The New Yorker Radio Hour - Preparing For Trump’s Next “Big Lie,” with the Election Lawyer Marc Elias

Episode Date: September 6, 2024

Of the sixty-five lawsuits that Donald Trump’s team filed in the 2020 election, Democrats won sixty-four—with the attorney Marc Elias spearheading the majority.  Elias was so successful that Steve Bannon speaks of him with admiration.  Now Marc Elias is working for Vice-President Kamala Harris’s campaign, and, despite his past victories, Elias says that 2024 is keeping him up at night.  The bizarre antics and conspiracy theories of Rudy Giuliani are a thing of the past, Elias tells David Remnick: “We should all expect that they are more competent than they were before. And also Donald Trump is more desperate than he was before. … He faces the prospect of four criminal indictments, two of which are in federal court.” Election-denying officials are now in power in many swing states; Trump has publicly praised his allies on state election boards.  Elias fears the assault on the democratic process could be much more effective this time.  Still, some things don’t change. “I believe Donald Trump is going to say after Election Day in 2024 that he won all fifty states—that there’s no state he didn’t win,” Elias says. “That is just the pathology that is Donald Trump.” New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. In the fire hose of outlandish statements bursting out of Donald Trump, like Mexico sending Hanam Elector to the United States or Kamala Harris becoming black just recently, well, you might have missed something like this. You don't worry about voting. The voting, we got plenty of votes. You got to watch election.

election night. You know, it used to be election day, election night. Now it's election month. Now it's election period. Some of these things going for 53 days. We've got plenty of votes, because in Trump's view, he's always the winner and the election is always rigged. In 2016, he said it was rigged until he won it. He claimed the 2020 election was stolen as he was desperately attempting to steal it. Now, right up to the January 6th insurrection. Trump's main strategy for denying his loss in 2020 was a barrage of legal challenges. For Democrats fighting off those challenges, the tip of the spear was an attorney named Mark Elias. He was so good winning virtually every case that Trump's team brought that even Steve Bannon speaks of him with a sort of admiration.

Now Mark Elias is working for Kamala Harris's campaign, and despite all his past victories, he is really concerned about 2024. Election-denying officials are in power in many of the swing states. Mark Elias fears that the assault on the democratic process this time around could be much more effective. In 2020, Donald Trump did not really have a plan for the post-election. You know, Donald Trump, I think, thought he was going to win the election. And when you looked at the actual execution of their post-election, plan such as it was or their litigation, it was pretty haphazard. I mean, you know, we were talking

about Rudy Giuliani holding press conferences in, you know, the parking lot of landscaping companies. And one of the things I warn people about is that 2024 is not the year of Rudy Giuliani, you know, that already in the pre-election, the quality of the lawyering we see on the other side. No more streaks of hair dye coming down the cheek during tense press conferences. Correct. And so I think, you know, We should all expect that they are more competent than they are before. And also Donald Trump is more desperate than he was before. He's more desperate than he was before.

How come? Well, you know, in 2020, he was in the White House. He wanted to stay in the White House. But, you know, being ex-president is not the worst thing in the world. And even still, he was willing to instigate a violent insurrection. Now he faces the prospect of four criminal indictments, two of which are in federal court. I think he believes that his ticket to personal freedom rests on him winning the White House and at least having the two federal cases dismissed and maybe, you know, he's able to do some magic

with the state cases. So other than getting rid of Rudy Giuliani and that level of talent or non-talent, what would they do? So I think the biggest thing we have seen them do is to drive out of election administration, good election officials and good workers, and really. replace them in many instances with bad election officials and election deniers. So in 2020, Donald Trump wound up calling along with the chair of the Republican National Committee, kind of an extraordinary thing if you think about it, the sitting president and a party chair called two local county

certifiers in Wayne County, Michigan to try to get them to violate their oaths of office by refusing to certify the election. That failed. Okay. In 2022, We saw in Cochise County, Arizona, the county tried to refuse to certify the election results. In 2022, in Pennsylvania, we saw Republican election in Ires trying to refuse to certify election results. And in most of those instances, litigation wound up being the tool to compel them to certify. That is a suboptimal state of affairs going into a national general election. One of the things that struck me last time around, on a very very, human level was to see very earnest public servants, volunteers, counting votes, but intimidated

by the process. And the intimidation went all the way up to the president of the United States. Do you think this time around there's an element of greater intimidation or the opposite? Do you feel that the people that are working these jobs feel protected overall by the legal system. So I think it's a mixed bag. I mean, on the one hand, we should take solace in the fact that the system held in 2020. But by its chin-y-chin-chin, I mean, it's barely. Yes, barely. And there is more robustness preparing for 2024 than there was in 2020. So that's part of the good news. The other positive is that you do have more responsible election officials in more senior positions. You have a Democratic governor in Pennsylvania, in Michigan, in Wisconsin, in Arizona. You have Democratic Secretary's

State in those places as well as in Nevada. You know, and in Georgia, you have Republicans, but Republicans who have been battle tested against Donald Trump. So that's the good news. The bad news is that there is more force being placed on the system by the other side. Well, tell me about that force. What do you mean by that in particular? So the last two years have been pretty extraordinary in the volume of anti-voting litigation that is being filed by Republicans. And I think that it falls into two buckets that are really relevant for today. The first is they are bringing litigation to upend the voting process. They are literally suing states to strike down laws that prohibit the harassment of election officials.

I'm not making this up. Literally, they are saying that they have free speech rights that are being infringed by laws that prevent you from harassing or intimidating election officials. So that's kind of one category. The other is they are challenging laws that simply make voting more accessible to people. For example, in several states, they are challenging laws that say that ballots can't. cast by election day can be counted. These are cast before election day, postmarked for election day, but come in the day after they want all of those ballots thrown out. And that's the kind of litigation, frankly, that just didn't exist, you know, before this election. So there's just a lot more stress being placed on the system. Let's get down to some brass tax. Georgia's state election board recently voted to change the rules of certification to allow for local election officials to investigate ballot counts before certifying those results. This sounds like minutia, but in fact, if I have you right, it's an insidious change. Absolutely, it's insidious. I mean, it's someplace

between insidious and insane. I mean, this is equivalent to saying at a football game that we're going to give the scoreboard operator the opportunity to investigate for themselves, whether a touchdown was scored. Right. I mean, the job of of the certification boards in these states is normally described as mandatory or ministerial. Their job is to take the results that they have and put them on state-approved forms to sign those forms, and then everyone takes a photo together and celebrates democracy. I mean, the history of the certification process in the United States was part of the reinforcement mechanism of democracy. It is part of what I sometimes called the pageantry of democracy, where after an election is hard fought, the local

election officials at the county levels on a bipartisan basis come together and congratulate themselves for a job well done and then sending those forms onto the state where then another group of bipartisan officials self-congratulate themselves for a job well done again. A bigger certificate is filled out with maybe now calligraphy. And then it goes to the governor. And then a bigger form yet still is filled out, signed by him, and that definitely has calligraphy, and it almost certainly has a ribbon. And those forms get sent to the House of Representatives and the National Archivist, and then those are put in a wooden box and are opened to great fanfare by the vice president. And it is that pageantry of democracy that takes the unofficial results and through

reinforcement mechanisms has everyone feel like whether they are candidate won or lost, it was a job well done. So these rule changes have just been challenged by the Democratic Party. A lawsuit was filed before a state judge in Atlanta that claims that these rule changes actually violate state law, which requires the state election board to certify them. Look, the fact is that the requirement in Georgia law is that the boards that do the certification do the ministerial mandatory act of certification. There is nothing in the law that gives them more than that, and that they do it by a date certain. And that date certain is in the law as well. And what you have seen is that this sleepy board got a shoutout at a Donald Trump rally. Exactly. Let's listen to that shout out.

Listeners might have actually heard Trump praising these Georgia state election board officials by name. So let's listen to that. At least one of them was actually there. I don't know if you've heard, but the Georgia State Election Board is in a very positive way. This is a very positive thing, Marjorie. They're on fire. They're doing a great job. Three members,

Janice Johnson, Rick Jeffreys, and Janelle King, three people are all pit bulls fighting for honesty, transparency, and victory. They're fighting. Pit bulls fighting for honesty.

What do you make of that? I think we sometimes, become immune to the abnormality that is Donald Trump. I mean, this is a presidential candidate at a political rally calling out by name three of five members of a state board whose job is to pass regulations for the conduct of voting and vote counting. I mean, this is not a prominent body of people. This is not a body that is normally viewed in political terms. And Donald Trump called them out by name and note, and this is something that I think has not been focused on enough by the media, he only called out three of the five. In fact, he acted as if it was a three-member board.

There are five members of the board, but he only called out the three that are in the majority on these rules that he likes. Now, is the only possible response to this to just get out the vote and win by a lot? So here I am somewhat at odds with some of the messaging that other people have. Yes, everyone should vote. Yes, it is critical that everyone make sure they are registered, double-check their registration, they have a plan to vote and vote. So yes, it will be good for democracy and good for the country if Comaliris wins in a landslide.

That said, we cannot create a two-tier election system in which one candidate has to win by one vote, and the other candidate has to win by a landslide. In fact, it's even worse than that, because Hillary Clinton got three million more votes than Donald Trump in the popular vote. Joe Biden got seven million more votes than Donald Trump in the popular vote. So we cannot set up a system where, in addition to the natural bias that the electoral college has in favor of Republican candidates, which are the rules, those are the rules set out in the Constitution, that we then set an even higher bar, an artificially high bar, that somehow Democrats, have to win in landslides, otherwise they are legitimately contested, whereas when Hillary Clinton

loses narrowly in three states, she's expected to concede. When John Kerry loses narrowly in one state, he's expected to concede. Look, I think the reason why I am concerned about 2024 is, let's talk about what's happened since then. Donald Trump, not that long ago, said that he believes he didn't just win Nevada, Georgia, Wisconsin, Pennsylvania, and Michigan, right? Those are the five states he contested in 2020. He also said he believes he won Minnesota, right? He just said if Jesus were counting the votes, he also won California. Right.

So he lost Minnesota by 7%. He also recently said that he believes he either won or will win or both New Jersey and New York. And most recently, as you point out, he's added California to that list. I think we need to take him both literally and seriously. One of the worst pieces of advice we got was at one point to say to take him seriously, but not literally. I believe Donald Trump is going to say after Election Day in 2024 that he won all 50 states, that there's no state he didn't win. Possibly 51. 51, if you include the District of Columbia.

Correct. And like that is just the pathology. that is Donald Trump. And Trumpism ultimately can't yield to anything other than Donald Trump's pathology. I'm talking with election lawyer Mark Elias, and we'll continue in a moment. What are some of the other tactics, Mark, that are currently being used to sow doubt in our electoral process? And what have been the most effective among them? Yeah.

So I think that one of the big tactics that I am worried about are massive voter challenges. So, you know, many states for decades have had laws that say, if you happen to know that your uncle died or has moved out of state, you can notify the county and say, you know what, my uncle died or moved out of state. And their name would then be removed from the list or put in a pile of people who probably shouldn't be able to vote. What we saw after 2020, and the timing of this is very important because it was right after 2020. It was in connection with the runoff Senate elections in 2021, which were in January of 2021. We saw the Republican Party react to Donald Trump's loss in the days afterwards by filing 364,000 challenges in connection with those Senate elections. Think about that.

364,000 people had their right to vote challenged by Republicans and their allies leading up to those Senate elections. Now, my team and others, we litigated those, and there was a lot of. of organizing and counties, frankly, didn't know what to do with them, so they disregarded them in many instances. What did Georgia do? Georgia came back and passed a new law to make it harder to dismiss challenges and easier to challenge. In 2022, we saw another 100,000 challenges in Georgia. When those didn't succeed, what did Georgia do this year? They came back with another law to make it easier to challenge voters and harder to defeat challenges. And it's not just Georgia. We have seen tens of

thousands of voters challenged in Texas. We have seen tens of thousands of voters challenged already in Nevada. We have seen challenges launched in Pennsylvania, mass challenges launched in New York. And what percentage of these challenges would you say are even within the realm of reasonable? Close to zero. I mean, these are challenges that are created off of right-wing technology platforms using large data sets, AI, whatever it is, and they generate these mass spreadsheets of names. They are generated by voter suppression outfits or individuals who are misguided, who then submit them to the counties. And it is a real challenge. We face the possibility that in 2024, we will see more voters have their right-to-vote challenge than in any time since the passage of the Voting Rights Act and the Jim Crow South. Mark, it's been reported that Kamala Harris's legal team is 10 times larger, 10 times larger than Joe Biden's legal team was in 2020.

Why is the scale so much larger? And what are they looking at this time around that they weren't looking at last time? Look, I think that the scale of the problem in 2024 is at least 10 times what we thought the problem was in 2020. I won't say it's 10 times larger than the problem was in 2020, but the anticipation. The anticipated problem. I mean, let's be clear, in 2020, Donald Trump and his allies launched 65 separate lawsuits to try to overturn the election in five states. Now, maybe this is outside your immediate realm, but the outcome of all of this last time around was an insurrection on Capitol Hill on January 6th. And election denialism was at the heart of that. Does the potential for greater violence keep you up at night when it comes to the post-election period?

Everything keeps me up at night about the voting process and the post-election period. I think that the fact is that if you look at the median or average, either one, where Republicans were at this point in 2020, and you look at where they are today, they have shifted markedly against democracy. I mean, here's one way I measure this. there is no Republican official, elected official, more responsible for the insurrection and the lead up to the insurrection on Capitol Hill than Mike Johnson. Mike Johnson at the time was a backbench Republican from Louisiana, and he organized the Republican members of the House to file a brief to throw out the election results in four entire states.

This was an effort led by Texas to go to the U.S. Supreme Court. And Mike Johnson organized 126 Republican members of the House to sign onto that brief. And that was the organizing effort for then the night of January 6th when they voted against the insurrection. He's now the Speaker of the House. He's now the Speaker of the House. And if you had a similar brief today, do you think there'd only be 126 Republicans? No, there'd be 200 Republicans in the House signing on to that brief today. Mark, if you had to predict, what does the morning of November 6th look like in a very tight race? So, first of all, I think everyone needs to be prepared about two things. The first is that

Donald Trump will declare victory at some point, either before the polls close or certainly before the ballots are counted, right? So we will wake up on the morning of November 6th, almost a certainty with Donald Trump having declared victory. The second thing is that I expect that you will have immediate claims on the Republican side to that the ballot counting needs to stop, and that ballots still being counted are fraudulent. And we saw that in 2020, but I think we're going to see it in much greater effect in 2024, which is why they are in state after state trying to do what they can to cast doubt on ballots that are not fully counted by election day. Well, it looks like a pretty grim picture no matter what.

No matter what the vote counts, it looks like chaos is almost inevitable. I don't think chaos is inevitable. I think vote denial is inevitable. Is there a difference? Yeah, because I think that Donald Trump can lose and there not be chaos. I mean, I wouldn't describe the post-election litigation. in 2020 as chaos. I mean, it became chaotic, obviously, around January 6th. So it is possible that we see that in 2024 where Donald Trump has lost. Everybody knows Donald Trump is lost, and there is cleanup to be done

around it, but it's not chaotic. I think what we won't have is what we had in 2016, which is a candidate, in that case, Hillary Clinton, who graciously conceded the election when she lost, or in 2012 when we had that, or in 2008, or in 2004, or in 2000. Are you telling me that there's no way Trump graciously concedes or that neither candidate graciously concedes? I don't think there's any chance Donald Trump does. Look, I was the general counsel for John Kerry's campaign in 2004. And as contentious as this moment is, you remember, 2004 was a contentious moment, particularly for Democrats. We had felt like the 2000 post-election had led to a stolen election or at least the disputed election.

It was very, very hard to have a conversation with John Kerry in which I said to him, you do not have a path to win a recount in the state of Ohio. And he conceded. And in 2016, I had to tell Hillary Clinton, as her general counsel, that there was no path to overturning very, very close results in three states. after she had won the popular vote against Donald Trump of all people. But that's where the votes were. And so, look, I'm not saying that I get to be the first say or I get to be the final say. I don't candidates make their own decisions about what to do. But Democrats have a history of accepting the reality of election results. And until Donald Trump, by the way, I could cite examples of Republicans who had a history of accepting reality on the election results. Mark, thank you so much. It's good to talk with you.

It's good to talk to you. Mark Elias. He runs the Elias Law Group that's working for Vice President Kamala Harris' campaign. This is The New Yorker Radio Hour. I'm David Remnick. Thanks for joining us.

See you next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Toon Yards with additional music by Louis Mitchell.

This episode was produced by Max Bolton, Adam Howard, David Krasnow, Jeffrey Masters, Louis Mitchell, Jared Paul, and Ursula Summer. With guidance from Emily Boutin and assistance from Michael May, David Gable, and Alejandra Deccate. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.