The New Yorker Radio Hour - Will Voter Suppression Become the Law?

Episode Date: September 20, 2022

Now seven weeks away, the midterms are often cast as a referendum on the President and his party. But, this year, some see democracy itself on the ballot. One of those people is the attorney Mark Elias, who has made the fight for voting rights his mission. The Supreme Court will hear two of his cases in its upcoming term, which starts next month. Earlier this year, the staff writer Sue Halpern profiled Elias for The New Yorker, and she spoke with him again recently about the legal fight ahead. “I really believe that when the history books are written,” says Elias, “what they write about our generation will be whether or not we were able to preserve democracy.” 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. This is the New Yorker Radio Hour. I'm David Remnick. The midterm elections are seven weeks away. And they're often cast as a referendum on, sometimes a reckoning on, the president and his party. This year, however, some see democracy itself on the ballot. And one of those people is Mark Elias. He's a lawyer and a staunch Democrat. But even Steve Bannon has said, admires Elias saying he's crazy but a fighter. Elias is fighting some of the most high-profile cases involving voting rights in the United States. The Supreme Court will hear two of those cases in its upcoming term, which starts next month.

Staff writer Sue Halpern recently profiled Elias for the magazine, and as she was reporting her piece, Sue could often only reach Elias late at night, sometimes past midnight, but recently she caught him at the relatively civilized hour of 8 p.m. It seems to me, given the fact that every time we talk, you're sitting at your desk and it's late at night, that this work is no longer a job. It feels to me that you've found something that you are so passionate about that you can't stop. Yeah.

Which made me think that maybe you sleep in your chair? No, I don't sleep in my chair. my chair, but I wake up thinking about this. I work all day at it. I spend my weekends worrying about this. I really believe that when the history books are written, what they write about our generation will be whether or not we were able to preserve democracy or whether we were the generation that lost it. That's the way Mark Elias sees his work as saving the soul of the country. When I spoke to him via Zoom. He was at home in northern Virginia in his makeshift TV studio, complete with a backdrop of photos of his dogs. Elias is a political lawyer. He told me his job is to help Democrats win

elections. He was counseled to Hillary Clinton's presidential campaign, and he's also worked for Bernie Sanders. But his mission is expanded. Exactly a year before we spoke, he founded his own law firm, the Elias Group, that's focused primarily on beating back efforts to undermine democracy. So you once told me that you were born a Democrat. What was it like growing up in your house? Was it super political? Why do you know that you were born a Democrat? You know, I was born in a New York, Jewish New Deal family.

And it never occurred to me that a growing up as the child of, you know, two parents who grew up in the Great Depression and were Jewish, that you could be anything other than a Democrat. My family wasn't super political, but it was, I mean, there was never a question that my family were Democrats. It was just in your DNA somehow. I think the sense was that, you know, Franklin Roosevelt and then John Kennedy, that they had done a lot for Jewish Americans, that there was a welcome place in the Democratic. Party for immigrants in other racial and ethnic minority communities, and that that was what

the Democratic Party represented. Also, I didn't grow up wealthy. And the Democratic Party was the party of, you know, people who didn't have millions of dollars. So you're working on a couple of cases that are going to be argued at the Supreme Court and the next term. specifically thinking about Alabama and also North Carolina. I'm wondering if you could just take us through that a little bit. What's at stake in Alabama? What's that case about? And then similarly with North Carolina, which are very different.

They're very different. So let's talk about them in that order, which is the order that they'll be heard by the Supreme Court. So the Supreme Court will begin its term in October, as it always does. And one of the very first cases, it will hear for arguments. is a case out of Alabama that involves the redistricting that took place after the last census. After the 2020 census, the state of Alabama drew one district in which black voters could elect their candidate of choice. We believed that, and our clients believed, that Alabama should have to draw two districts that black voters could

elect their candidate of choice. The significance of the Alabama case is that it has the potential to gut a significant part of the Voting Rights Act, which is the part of the Voting Rights Act, is called Section 2, that makes it unconstitutional, illegal to disenfranchise voters on the basis of race. Essentially, this case has the possibility of making it impossible in the future for other communities of color to use the Voting Rights Act to seek relief for discrimination. So we sued and we won. And what's important for people to realize is that this case that we brought under the Voting Rights Act was heard by three judges, three federal judges, two of whom were appointed by Donald Trump, one of whom was

originally appointed by Ronald Reagan. So this was not exactly a, you know, a gimmy. you know, court. And they found in our client's favor, they found that the Voting Rights Act, in fact, required the construction of a second black district. That case was then appealed to the U.S. Supreme Court, and the U.S. Supreme Court is going to hear that case. And what are you going to argue? What's the strategy? So our argument is really straightforward, which is that the Supreme Court has for 30 years had a standard. And unfortunately, in states like Alabama, there are still high, high degrees of racially polarized voting, where white voters simply won't vote for the candidate of choice of the black community. So tell us about North Carolina what's going on there.

So I will predict right now that next June or July, when we're at the end of the Supreme Court term, that the biggest case of the term will be more v. Harper. So here, what happened is the North Carolina legislature passed a hideously gerrymandered map, again, a congressional map. We brought a lawsuit on behalf of a group of individual plaintiffs, the lead plaintiff being someone named Harper. we brought a lawsuit under the North Carolina State Constitution. The North Carolina Supreme Court said, yep, this violates it and ordered a new map, a fairer map. And so the Republican legislature of North Carolina has now brought that to the U.S. Supreme Court. And this is a very, very, very, very dangerous case because their theory, and it is just a theory.

It's not anything that any court has ever adopted is that where the U.S. Constitution says that the redistricting or the setting of congressional boundaries is determined by the state's legislature, that that means only the legislature and not the courts. So it essentially eviscerate state judicial constitutions and state judicial review of state legislative acts involving federal elections. Look, this is a cousin, more like a brother, half-brother maybe, of the argument that Donald Trump made after the 2020 election when he said the state legislatures should go ahead and appoint alternate slates of electors. So spin it out. If they buy that argument, what are the implications? So look, one of the first cases you read in law school, one of the most famous Supreme Court cases of all time, is Marbury v. Madison, which stands for the proposition that legislatures enact laws and courts have the final say on whether the laws are constitutional. Our system of democracy can't rely entirely on every conceivable act of politicians and political actors being anticipated. We have to have a system in which there are certain norms respected. And one of those norms is a court tells you this is unconstitutional, so you do something different.

and what we have lost in the Republican Party is any sense of shame or decency, and therefore they don't abide by those norms. Who is supposed to hold them responsible to the norms? It is ultimately the job of all of us as citizens, you know, and that's the part, Sue, that I'm not sure is working, because what you need is the citizens saying, look, we understand the game you're playing, but like, we're not here for it. We're not going to support you if you play these games.

You're going to pay, in fact, you're going to pay a penalty. You're going to pay a penalty that goes beyond this place and this time and this election. And I'm just not sure that that's happening right now. This is the New Yorker Radio Hour with more to come. One of the things that I know that you've encountered from your critics is this idea that the Supreme Court is now extremely right-wing, conservative, and as are many state courts, and that in bringing cases that you have the potential to lose, as in any case, you also have the potential to have set pretty bad precedent. What's your response to when people say,

Mark, you should not be bringing these cases? Don't bring Alabama. Don't do this because look what's going to happen. Yeah. So what's interesting is that I don't get that from the voters. You know, I don't get that from the people living under these systems. You know, the black voters of Alabama want fair representation in Congress. It is easy for people in very comfortable circumstances to be playing a long game when the voters are actually suffering in real time. What are we saving these precedent for? You know, if not now, when? You know, like, we're there, guys.

Like, we're not saving all of this for the future. If we don't use the tools we have to save democracy today, then we may have a wonderful museum of unused tools in the future, but we won't have a democracy to use them in the future. And therefore, you really can't worry about what the precedent is going to be, you know, for 10 years from now or 20 years from now. We are about a month and a half away from the election. Is that about right?

I'm wondering, given the work that you've been doing, I know that you filed a case today, actually, in Nevada. Do you anticipate more voting rights stuff coming down the pike between now and then, or is it too late? Yeah. So it's a really good question. And we are beginning to see a steady stream of efforts by Republicans and conservatives to prepare to subvert the outcome of the election by either disqualifying large numbers of

voters for specious or no reasons or setting up counting rules or systems that will not accurately count ballots or simply refusing to certify accurate results. And so we've seen a little bit of all of that in the last few weeks. And that is a growing and worrying trend that I expect we will see in the coming weeks and then in the immediate aftermath of the election. Right. The largest voter challenge or disqualification we've ever seen as a country was in 1964. in Alabama and Mississippi. The second largest was in 2021 in Georgia, where Republicans challenged

the eligibility of 364,000 voters, which was 8% of the total number of votes cast in the runoff Senate elections. We were able to beat that back in court. We were able to say to judges like this is ridiculous, you can't do this. But as we sit here today, there have been more than 65,000 and challenges already lodged this year, this year. 65, we're only in the beginning of September. 37,000 of them were lodged in a single county today, Gwinnett County. This was 37,000 challenges on one day in one county. It is a mass challenge.

And it's not just Georgia. You know, we have seen Republicans gathering the, tools to do this throughout the country, and we're starting to see evidence of them do this in other states as well. It is election vigilanteism, and we cannot let it take hold. So this is important because when Governor Kemp, the governor of Georgia, signed one of the most restrictive voting acts ever last year, one of the parts of it says that anybody in the state can challenge the legitimacy of any other voter as many challenges as they want to, bulk challenges to voter after voter after voter. And in this case, they were doing it on the basis of like

discrepancies in their addresses. It's a swing district. There are more people of color there. There are more Democrats there than there had been before. I think that as Mark looks at what's going on in the country, particularly with respect to restricting people's ability to vote. He sees it as a kind of, you know, David and Goliath story. I mean, obviously he has a lot of resources, but nonetheless, there is a sense in which, you know, there's, there are these big, powerful forces that he in his team are trying to push back. When we spoke, he kept coming back to this story of a prisoner of war who came to his bar mitzvah class when he was 13. And it seemed to me to be the story that really defines him and motivates him.

He had been an American citizen who had been captured by the Nazis, a Jewish soldier who was put out in a work camp. And for a period of the season, they picked potatoes. And he told us, and it's like vivid in my head that he and the other Jewish prisoners of war in this camp, camp got little pieces of barbed wire and press them against their fingers to poke holes in the potatoes so that the potatoes would rot. I mean, just think of the futility. You think what I'm doing is obsessive and perhaps futile. Here's a 19-year-old kid, far from home, trying to destroy the German war effort

by rotting potatoes by poking holes with barbed wire and his bare hands one at a time. And so, like, that has stuck with me. So I'm going to be poking holes in the potatoes until there's nothing left to poke holes in. How do you get other people to poke holes too? I mean, you've now assembled, you know, 70-some-odd people to poke holes. How do you get people to be that passionate alongside you? So I think part of it's a success and part of it's a failure. So the success is what you just said.

Like, you know, we've been able to recruit a tremendously talented group of lawyers who are passionate about this. You know, Gen Z and Young Millennials get a lot of bad rap, but not from me and my firm. Like, the passion that they have for progressive issues, like, really aligns with our law firm. So we don't have trouble finding really, really talented, excellent lawyers. The place where I have failed, candidly, is I'm not sure I'm reaching the people who are listening to this podcast. I don't feel like Americans understand and prioritize what is happening.

And that is where I feel like the greatest need is, but I feel like I am not accomplishing what I need to. I'm not optimistic. I'm just going to do everything I can. That was political lawyer Mark Elias, and he was interviewed by staff writer Sue Halpert. This is the New Yorker Radio Hour. Thanks for joining us. Next week, we'll have Questlove in conversation with songwriter, singer, and producer Maggie Rogers. Music is not a job. It's a way of being. Like, it's a part of you. I mean, to me at least.

Yeah, I'm glad you know that at 20 because I had to learn that. 50. And please don't hesitate to come to our website, New Yorker.com, if you're interested in tickets to any of our events to the New Yorker Festival, which is back for the first time and a long time, completely live on stage. New Yorker.com is the place to go. Have a great week. 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 Tune Arts, with additional music by Alexis Quadrata. This episode was produced by Emily Boutin, Brita Green, Callalia,

David Krasnow, Louis Mitchell, and Gophane and Putabuele. Along with Jeffrey Masters, Will Coley, Jenny Lawton, and Michael May. And we had assistance from Harrison Keithline and James Napoli. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.