Quick Read

Legal experts detail how a coalition of attorneys general, public interest groups, and pro-democracy media are actively combating Donald Trump's efforts to federalize elections, suppress votes, and undermine mail-in voting through legal challenges and public education.
Trump's new strategy involves a national voter database and weaponizing the USPS to control ballot delivery.
States, not the federal government, constitutionally administer elections, a key defense against federal overreach.
Mail-in voting, despite Trump's claims, is secure and has been a long-standing practice in the U.S.

Summary

This episode features an interview with Marc Elias, a leading election lawyer, who discusses the legal battles against Donald Trump's perceived attempts to subvert democratic elections. Elias and host Michael Popok highlight Trump's strategies, including creating a national voter database to disenfranchise voters, weaponizing the U.S. Postal Service to reject ballots, and falsely claiming mail-in voting leads to fraud. They explain the constitutional role of states in administering elections, the legal victories achieved against Trump's efforts, and the importance of public engagement and independent pro-democracy media in protecting voting rights. The discussion also critiques mainstream media's role in echoing Trump's narratives about election delays, particularly in California, and emphasizes the need for collective action to ensure free and fair elections.
The integrity of democratic elections is under constant threat from organized efforts to suppress votes and spread misinformation. This discussion provides a critical understanding of the legal and political strategies employed to undermine election processes, particularly focusing on the constitutional division of power in election administration. It empowers citizens with knowledge about their voting rights, the ongoing legal defenses, and the vital role of informed participation and a robust pro-democracy media ecosystem in safeguarding the electoral system.

Takeaways

  • Attorneys general and public interest groups are preparing lawsuits to protect voting rights in their respective states, countering federal interference.
  • Donald Trump is attempting to build a national voter database to remove voters he deems ineligible and is trying to conscript states and the USPS into this scheme.
  • Marc Elias's law firm is undefeated in over 30 cases preventing states from turning over voter data to federal entities.
  • The U.S. Constitution grants states the authority to set the time, place, and manner of federal elections, with the President having no direct role.
  • Claims that mail-in voting is inherently fraudulent are false; states like California and Washington successfully conduct elections primarily by mail.
  • The argument that ballots postmarked by Election Day but received later cannot be counted is a legal strategy to disenfranchise voters, potentially impacting early voting and provisional ballots.

Insights

1Trump's National Voter Database and USPS Scheme

Donald Trump is pursuing a strategy to create a national database of voters, intending to remove individuals he doesn't want to vote and then provide this 'approved' list to states and the U.S. Postal Service. The goal is to prevent the delivery or return of ballots for those not on his list, effectively federalizing voter eligibility and ballot access.

Marc Elias states, 'Donald Trump wants to build a national database of voters... so that he and his administration can go through it and remove the people they don't want to vote... The other thing that Donald Trump is trying to do is to try to get the US Postal Service to agree that if someone is not on the list... the US Postal Service won't deliver that person a ballot or return their ballot.'

2Constitutional Authority for Elections Rests with States, Not the President

The U.S. Constitution explicitly grants states the authority to administer federal elections, including setting the time, place, and manner. The President has no constitutional role in dictating election procedures or counting ballots. Trump's assertions that states are his 'agents' or that he can issue executive orders on elections are constitutionally baseless.

Marc Elias clarifies, 'The Constitution gives the states the authority set the time, place, and manner of federal elections... The president has no role... When Donald Trump says that he believes the states are his agents for counting and tabulating ballots... that is wrong. It is a lie, but it's also just constitutionally nonsense.'

3The Misinformation Campaign Against Mail-in Voting and Extended Counting Periods

Trump and the Republican Party have falsely framed mail-in voting as rife with fraud, despite its long history of use (since the Civil War) and successful implementation in many states. They also attack states like California for taking time to count ballots, which is necessary due to large populations, multi-language ballots, and processes like signature verification and ballot curing, which are often implemented to address fraud concerns raised by the right-wing.

Marc Elias states, 'Donald Trump decided he didn't like mail-in voting because during COVID he thought it would benefit Democrats... Trump and the Republican Party are now in a war on every aspect of mail-in voting.' He later adds, 'California counts slowly for three reasons. Number one, it is a very big state... Number two, as you point out, it gives people more time to ensure that their ballot has been received and that it is processed. And if it is rejected... it gives voters an opportunity to cure it.'

4Signature Matching is 'Junk Science' and a Barrier to Efficient Counting

The practice of signature matching to verify mail-in ballots, often implemented to appease concerns about fraud, is criticized as 'junk science.' No court in America would allow lay handwriting analysis as evidence, and federal rules of evidence prohibit it. Eliminating this practice could significantly speed up ballot counting without compromising integrity, as actual voter fraud is statistically negligible.

Marc Elias argues, 'Let's stop the junk science of signature matching. And it is junk science. There is no court in America that would allow a person to testify whether a signature on one document matches a signature on another document. In fact, as you all know as lawyers, there's actually a federal rule of evidence that prohibits that.'

5Weaponization of Criminal Prosecution for Election Intimidation

A new and concerning tactic involves using the threat of criminal prosecution against voters not on 'approved' lists or against election officials who do not disenfranchise voters as desired by certain political factions. The presence of federal prosecutors observing vote counting, as seen in LA, indicates a move towards intimidation to influence election outcomes.

Marc Elias explains, 'What Donald Trump's going to do is say that if you are voting and you're not on the approved list or you're an election official and you're not disenfranchising voters the way he wants you to, that right off the stage... will be a criminal prosecutor... there was a federal prosecutor that was sent to observe the vote counting in LA.'

Bottom Line

Big law firms are increasingly reluctant to engage in pro-democracy issues and election litigation, creating a resource gap for groups fighting voter suppression.

So What?

This reluctance shifts the burden to smaller, specialized law firms and public interest groups, potentially stretching their capacity and limiting the overall legal defense against election subversion tactics.

Impact

There's an opportunity for new legal talent and funding to fill this void, potentially through specialized pro-bono networks or dedicated election law practices, to ensure robust legal defense for democratic processes.

Key Concepts

Three-Legged Stool of Democracy Protection

Protecting democracy relies on three interdependent pillars: the legal front (private lawyers, public interest groups, state attorneys general), institutional integrity (election officials, government workers, civil society groups ensuring voter confidence and turnout), and a vibrant pro-democracy independent media ecosystem that keeps the public informed and counters misinformation.

Lessons

  • Fight against hopelessness: Understand that giving up hope on voting is a win for those trying to suppress it; actively participate in the democratic process.
  • Verify your voter registration: Check your registration status, ensure it's up-to-date, and understand any changed voting rules in your state.
  • Support pro-democracy media: Subscribe to and engage with independent pro-democracy news outlets and podcasts to stay informed and counter misinformation from legacy media or partisan sources.

Quotes

"

"Donald Trump wants you to be so concerned that you lose hope. And if you lose hope, he wins because then you don't vote, you don't bother participating because you think it's all futile. So, we can't let him win."

Marc Elias
"

"The president has no role. Like even even where there is a federal role, it is left entirely in the Constitution to legislation enacted by Congress."

Marc Elias
"

"I don't compromise with the Republicans because there is no middle ground between a firefighter and an arsonist and they are trying to burn down democracy."

Marc Elias

Q&A

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