The following is a transcript of a conversation between election rights lawyer Marc Elias, TNR’s Win McCormack, and Carol Butler. The transcript has been edited for length and clarity.
Marc Elias: Donald Trump’s going to impose provisions [attacking voting rights] through executive orders. He issued a voting executive order last year that we were successful in striking down, and we will succeed in striking [the next] one down.… The Department of Justice right now is operating like his private law firm and is seeking to obtain confidential voter data from all 50 states, plus the District of Columbia.
Win McCormack: Oh, I thought it had stopped with Georgia and Arizona.
Marc Elias: No, no. So those are the ballots that they’re seeking from 2020. They have seized the ballots from Georgia from 2020, and they have [sued to get] the ballots from Arizona from 2020, but the Department of Justice is suing to get access, essentially, to the unredacted voter rolls in all 50 states. And they’re suing 30 of those states, and we have intervened to oppose them in all those states. And so I think that’s one of the big battles to focus on, because if you want to run a voter-turnout program, you need the voter files, but if you also want to run a voter suppression operation at scale, you need the voter files. We’re entering the season in which we will see lots of different state laws by Republican legislatures try to suppress voting rights, and we’re litigating against those. We’re going to see more efforts by the administration, perhaps, to deploy federal paramilitary like [U.S. Immigration and Customs Enforcement]. And we’ll have to be prepared to litigate against that. It’s just gonna be a knife fight from here to the end.
Carol Butler: Can I ask a question on the private voter roll data? I know that a lot of [states’ attorneys general] have been filing lawsuits. Have some A.G.s been beaten in court anywhere on this yet? Have there been any victories on that?
Elias: Seventeen states turned them over voluntarily. Thirty states and D.C. have fought [back]. In the 30 states that have fought, we have intervened to defend voters in all 30. We have won alongside the A.G.s in Oregon, California, and … Michigan. There are three states that have dismissed their claims. So we are awaiting decisions in the other states
McCormack: And is there anything in the law that actually gives [Republicans] the right to have what they want?
Elias: No. [Laughter.] They’re claiming their versions of the law that let them have access to this, but this is unprecedented, and there’s a reason why we’re 3 and 0, and soon to be 4 and 0, then 5 and 0, and then 6 and 0. Look, they are trying to bully these states in ways that you see them try to bully states in other arenas. The challenges are that the Department of Justice can literally litigate everywhere. But for every state that opposes this, we also have states like Florida, Texas, Alabama, and Mississippi that are voluntarily complying with these requests. And that’s going to be a challenge as we go forward, because we assume—everyone assumes—that where there is voter suppression, we are necessarily fighting against the federal government. But remember, most voter suppression is actually fighting against states where either the state itself or the Republican National Committee or Republicans are doing it.
McCormack: So the Republican National Committee can come in and intervene in states?
Elias: Well, the RNC runs voter suppression programs to try to prevent people from voting, and they also bring litigation to try to make voting harder. There’s a case [Watson v. Republican National Committee] that was just argued in the U.S. Supreme Court, in which the RNC sued Mississippi to try to make mail-in voting more difficult.
McCormack: Well, I heard somebody on MS NOW last night saying that, regardless of what happens with the Save America Act [a suppressive “voter ID” bill that would also give the Trump administration a federal surveillance system of voters], they have a very well-worked-out plan for doing what they want to do. Is that what you were referring to before, or is there more to what they said?
Elias: There’s more to it. What we’ve seen from Donald Trump in the past is that he starts with lies, then he increases the rhetoric behind the lies, then you see the legal process, and then when he fails in the legal process, we have violence. We are on that progression. He has lied about voting, he has now upped the rhetoric for all of the SAVE Act, which began as a proof-of-citizenship law. It’s now become a voter suppression, voter purge, ban on mail-in voting, trans-targeting law. So when he loses in court in the cases I referenced, and he’s not able to pass this law through Congress, as we’ve discussed, I think he’s going to escalate further. Ultimately we’ll see some type of violence, I fear. Whether it’s what we saw after the 2020 election or what we saw in Minneapolis with ICE agents, Donald Trump’s rhetoric never tries to take the temperature down, and he knows that if there are free and fair elections, his side will lose.
McCormack: Is it true, though, that he could send ICE in—but he couldn’t send them in bearing guns?
Elias: If he sends ICE to the polls at all, there are going to be lawsuits to try to prevent it. Just as we saw in Minneapolis, there’ll be legal efforts to try to stop it. So I don’t want anyone to lose hope. We’ll fight back.
And just to be clear, I’m not just worried about armed ICE officials at the polls. In some respects, if there were armed ICE officials at your local polling place, it probably wouldn’t prevent you from voting. But let’s just imagine a counter-hypothetical. Let’s assume that they’re not at the polling place, but rather, they are occupying all the parking lots, and they are closing off the streets. Now you’re not facing the prospect of parking and then going into a poll where there’s armed ICE agents. You’re now being told you’re gonna have to park a mile away and walk to the polls. Don’t underestimate the amount of voter suppression that they can impose simply through the chaos and contrived inconvenience. You saw that in Minneapolis. It’s not just where ICE was operating, engaging in efforts to do enforcement. It was blocking streets. It was breaking the windows of cars. It was harassing and swearing at law-abiding citizens. It was the tear gas. It was all of that—if you imagine, around Election Day, [that] would have a really big impact on voting, having nothing to do with guns at the actual polls themselves.
McCormack: I can see that. I can particularly see them trying to interfere with people getting to the polls. There was a little bit of that in Florida, in 2000, trying to prevent people from getting [to] vote.
Elias: So this is the thing. The Republican Party, as a private organization, has been running voter suppression programs for decades. What’s different is that, in addition to the RNC running voter suppression programs and their right-wing allies running voter suppression programs, we may very well have the federal government running a voter suppression program.
McCormack: We could have violence at the polls. [Trump] is willing to go that far. I’m going to write a series of columns on this. I just wrote one wherein I said that Minneapolis showed that he would back down if enough agitation were organized against him.
Elias: I think that’s true. He’s not immune from public opinion. Don’t get me wrong, no politician is immune from public opinion. The question is, though, how quickly did he back down? The thing about elections is they’re very temporal events. Generally, the period from early voting to vote counting, even in a state with a lot of early voting, is really narrow. And every day that goes by—as Carol knows from her days running Senate campaigns when I first met her—the one thing every campaign has the least of is time. You hit Election Day, and it’s over. I worry that even if public pressure is against him, it still doesn’t mean that it’s not going to create some amount of voter suppression in the meantime.
Butler: Can I ask a question? Having spent a lot of time now in Oregon using its great vote-by-mail system—say we win in the courts. Isn’t there an awful lot of other nonsense [Republicans] can get up to that interferes with vote by mail? I hate to sound like a conspiracy theorist, but I don’t even trust the post office anymore.
Elias: The truth is that every kind of voting system has its pluses and its minuses. One of the downsides with voting by mail is, obviously, it is dependent on the mail. You have a U.S. Postal Service that continues to cut back on mail service, continues to extend the delays for mail service, and as you point out, Donald Trump has, at this point, appointed not just [the] Postmaster General but others on the board of governors. That is not to say people shouldn’t vote by mail. It’s just to say that we need to go into the next few months understanding that whatever Donald Trump can weaponize, he will try to weaponize. We need to just understand that this is a feature of the era in which we live and not put our head in the sand and act like it doesn’t exist.
Butler: So, Mark, you’re going to be battling in court, and obviously anything that people can do to support you in that is a good thing. What else do all of us need to be thinking about doing? How do we best fight back?
Elias: I always say this to every audience I speak to: Obviously, there are things that lawyers can do which are unique to lawyers. There are things that elected officials can do that are unique to elected officials. There are things that philanthropy can do that are unique to philanthropy. But everyone, no matter who they are, no matter what their job, no matter how much they have or don’t have, they do have a town square that they can stand out in and speak out.
Now, some people have really big town squares. They own major media publications. Other people have smaller town squares. It may be just their social media feed, it may be their dinner table, it may be their bridge club or the bowling league they belong to, but everybody’s got some place where they can speak out and be heard. What everyone needs to do is to use that town square to call out what Donald Trump is up to and what is happening to our democracy. No Kings Day is a great opportunity for people to do that, but it is only one day out of a year. My ask for everyone is to use every opportunity you have to speak out on the issues of democracy and free and fair elections, because without free and fair elections, you’re not going to solve any other problems. You’re not going to solve the problems of climate change, the economy, reproductive health—none of those things are going to be solved if we don’t have a functioning democracy.
I think if we have free and fair elections, Democrats are going to take control of the House and the Senate, and they’ll do quite well downballot. But if Donald Trump is able to, in the darkness of the night, rig the elections through unfair districts, or suppress the vote through executive orders that go unchallenged, or make it impossible for people who have hourly jobs to be able to vote because there are long lines or because the streets are closed off, then he will have won. All of us can call that out. All of us can become ambassadors for access to voting by posting on social media, calling their friends, or texting their text chain with their college roommates. That’s the thing that I ask everyone to do.
Butler: You were talking about him doing stuff in the darkness of the night. How big a problem is it, in your mind, what’s happened to the media and media coverage?
Elias: I could talk endlessly about the failures of the corporate-owned legacy media. They have completely normalized what he has done in two respects. When he says Republicans “should take over” voting, that should be front-page news. That is not just a normal thing to say. It violates his oath of office; it violates the Constitution. If it was happening in any other country, it would receive the treatment by our media that it should, and instead, it largely gets treated as, “Well, Donald Trump said this, and Democrats say that,” and so forth. The second thing is that they just don’t cover democracy issues and the threats that are posed to our electoral system in the way in which they cover other items that are much less important but which don’t offend the people who are buying CBS News and now CNN and others like that. You cannot be paying tens of millions of dollars to settle bullshit lawsuits against Donald Trump and also have people believe that you’re actually standing up for democracy against him.