Marc Elias hears the question constantly: “Is Donald Trump going to try to cancel, or move, the election?” He has an answer ready: No, he can’t. It’s some of the other nightmare scenarios he’s worried about.
Elias, 51, leads a sprawling team of attorneys who, together with official Democratic Party committees, super-PACs, and progressive organizations, have been appearing remotely in court hearings around the country, and their litigation list keeps growing. By last count, they have at least one active case in 18 states, including each of the six core swing states.
A handful of Democrats’ nightmare scenarios seem close to inevitable: With a massive influx of mail-in votes, we almost certainly won’t know the full results of the election on the night of November 3, and it’s not hard to imagine Trump claiming victory long before all the votes are counted in Pennsylvania or Florida or Arizona. Meanwhile, some liberals see the administration’s recent hostility toward the Postal Service as an attempt to drastically reduce its funding just when postal workers need to be conveying ballots around the country. You can consider that possibility in case the effective collapse of Georgia’s voting system on June 9, which left voters stranded in line for hours, wasn’t enough of a wake-up call.
Then, of course, there are the schemes that involve more active malevolence. “Trump’s reelection strategy appears to depend on cutting off channels for voters to have polling places and then sending operatives and right-wingers to intimidate and suppress voters in person,” Ben Wikler, the chairman of Wisconsin’s Democratic Party, told me a few days after Secret Service, U.S. Park Police, and military police cleared peaceful protesters from in front of the White House using tear gas and rubber bullets for a Trump photo op. “The events of the last week make clear that Trump is willing to use the full machinery of the United States government — military, law enforcement — to project strength and hold onto power.”
Elias, talking into an iPad from his home in suburban Virginia with a lighting setup good enough for beaming into courtrooms and MSNBC hits, is working on it. We’re amid the massive protests following the murder of George Floyd, and I greet him by asking how this momentous week has been for him. Not only is it a “profoundly sad” and “difficult” time, he says; it’s given him a dreadful new urgency. “We knew, coming into the 2020 election cycle, that Donald Trump had a particular disdain for the voting process,” he explains, pointing to the bogus voter-fraud commission the president set up early in his term. But matters had been getting worse. Trump had been stepping up his attacks on vote-by-mail laws, tweeting that a largely mail-in election would “lead to massive fraud and abuse.”
“All that existed before COVID,” Elias says. “And we saw before COVID a very fragile and rickety election system made up of a patchwork of local election officials, volunteers — poll workers and the like — struggling under the weight of hostility that the Republican Party and Republican legislatures and Republican secretaries of state were showing toward voting,” he continues, bringing up the pre-pandemic primary in GOP-led Texas, where voters were forced to wait in laughably long lines. “And then COVID became a pandemic in the United States, and layered on top of that base layer a whole host of other problems, [like] even fewer in-person voting locations” — as in Milwaukee, where local officials opened only five polling sites instead of the usual 180 for Wisconsin’s April primary, resulting in more than 70 people later testing positive for the coronavirus. “And so that,” he exhales, sinking back into his chair, “is what the last week has been like.”
When Elias talks like this, Democratic leaders listen. For years now, he’s been the election attorney for most Democratic senators and many House members, the national party and its various committees, and a handful of supportive super-PACs and outside progressive groups. He was the general counsel for both John Kerry’s and Hillary Clinton’s presidential campaigns (he’s the lawyer who hired Fusion GPS, which ultimately came up with the infamous “dossier” researching Trump in 2016). This level of integration with the Democratic power structure has earned Elias suspicion from some other lawyers and good-government advocates, but it’s also enough that the New York Times has described his reputation as “arguably one of the most influential of unelected Democrats in Washington.”
Elias’s main worry now is making sure vote-by-mail procedures are as robust as possible, considering how many people will try voting absentee this fall and the fact that mail-in ballots are rejected more often than in-person ones. Recent studies show these rejections tend to be focused on young and minority voters, who lean toward Democrats. (Republicans “don’t want Black and brown people to vote, because when Black and brown people vote at scale, Democrats win and Republicans lose,” says DNC chairman Tom Perez. “It’s no surprise that voter suppression on steroids is a big part of the GOP playbook.”)
The lawyer is leading a range of new lawsuits focused on what he calls his four “pillars” of fair mail-in elections: States should make ballots’ postage free or prepaid, they should count votes postmarked before Election Day, they should reform signature-matching laws to make it more difficult for election workers to subjectively reject ballots, and they should allow community groups to help collect and deliver ballots that have already been filled out and sealed.
“If you imagine the voting system as a tree,” Elias says, “it’s like, first the winds were blowing against it. Then the rain was blowing against it. Then Donald Trump and the Republicans came up with a saw and started hacking against the tree. And now it’s started hailing!” He looks satisfied with the simile. “Right now, I think my job is to mitigate against the worst aspects of what the Republicans are doing to voting.”
I point out that some Democrats and liberal writers had recently been whispering that there was at least some reason for calm, since the six likeliest battleground states already have systems in place where anyone can theoretically vote absentee, and for the first time in our talk, Elias looks genuinely frustrated. “They’re wrong” to be complacent, he says. “We have an epidemic in this country of uncounted ballots, and it’s a silent epidemic, because people don’t know their ballots, oftentimes, aren’t counted. And so we are creating the illusion of democracy for hundreds of thousands — or millions! — of Americans by giving them a ballot, having them mail it in — maybe they wear a sticker, maybe they don’t — but in reality their ballot doesn’t count.”
The mail-in question is only one part of Elias’s present concern. This will be the first election in decades free of a federal court’s consent decree meant to prevent the Republican National Committee from challenging voter qualifications. In 1981, the committee had been accused of discouraging nonwhite Americans from voting, including by positioning armed off-duty police officers at polling stations. The RNC and the Trump campaign have now set aside $20 million for their legal fights — they are prepared to sue Democrats “into oblivion,” the RNC’s chief of staff told Politico in May — and they’ve started recruiting up to 50,000 volunteers to monitor polls and challenge ballots. “And that keeps me up, also. It’s one thing to play Whack-a-Mole with Republican legislatures passing bad laws,” he says, but it’s something entirely different to fight the entire party’s infrastructure all at once.
So, I ask, when will those lawsuits start flying? He and his team have already filed more voting-rights cases in 2020 than 2015, 2016, 2017, and 2018 combined. “That’s later this summer,” he says.
*This article appears in the June 22, 2020, issue of New York Magazine. Subscribe Now!
