Potential Election Legal Battles

Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good Friday morning, everyone. 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.

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. We have a very relevant guest who was already in the thick of election season legal battles, but who has agreed to give us some time today for an interview. It's Marc 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.

Marc, thanks very much for some time. Welcome to WNYC.

Marc Elias: Thank you for having me on. I am all in favor of a place of bringing sanity.

Brian Lehrer: 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. There were all these backdoor procedural claims, mostly.

Marc Elias: Yes, I think that's a really important point. There was this magical moment in federal court in Pennsylvania 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, "Mr. Giuliani, are you alleging fraud?" He pauses for a second and he says, "No." For all of the bravado that Donald Trump and his allies 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 ridiculous claims by other entities and organizations, claiming things like Hugo Chávez had rigged the voting machines even though he was dead, that there were untoward things that never panned out to be anything. 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.

Brian Lehrer: What did they do?

Marc Elias: It was a lot of smoke, and not much fire. I hate to recount the many lies they told, but as you recall, they told lies about election officials. In fact, some of the lies they told about election officials have caused Rudy Giuliani to not just be disbarred, but 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. They promoted a variety of false conspiracies, none of which panned out, none of which had 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.

Brian Lehrer: 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 Shaye Moss, mother and daughter, were passing around thumb drives of illegal votes. That was totally a lie, and he has to pay them $148 million in damages.

This week, the judge in that case ordered him, and I'm reading from the Associated Press now, to "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 Shaye Moss and Ruby Freeman." First of all, who owns two dozen luxury watches? That blows my mind. 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?

Marc Elias: I think there's good news and bad news. I do think it serves as a warning to lawyers that they are not going to get a free pass simply because they're lawyers. It's not just Rudy Giuliani, we've seen several lawyers, including him, be indicted criminally. We've seen other lawyers suffer bar sanctions. It has been, I think, slow coming, but it has been good to see 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. Donald Trump is more desperate, more unhinged than ever before. He himself has now been convicted of crimes and faces criminal sentencing. He views winning the presidency as his best ticket to avoiding those criminal consequences. He is willing to do or say anything. His rhetoric in 2020 was worse than it was in 2016. His rhetoric in 2024 recently has been far worse than it was even in 2020. 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.

That said, we're prepared. We were prepared in 2020, and we won more than 60 cases, and Donald Trump was defeated, and Joe Biden became president. I don't want people to be concerned that we're not prepared or somehow that he will succeed, because he won't. We need to be clear-eyed about what he is willing to do.

Brian Lehrer: If you're just joining us, my guest is Marc 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?

Marc Elias: Yes. The way that our system works, and has been abused by Republicans, is that states maintain a statewide voter file. 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, DMV records, or death records, or if you move out of state and another state reports that you now live there, those records. 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 going to be able to vote.

What we have seen in the last few weeks, which, as you point out, I predicted, is an effort to remove in mass form large numbers of voters from those records. We're not talking about the one off 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. 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. We call those voter challenges when they're submitted by third parties. Trying to force counties to remove these voters the last minute, again, that violates federal law. 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.

Brian Lehrer: 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. Go ahead.

Marc Elias: The way this works is they submit those tens of thousands or hundreds of thousands of names to the counties. When the counties then do the right thing, or when the state does the right thing, they will then sue and say, "You should have removed these names." There was just a lawsuit filed a couple of days ago in Nevada by a group called Pig Pen. 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 the states themselves, the Republican controlled states wanting themselves to remove names, it is an effort to kick people off the rolls at the last minute in violation of federal law. It is absolutely something that should be covered. It's something if people go to democracydocket.com, you can see we cover it a lot and there are a lot of resources around it.

Brian Lehrer: Is another thing to look out for, and 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?

Marc Elias: Yes. 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, removing voters and harassing election officials. Then the third is to target the certification process. The certification process takes place in the days after the election. This is how the unofficial election results, the results that you'll give out to your listeners the night of or the next day of the election, how those then get turned into the actual official results. Normally this is a very ministerial act. It's usually, honestly, Brian, in past years it's been very celebratory. 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.

We saw, in 2020, Donald Trump target this in a number of ways. 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. 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. The good news is they're losing. They lost their lawsuits in Georgia, and they are losing this around the country. This is a strategy that they will deploy, but it is not one that will ultimately succeed.

Brian Lehrer: 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?

Marc Elias: No, I think that that's right at the state level. If you look at the presidential swing states, you have good people running their elections, by and large, and you have Democratic governors. I don't worry so much about that. You also had Congress pass the Electoral Count Reform Act, which does really undermines the ability of there to be fake electors and those kinds of things.

I think that the place where people should focus, and it's not that I'm worried that it will succeed, but I think where they are going to target is going to be in the days following the election, the Wednesday, Thursday, Friday at the county levels where you've also seen reports about election deniers in various county offices. That is, I think, where there is an opportunity for more mischief and there'll be the need for more litigation.

Brian Lehrer: Can you name names? Are there a certain few states or even a certain few counties that you're most worried about in terms of legal mechanisms or whatever you just described, maybe call it parliamentary mechanisms to overturn the vote, bureaucratic mechanisms?

Marc Elias: Look, this is the reality of my life, is I have to worry about everywhere. I represent a large number of candidates in campaigns around the country and running for House and running for Senate, and obviously I'm helping the Harris campaign. I am paid to worry about it everywhere. I think for voters, they should have confidence that these election deniers 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 step in to certify on their behalf, or the courts will simply order the certification.

Brian Lehrer: Election cases lawyer, Marc 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?

Marc Elias: Yes, it's a very big deal. You're absolutely right, this is a common sense law that, by the way, 18 States plus the District of Columbia have. It is not an unusual policy. It is actually a common sense policy, particularly in an age in which the US Postal Service itself says that it is underfunded and its ability to transmit mail is not as fast as it once was. We've all seen instances in which the Postal Service has suffered delays. 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, why does it matter to us if it comes in the day after or the day after that? 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." Yet the Republicans have brought not just one, but a series of lawsuits in a variety of States challenging this.

One of those cases, which was a lawsuit that they filed against the state of Mississippi, not a state that you usually associate with competitive elections or being pro Democratic, but Mississippi had this law, and they're challenging that law. We're waiting on a decision from the Fifth Circuit any day now. That will be a big, big case to watch.

Brian Lehrer: Before you go, Marc, 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 8:00 PM 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. 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 to be media literate on November 5th and 6th?

Marc Elias: Sure. The first thing everyone needs to keep in mind is that Donald Trump lies about everything. There's no reason why he's going to stop lying now that simply because it's an election. Donald Trump, 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 large, large margins.

Brian Lehrer: I didn't even know that. He claims he won California and New York in 2020?

Marc Elias: 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. In fact, 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?" I suspect he'll say there weren't any. 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. 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 along the New State throughway between--

Brian Lehrer: Wait, are you saying that some of these relatively moderate Republicans who are running for re-election 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?

Marc Elias: I do. I say this as someone I was born in New York City. I lived in Long Island, I graduated high school in Rockland County and I went to college in upstate New York. 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 all vote with Donald Trump. They all support him. Not one of them will be willing to tell the truth about the outcome of the 2024 election. Almost none of them willing to tell the truth about the 2020 election.

I think we need to be prepared for who the Republicans are, not who they are telling people on television ads they are.

Brian Lehrer: There we leave it with Marc 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. He is working with the Harris campaign, one more time, that full disclosure. Thank you very much for joining us today.

Marc Elias: Thank you.

 

 

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