you think will be part of what happens? And what else? An informed citizenry, an informed listenership should be ready for kind of to be media literate on November 5th and 6th.

Sure. So the first thing everyone needs to keep in mind is that Donald Trump lies about everything. And and there's no reason why he's going to stop lying now that simply because it's an election. So Donald Trump, after 20, after he won in 2016, claimed that he would have won California, but for illegal voters.

In 2020, he contested the outcome in six states in court. But since then, he has added New Jersey, California, New York and Minnesota to the states that he says that he believes he actually won when, in fact, he lost them all by by large, large margins. I didn't even know that he claims he won California and New York in 2020. He did. He said that if only legal votes were counted, that he would have won those states.

The fact is that Donald Trump is going to say that he won. And he's, you know, I, in fact, you know, Brian, I've raised this in other interviews.

If you ever have a chance to interview Donald Trump, I think it would be a very fascinating question for a interviewer to ask Donald Trump, can you tell me one state you believe you legitimately lost in 2020? And I suspect he'll say there weren't any. But I think in 2024, we need to be prepared that Donald Trump will say he won the election. He will declare he won the election before all the ballots have been counted.

And he will insist that he won the election regardless of what the results are. And by the way, I don't think he'll be alone. I think that we will see that by House members. There are a number of very competitive House districts in New York, on Long Island, and in Westchester and Rockland County, and up in the Hudson Valley, and up along the New York State Thruway. But wait, are you saying that some of these...

relatively moderate Republicans who are running for reelection in the suburbs of New York are going to try the Trump tactic of declaring victory before the votes are counted and lying about the outcome if they lose?

I do. And I say this as someone, you know, I was born in New York City. I lived on Long Island. I lived in I graduated high school in Rockland County and I went to college in upstate New York. And these these so-called moderate Republicans are not moderate. There is only two kinds of Republicans in the House of Representatives. And your listeners need to know this. There is proud MAGA and there is scared MAGA. And a number of them fall in the scared MAGA camp. But they are all with Donald Trump.

They are all they all vote with Donald Trump. They all they all support him. And not one of them will be willing to tell the truth about the outcome of the of the twenty twenty four election. Almost none of them willing to tell the truth about the twenty twenty election. So so, you know, I think we need to be prepared for who the Republicans are, not who they are telling people on television ads they are.

And there we leave it with Mark Elias, chair of the Elias Law Group, which specializes in voting rights and election campaign cases. He's also the founder of Democracy Docket, which calls itself the leading progressive platform for information analysis and opinion about voting rights, elections, and democracy. And he is working with the Harris campaign. One more time, that full disclosure. Thank you very much for joining us today. Thank you. Thank you.

Brian Lehrer, a daily politics podcast, is an excerpt from my live daily radio show, The Brian Lehrer Show, on WNYC radio, 10 a.m. to noon Eastern Time, if you want to listen live at WNYC.org. Thanks for listening today. Talk to you next time.

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