‘Democracy Is at Stake’

In official Democratic Party circles, Marc Erik Elias is the go-to attorney for legal issues relating to elections, voting rights, and redistricting—on his client list are the Democratic National Committee, the Democratic Governors Association, and the Democratic Congressional and Senatorial Campaign Committees. And this has been true of Elias, who is now fifty-two, for years.

When John Kerry challenged President George W. Bush in 2004, Elias was his general counsel. Then, in the 2016 presidential contest, he was Hillary Clinton’s top attorney. Last year, he served as Kamala Harris’s lead lawyer.

In this most recent electoral cycle, Elias’s practice has been in overdrive ever since the polls closed last November 3—thanks to the Republican Party’s embrace of a postelection strategy, at the behest of its defeated president, Donald Trump, aimed at delegitimizing Joseph Biden’s win.  

In the immediate aftermath of the 2020 vote, Elias went to court some sixty-five times to protect the results; he won outright in sixty-four of those cases (the only loss was a minor challenge concerning a three-day difference in the deadline to confirm the identities of first-time voters who voted by mail in Pennsylvania). Often, Elias found himself arguing before Trump-appointed judges. And still he prevailed. 

“Elias is the lawyer many Democrats…thank for their ability to sleep at night in the days and weeks following the election,” wrote Dan Roe on Law.com earlier this year.

That may be true. But Elias himself doesn’t appear to get much rest—his work cut out for him by a welter of new Republican moves at state level to skew the democratic process in their favor: redistricting, restricting the franchise, and bad-faith local audits of ballots from 2020 election.   

Elias documents his legal adventures for the progressive election integrity organization he founded last year, Democracy Docket. We spoke twice, in early May and over the Memorial Day weekend; what follows is an edited and condensed version of our conversations.

Claudia Dreifus: The current “audit” of Maricopa County’s 2020 election ballots: Are we paying enough attention to it? Should people be more alarmed?

Marc Elias: People should be more alarmed about everything going on right now around voting and democracy.

The fake audit in Maricopa County is a manifestation of where we are, though it is not, in and of itself, the most problematic thing. It’s a spectacle. But it’s an important spectacle because it gives you some insight into how a large portion of America views the peaceful transfer of power, the consent of the governed, and the sanctity of the ballot.

It is a loud alarm that we should all be listening to.

In many news reports, the Arizona audit been treated as ridiculous, almost comic. Is it?

Isn’t that the mistake we’ve made for years now about Trumpism?

When Donald Trump spread a racist lie about President Obama not being born in the US, a lot of people just treated it as a joke. When he came into office and said and did outrageous things, people thought it was a joke. When he lost the election in 2020, and he and his legal team brought frivolous case after frivolous case, people thought it was a joke.

But then, on January 6, real people showed up to storm and ransack the Capitol. People died!

So I hope we now understand these things are not jokes. They may be farcical in the sense that someone looking for bamboo residue on ballots is. But they are motivated by a pathology that is deeply antidemocratic and concerning to anyone who cares about the future of this country.

Is it reminiscent of the same error that some in the 1930s made when they found Hitler and Mussolini ridiculous and funny? That mustache! That stupid salute!

There are a lot of mistakes being made in this era that are reminiscent of the past. One is treating these things as a joke. The other is the refusal of many, including in the media, to apply a filter of truth to what they are witnessing. They rely instead on an immoral neutrality. Too many are uncomfortable saying that what Donald Trump and his supporters said about the election is an outright lie.

They also feel uncomfortable saying that what is happening now in various states is voter suppression. I read an article just the other day in which they referred to the new laws in Florida and Georgia as “controversial.”

They’re not controversial. They’re voter suppression.

What was your first reaction on November 7, 2020, when you heard that the Associated Press had declared Joe Biden the election’s winner?

I thought the game was over.

Really?

I did. Now, did I think that Donald Trump was going to be a good loser? No. Did I think he would be gracious in defeat? No.

But did I think that he and his allies would persist in bringing frivolous postelection litigation? I didn’t anticipate that. Nor did I expect that he’d have the continued support for these efforts from the establishment of the Republican Party.

When Trump refused to do the traditional things a losing candidate does—make a concession speech, telephone the winner, wish them luck—was this a sign of what was coming?

I think so. At one point before the election, someone who was gaming out various scenarios asked me, “Well, what if he doesn’t concede?” I said, “Honestly, if, by not conceding, one could never lose an election, I’d be able to sell that to every candidate in the world. I’d bottle that. All I’d have to do is tell them “Don’t concede.’”

Concession should not be a necessary part of the equation. Our election system is structured to force a process of concession, even if the candidate themselves never concedes. What was significant wasn’t that Trump didn’t concede. It was that the process of concession and coming together didn’t happen.

What do I mean by that? After a citizen votes at their local polling place, that vote is added into tallies at the county and later at the state level. At each point, a fancy certificate is issued. Then the states send their certified results to the United States Archivist, who subsequently issues another certificate, which moves the process on to the Electoral College—where yet another certificate attests to each state’s choice. Those certificates finally go to the Congress, where they are opened on the floor and when the vice president certifies the winner—in this case, on January 6. This is the pageantry of democracy. In doing it, we force a coalescence around the winner.

I didn’t expect this process would be opposed by Republicans. I thought they knew better.

What happened? Do you think Trump planned to derail that process if he lost?

Well, sure, but it took a lot of people to go along with it.

The most concerning moment during the postelection period was not the court cases. Joe Biden had won by wide margins. The election hadn’t even been close. There was nothing the courts were going to do to affect the outcome.

The moment that really struck me came on December 7 when the state of Texas sued in the US Supreme Court to block four other states’ election results from being counted. My initial reaction was, “This is nonsense from the Republican attorney general of Texas who’s under indictment and who is seeking Trump’s favor. Maybe he wants a pardon?” I made the mistake of thinking, “Oh, this is crazy.”

But then seventeen other Republican attorneys general signed on. Uh-oh: the opposition wasn’t just Donald Trump and some crazy guy from Texas. We were now talking about a wide variety of states asking the US Supreme Court to throw out the election results of four states where Biden had prevailed.

To be clear: I didn’t worry it was going to succeed. But I thought it signaled a different level of pathology and sickness in our democracy. And then, 126 Republican members of Congress filed an amicus brief supporting the state of Texas’s position.

Why do I know that number? Because 139 House Republicans voted against certification of the election. That meant that 126 Republicans originally thought we should throw out the real election results of four states. And when, on January 6, there was a violent insurrection aimed at stopping the certification of the election, the number went up by thirteen!

That’s when I knew this is not going to go away. This was not a flaw. This is a feature of the Republican Party. And, of course, what we just saw happen with Liz Cheney shows that it is true. I now see this as something that is not going to end with Donald Trump.

So you expect these kinds of ploys to become a regular feature of elections?

Yes. I don’t see this as idiosyncratic to Donald Trump. This is a standing problem for American democracy. It is something deeper in what has become the dogma of the right.

How did you come to make election law your specialty?

My own background was that I started doing election contests and recounts in the 1990s. There was a need for specialists that was becoming apparent at that time. That’s because, in 1995, Newt Gingrich became speaker of the House. Gingrich understood better than any politician before him how to use the ethics and legal processes to eliminate opponents and get political wins.

Suddenly, you saw a kind of merger of law and politics, an explosion of cases. I found myself doing more and more election disputes because it was becoming clear that lawyers were needed for recounts and election contests in very tight races. I ended up representing several senators where the races had been very close.

But what really changed the field was Bush v. Gore in 2000. After that, recounts became even more political and much more legally contested.

Did you work on Bush v. Gore?

I didn’t. I sometimes think I may have benefited from the fact that I was not in Florida in 2000. I was actually in Washington state, helping Maria Cantwell, the current US senator, win her recount. I always say, “I won my recount in 2000.”

Since the 2000 race, society has come to view elections partially as legal disputes. Look at how much litigation there now is about the rules of voting, right? Look at how much litigation there was, and will be, over redistricting. The rules about who can vote and which ballots are counted really matter to the outcome.

Now, in Florida in 2000, that was a very close election. Let’s be honest: a very, very close election. No matter which side you were on, there were real factual issues about ballot counting. But even in that presidential election, there were maybe a dozen cases that got to court.

So what we saw in 2020 and the aftermath—more than sixty lawsuits in an election that was not close—seemed, at first, crazy. The idea that you would contest all of these states for nothing seemed implausible. The volume of those suits, I would have never predicted that.

Were you surprised that the Republicans brought such weak cases to court?

Yes, but by then the A-team of Republican lawyers were not on the field. I’m not even sure that the B-team was there.

In the lead-up to November 3, I had litigated probably a hundred cases over voting rights and the rules of elections. The Republicans had some very good lawyers on their side in those cases. Those lawyers largely disappeared in the postelection period.

I was surprised that they had any lawyers signing their names to pleadings for cases that clearly had no merit. These were cases based on mythological sea creatures and dead Venezuelan presidents. These were just not serious lawsuits.

Might the Republicans have seen more success if they had fielded better lawyers?

Well, I am very quick to say the quality of lawyering matters, but in the postelection litigation, it was not going to matter who the lawyers were. On either side. Joe Biden had clearly won.

Now, I do think a lot of the litigation we did leading up to the election made a difference for whose votes would be counted and whose wouldn’t. In contrast, the postelection litigation was the last gasp of a failed candidate abusing the legal system. There was some really atrocious lawyering on the other side in these cases.

For example?

There were, I think, three lawsuits filed on the same day that were then withdrawn three or four days later—they were misspelling the names of the courts on their cover pages; they misspelled the word “district,” as in District Court.

Didn’t Trump once dub you the Democrats’ “best election lawyer?”

I think he said “best election-stealing lawyer.” I took it as a compliment. That was in the middle of the 2018 recount in Florida: I was representing Bill Nelson, the incumbent senator. He lost to Rick Scott by just over one tenth of 1 percent.

During the days immediately following that election, as they counted absentee ballots, the margin between the two candidates was shrinking. Donald Trump said that about me then.

It is, of course, ridiculous. I was not stealing anything. I was helping oversee a team of people who were making sure that the last ballots that ought to be counted were counted. Trump wanted the counting stopped.

This was an early sign of what would become a pattern in 2020 in the presidential race. His view was that, at whatever moment he was ahead, they should stop counting ballots.

What was your reaction to hearing the recording of the January 2, 2021, phone call between Trump and the Georgia Secretary of State Brad Raffensperger?

I had two reactions. One was very big, and one was relatively small.

The big reaction was that here you had the president of the United States asking a Republican secretary of state to commit a crime. Literally, there it is: the president himself saying, in effect, Go find me a specific number of votes.

The smaller one was that Trump was complaining about a preelection settlement that I’d been the lawyer for. He had it totally wrong. Trump kept saying there had been this settlement between Governor Brian Kemp and Stacey Abrams over the rejection of absentee ballots with mismatched signatures on the return envelope. Neither Kemp nor Abrams were a party to it. My first reaction was: “He can’t even get the basic facts right.”

Why do you think Raffensperger, a Republican, would record a phone call from his president?

If I were to guess, I’d say that probably their backs were up against the wall. They may have been concerned that if they didn’t record, the White House might mischaracterize the call in a way that could jeopardize the secretary and his aides. I don’t think it was a moment of profiles in courage, more of profiles in self-preservation.

I don’t think Raffensperger is a hero. He did the thing that he was paid by the people of Georgia to do: certify an election. That’s not a heroic act. It’s the least you can do if you are the Georgia secretary of state.

In the aftermath of November 3, you argued and won in front of what were often Republican judges. Some were even Trump appointees. Based on your wins, one hears people saying, “Hey, it was okay: the courts rescued the country.” Are they being over-optimistic?

The judges did their jobs. There wasn’t, in any of those cases, a ruling outside the bounds of what a reasonable court would consider. Actually, it was fortunate for the country that a number of them were Trump judges because it instilled a greater level of confidence in those decisions. But again, these were not close calls.

Since the election, I’ve sued Iowa, Georgia, Florida, and Montana, all within hours of their passing voter suppression bills. And I will likely continue to do so, as we see other states do the same thing. But I’ve been very clear with people that we are not going to litigate ourselves out of this problem.

The courts are not the best vehicle to solve what are fundamentally cultural and political problems. We need to solve them through the political branches and in the voting arena.

So why do you work in the legal space?

My goal is, essentially, to buy our democracy time—if we can. Because, right now, we have elected leadership in many states that is engaged in deeply antidemocratic actions when they pass these voter suppression laws. At the same time, we have a Congress paralyzed by one political party’s being in the grips of an antidemocratic moment.

My goal is to fight these laws in court and win enough of these lawsuits so that sanity can return to our elected leaders and the public. Then we can move forward. Litigation is a stopgap.

Where are all these new laws coming from? Is there a central source?

There are a number of groups that seem to want to take credit for having drafted them. Mother Jones recently had a report by Ari Berman in which an executive of Heritage Action, an arm of the Heritage Foundation, said it was involved in drafting the laws, telling the governors where to sign, essentially orchestrating this.

I don’t know who the funders are, but I would expect it’s the usual suspects.

The Republicans have a fundamental problem, which is that they can’t win majorities. They don’t enjoy majority support—not in the presidential races, nor in the Congress, nor the Senate. To keep themselves in power, they are gerrymandering and trying to find a way to disenfranchise enough Black, brown, and young voters—and any other group that doesn’t vote for them—to still win.

With the Democrats holding the slimmest of leads in both the Congress and the Senate, how will these laws affect the 2022 midterm elections?

I worry that if we are not successful in protecting voting rights, it will affect who wins and who loses. This is why I do what I do.

That’s not an abstraction. The rules around elections actually determine outcomes. Which is why I’m fighting every day on this issue—it is the most important of our time.

I’m going to say something that is probably not without controversy for your readers. I’m not saying that ending the pandemic is not critically important. It is. I’m not saying we shouldn’t be worrying about the economy. We should. But I think history is going to judge us on whether or not we held onto our democracy.

When I look to 2022, I wonder: Are we going to have elections that look like what we would expect in a functioning democracy?

Do you sometimes feel like the little Dutch boy in the legend? He’s the one who sticks his finger into the dike and saves Haarlem from flooding.

I feel like that a lot. The other question is: How do I keep my passion? I don’t feel as if I have a choice. Our democracy is at stake. We’re at a time when our country is in such crisis. If you look at this moment from a historical perspective, it’s very clear what’s going on.

It’s the obligation of everyone to stand up. That’s what I’m doing.