David Remnick: One constant of Donald Trump's career in politics has been his belief that voting is rigged against him. He finds fraud even in some elections that he wins, like in 2016, when he said that Hillary Clinton got the popular vote only because of people he called illegals casting ballots. In 2020, the conspiracy theory of the stolen election led to the attempted insurrection of January 6th, and that conspiracy theory remains an article of faith for many Republicans.

After his comeback victory in 2024, Trump is once again sowing doubt. This time, though, he has the absolute loyalty of the executive branch to pursue his every suspicion. He's called for an end to mail-in voting everywhere. Meanwhile, Pam Bondi's Justice Department has demanded sensitive voter information from at least 34 states so far. Now, under the Constitution, it's the states that have the authority to conduct elections, but the states are now coming under pressure to do exactly what the executive branch tells them.

Now, how big a problem is all of this? Do we really have to worry now about having free and fair elections in America? I brought those questions the other day to Marc Elias. Marc Elias is a top election lawyer for the Democrats, whose firm fought and won nearly every case that Trump and his allies brought against the 2020 election.

Marc, we're going to be talking a great deal about fair and unfair elections, a subject that has a lot to do with the deep divisions in our political culture. To be more precise about it, we're talking in the wake of a horrific and tragic assassination of Charlie Kirk. This is a tremendously tragic and really consequential event, and we're still learning more about the alleged killer. What I'd like to know is how you think this political murder and the political violence that has spiked so much in recent years, how does that potentially affect the prospect of our political culture and any future election, including the midterms that are a year off?

Marc Elias: Look, the killing of Charlie Kirk is a personal tragedy for his family and friends. It is a tragedy for free speech and a tragedy for people who want to engage in public dialogue, whether you agree with them or disagree with them. It is also a tragedy for our politics, because what it does is it further perpetuates the idea that violence is going to be part of the equation when we have people who we don't agree with.

The assassination attempts on Donald Trump were horrific. The targeting of Josh Shapiro was horrific. The killings in Minnesota were horrific. It is heartbreaking to see that it's going on, but I fear that we are not at the end of this, that the fever won't break. Now, I don't know what causes the fever to break, but I fear that we're not any place near the fever breaking, and that makes it harder to have free and fair elections because it makes it harder for there to be the full expression of ideas.

David Remnick: It says something that quite a few Americans are afraid of not having elections in 2026 at all. Even if that's not the case, what do you make of the vibe that's out there that there are people that feel that normal midterms might not be possible?

Marc Elias: We are going to have midterm elections. The good news or the bad news is dictators love elections. Vladimir Putin loves him an election. Now, they may not be a free and fair election, but they will be an election. I don't think that anyone needs to worry that there will be elections canceled. The President doesn't have that power. I don't think he'd want to. What Donald Trump wants to do is try to rig the outcome of the elections. That gets to the question of how free and fair they are. I am quite worried there.

Donald Trump posted on social media, and it was picked up widely, that he wants to ban mail-in voting. It was picked up widely that he wants to ban some unspecified voting machines. If you read down further into that social media post, what he says is that states are the agents of the federal government in the tabulation and the counting of ballots, and that he, the president, speaks for the federal government, which, if you just collapse that into a coherent thought, is he believes that he controls what votes count and what the tabulation of those votes shows.

Too many people, David, told us, "Take Donald Trump seriously, but not literally." I think that that is part of what led us to January 6th, that people didn't take him literally. I take him literally when he says that's what he wants. We need to be vigilant, and we need to be fighting every single day to prevent that from happening.

David Remnick: We know that Vladimir Putin agrees with Donald Trump on mail-in voting. What is his case that mail-in voting is somehow unfair or illegitimate, and what is your argument for it?

Marc Elias: Donald Trump's argument against mail-in voting is that more Democrats vote by mail than Republicans.

David Remnick: There's no other basis for it?

Marc Elias: There is no other basis for it. The fact is, Republicans in many states have enacted mail-in voting rules, including, for example, like in Utah. Florida, Republicans made widespread use of mail-in voting. Arizona has almost universal mail-in voting. Donald Trump got it in his head in 2020 during the pandemic, when there was more concern among Democrats than Republicans, and we could have a whole discussion about vaccines and all that, but there was more concern by Democrats and Republicans about going in crowded places in person. More Democrats started adopting mail-in voting. He has been against it ever since, because that preference for mail-in voting remains more Democrat than Republican.

David Remnick: How serious is the danger that the United States will not have free and fair elections, to use the key term, in this upcoming 2026 midterm?

Marc Elias: Free and fair elections are a continuum. We have never had perfectly free and fair elections in this country. No one has had perfectly free and fair elections. We have strived over time to make them more free, to make them more fair, to make them more accurate, and more reflective of the electorate. What Donald Trump is trying to do is to turn that back, but to turn it back in a way that is highly partisan. That is, to not turn it back for everyone, but rather to target voters who he think won't support Republican candidates.

How worried am I that we will not have free and fair elections in 2026? I am very worried that we could have elections that do not reflect the desires and the voting preferences of everyone who wishes they could vote and have their vote tabulated accurately. That may sound very lawyerly and very technical, but I think it would be a historic rollback. Because in recent decades, we may have a problem of people wanting to vote or registering to vote, but the electorate is broadly available to everyone who wishes to cast a ballot, and those votes have been, with rare exception, accurately tabulated.

I think in 2026, there is a possibility that whole categories of people who wish to vote won't be able to, and that the ultimate tabulation and counting of votes won't be accurate. It is the job of me and other lawyers and democracy advocates to make sure that does not come to pass. I am quite worried that that will be the case.

David Remnick: Well, then, let's break down the statistics and the specifics. The Department of Justice has been asking states, and I think there's over 30 states at this point, they're asking for detailed voter roll data. What do they want it for? Does the federal government even have the right to that information?

Marc Elias: You asked two very important questions. Take the second part first. The fact is that under our Constitution, states administer elections, not the federal government. The Constitution gives the states the power to set the time, place, and manner of elections, subject only to congressional enactment. It gives the president no power. It gives the executive branch no particular power over elections. That is point one.

To your broader question of why do they want it? Why does the Department of Justice want a list of every single American who has ever registered to vote and all of their private information, Social Security numbers, signatures, whether they voted, whether they're a registered Democrat, whether a registered Republican, whether they have voted in Democratic primaries or Republican primaries in many states, what their race is in every state, what their gender is, what their age is. Why do they want all that data, and what do we think they're using it for?

Well, I'm pretty sure they're not doing it to help the American people vote. They are doing it, I think, for three reasons. Number one, they want to use it in some instances for unrelated purposes, for example, to give it to DHS or to other agencies where they think it will help complete a profile to achieve some other policy goal of the administration.

David Remnick: Such as?

Marc Elias: For example, for immigration, for finding people, for detecting who is a citizen or not. I think that's one reason. I think there are two other really important reasons. I think that they are going to use that information to spread wildly inaccurate disinformation and misinformation about lawfulness of voting. They are going to use it to spread a sense that illegal votes have been cast in the past, that they are being cast in the future, that lawful US citizens are having their vote diluted through unlawful means.

It's not like we haven't seen this playbook before. We saw Ron DeSantis, as you recall, execute his task force on voting or integrity. We've seen governors do that. This would be a different thing if the Department of Justice decides to get into the business of spreading lies about whether people are lawfully voting or not. Then the third thing, which is the one that I'm principally worried about, is that they're going to use it in the post-election as a justification to say that the results of the election that were certified by states are inaccurate.

Now, remember in 2020, Donald Trump had a meeting in the Oval Office in which it was floated that he would send in federal agents to seize voting equipment from the state of Georgia. What stopped him were White House employees and people from the Department of Justice. I'd ask you, David, who among the White House and who in Pam Bondi's Department of Justice do you think is going to be the one that stands up and says, "No, Mr. President, not only can't you do it legally, but if you do it, we will all resign en masse."

David Remnick: Can the federal government actually purge state voter rolls?

Marc Elias: No, they can't purge state voter rolls. Only states can purge their own voter rolls and then under very, very narrow restrictions as provided by federal law and state law. What they can say, David, and this is what I worry about, is Pam Bondi announces that there are, I don't know, make up a number, 1.3 million illegal votes in the state of New York, 1.3 million, and that if those votes had not been cast, if those 1.3 million people had not voted, Donald Trump, in fact, would have won the election in 2024 in New York.

Therefore, we can't have this again. Now, if this sounds fanciful to people, we heard this from him before. We heard him say this after 2020, that he thought he won California except for illegal votes. He, in the course of the 2024 election campaign, said he thought he actually won New Jersey. He thought he actually won Minnesota. He thought he actually won New York in 2020. The misuse of this voter data that's being collected, I believe, is going to be to cast doubt on whether or not states are accurately tabulating ballots and to try to then argue that the tabulations of this White House should take the place of the tabulations being submitted by the counties and states.

David Remnick: What about the claim that we hear from the administration about undocumented people voting? What is the reality here? What's known to legal experts about this?

Marc Elias: There are virtually no instances of non-citizens voting in US elections. I'm not even talking about undocumented. I am including green card holders, I'm including visa holders. There is almost no evidence of any non-citizen voting in this country. The instances where it happens are almost entirely by mistakes. They are by mistakes. There are vanishingly few, but some instances of non-citizens being registered to vote. Understand, the fact that they are registered to vote does not mean they then vote.

Again, it is very infrequent; it is exceedingly rare. I remember years ago when Republicans were trying to make this argument, they'd say, "Look, there's an example of Mickey Mouse having registered to vote in Florida." What I'd say is, first of all, you found one instance of it. Number two, Mickey Mouse never voted. Are there instances where the voter rolls are dirty where someone's died. Yes, but that doesn't mean the dead person voted. It just means that some number of voters die.

Are there the rare instances in which someone at a mall gets stopped by someone registering people to vote and they fill out the form and they don't realize that they're a non citizen, they weren't eligible, but then they don't vote? This is entirely not a problem. This is entirely a made-up problem by Donald Trump and the Republicans to have an excuse to disenfranchise millions of Americans. Millions of Americans.

David Remnick: Recently, National Public Radio reported that the administration may withhold millions of dollars in DHS grants for election security if states fail to adopt their voting policies. The Secretary of State in Maine, Shenna Bellows, told NPR this, "The Department of Homeland Security is trying to backdoor changes to our election laws." Now, Marc, what are the steps that the administration wants states to take, and how are those states reacting to these?"

Marc Elias: We don't know the full scale. What we know is they've issued their first executive order already, which by the way, my law firm and I sued them on behalf of the Democratic Party and won an injunction against the first elements of it. They have threatened a new executive order that, if you believe what Donald Trump is saying would be quite sweeping. It would require photo ID laws in all 50 states. It would require states to ban all mail-in voting, which by the way, would shut down voting in entire states. There are entire states that only vote by mail, and lots of states that have it as their predominant method. It would ban or decertify certain voting equipment.

Now, he's a little vague on what the voting equipment part of this is. I suspect that someone in the White House right now, working perhaps for Stephen Miller, is figuring out what voting equipment is used in Democratic cities and not used in more rural areas, and that will be the equipment that is on that list.

David Remnick: Some of these moves aren't being done in the courts; they're coming through executive orders. Can you explain what legal weight an executive order has and what it might have on election processes?

Marc Elias: This is one of the great information victories of Donald Trump's administration, because Donald Trump has turned what was once a press release or a tweet into carrying a lot more weight than it really deserves. An executive order doesn't bind Congress. An executive order doesn't bind the judiciary. An executive order doesn't bind states. It is simply the boss. It's like getting a memo from your boss saying, "The policy of this company is X." That's all an executive order is. He has managed to elevate all manner of, really, press releases, with scare quotes, into executive orders by going through the theater of them. In the area of elections, the president--

David Remnick: You're not suggesting this is all theater.

Marc Elias: I'm suggesting that in the area of elections, the president has no constitutional authority. The entire constitutional authority for running federal elections rests with the states.

David Remnick: The effort is not institutional; the effort is more propagandistic and persuasion?

Marc Elias: I think it is institutional in that he has control over the Department of Justice. I think that is probably the piece of this equation that I focus on more perhaps than others, is that we are used to him controlling DHS and DHS funding. We are not used to a president controlling who gets criminally investigated.

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David Remnick: I'm speaking with the lawyer Marc Elias, and we'll continue in a moment. This is The New Yorker Radio Hour.

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David Remnick: This is The New Yorker Radio Hour. I'm David Remnick, and I'm speaking today with Marc Elias. Elias has practiced election law for a very long time, and the ascendance of Donald Trump on the political stage has kept him more than busy. In 2020, Elias and his colleagues fought 64 cases brought by Republicans contesting the election.

Once Trump made it back to the White House, he singled out Marc Elias in a presidential memo attacking attorneys. In a speech, he called Elias a radical, part of the cabal who, I'll quote, "Did everything within their power to prevent me from becoming the president." I spoke with Marc Elias about a series of moves from the Trump administration to make voting that much harder. Moves that have many people very concerned about the security of our elections. We'll continue our conversation now.

Let's get into some specifics about what might have real impact on 2026. Can you explain what's been happening in Texas lately? You've described it as re-gerrymandering. Gerrymandering is never a fair-minded or even-handed attempt. It's always, in reality, a political attempt. Barack Obama, as I recall, in his state Senate seat, was the result of a gerrymandering that nicely snaked from Hyde Park up to the north side and got his constituencies in rather nicely. Gerrymandering has been used for all kinds of racial purposes in various states over time. It's not a pretty history. Why is this distinctly different?

Marc Elias: Right. The reason why it's different is because they are now re-gerrymandering the map that was gerrymandered. In other words, it was gerrymandered in 2021. It is now 2025, and they've decided that because they can, because they have the political power, they are going to read gerrymander. David, let's just play this out, how this works. If they are allowed to do this, then every state where there is a complete control of government by one party will simply redraw the maps every two years. I mean, like after every election. Because after every election, you get some greater insight into how a district is trending, how a population is trending.

You will literally just live in a perpetual state of gerrymandering because states will constantly be tweaking and refining their maps to make them more voter-proof. That is what is so unique here. Also, the way in which maps can be drawn now, using artificial intelligence, you can create districts that will look less like gerrymanders but be more gerrymandered. You will have districts that will look narrower in margin. They'll look competitive, but are actually not competitive at all.

David Remnick: You know what's going to happen next. In response, California and other blue states are trying to gerrymander their own districts to add Democratic seats. What will it mean for our country and our politics if both red and blue states are heavily gerrymandered or re-gerrymandered, in your term, in this way? Where does the madness end?

Marc Elias: Look, I am 100% in favor of Democrats doing what they're doing in California. In fact, before Gavin Newsom announced what he was doing, I came out publicly and said Democrats should gerrymander nine seats out of California, which would mean there'd be no Republicans left in the delegation. I also think Democrats should be doing that in New York and Virginia, assuming there's a Democratic governor, and New Jersey and Colorado and Oregon and Washington and Illinois. If I've missed any. David, you could assume that I mean that state as well.

The reason why is that the only way we're going to get out of this mess, the only way we are going to de-escalate, is if Republican members of Congress feel this personally. Perhaps we could have headed off what we saw in Texas if a bunch of Republicans in New York and a bunch of Republicans in California had themselves lobbied the Republicans in Texas not to do this. It's all well and good that Democrats told Greg Abbott, "Don't do this," but where was Mike Lawler in the state of New York telling them, "Don't do this"? I do worry, David, at the end of the day, if there is no disincentive structure for Republicans to jump off this path, that it just continues.

David Remnick: If things go badly for the Republicans in 2026, what do you expect to see?

Marc Elias: I expect that Republicans will refuse to concede elections that they clearly lost, they will contest elections they clearly lost, and we will see an effort by the Trump administration to try to overturn the results of free and fair elections. We saw some of that, by the way, in 2022. In 2022, Cochise County, Arizona, refused to certify the results of that state's elections. My law firm and I sued them, and ultimately, they were forced to certify.

We saw some of that in 2022 in Pennsylvania. We didn't see it in 2024 because Donald Trump won, and he was not going to abide by allowing anyone to do anything else. In 2026, we are going to see the Trump administration claim that there was fraud, and we're going to see Republican candidates all over the ballot, even in preposterous circumstances where they lost by 10 percentage points, they're going to say that they didn't.

David Remnick: In 2020, there were people around Trump in his moment of election denial to keep him in check. Bill Barr, who you're probably not a great fan of in general, as an attorney general, was one of those people. He upheld the 2020 election results. Now we have Pam Bondi. What is there to keep Donald Trump in check now on these issues? Is it the Supreme Court that you're depending on? If you're depending on the Supreme Court, how much confidence do you have in it?

Marc Elias: I am counting on state and local election officials and the courts. I'll be candid with you, David, each of those have become weakened over the course of the last five years. The election officials in 2020 who stood up to Donald Trump, a lot of them were vilified. You reported on the hate and the vitriol aimed at a number of them. A lot of good people have left that field. A lot of good election officials are no longer in those positions. A lot of election deniers have moved into those positions. It is still the first line of defense. The first line of defense is still that we have a highly decentralized system of voting in this country, and that they are responsible for counting the ballots in the first instance for certification and the like.

The second, though, as you point out, are the courts. The federal and state courts, in the aftermath of the 2020 election, when I was representing President Biden in the Democratic Party, almost without exception, ruled against Donald Trump. Democratic-appointed judges, Republican-appointed judges, state courts, federal courts, state supreme courts, trial courts. It was a resounding resistance to the attack on democracy.

Since then, in some ways, the federal courts have gotten " better." There are more judges appointed by Joe Biden. There does seem to be a feeling in the last few months that the courts want to pick at best, at the best, there is a feeling that the courts want to pick their battles, and they don't want a confrontation with him over everything. At worst, that actually jurisprudentially, they are more willing to let him do what he wants. It's either they agree with him or maybe they disagree with him, but they're picking their battles.

David Remnick: When you read the opinions, dissents, tea leaves, and interviews of key members of the Supreme Court, Amy Coney Barrett, John Roberts, what degree of confidence or despondency do you have when it comes to these issues?

Marc Elias: Let me start by offering two quick caveats. The first is, most cases don't get decided by the US Supreme Court. Everyone needs to just keep in mind that most election cases get decided by state courts. Most election cases that get decided in federal court get decided by lower federal courts. The Supreme Court takes relatively few. Bush v. Gore always stands out to us, precisely because it was the exception to the rule. Unlike other areas like immigration, like DOGE, like federal agency closures, when it comes to election litigation, the Supreme Court does not tend to get as involved. That's caveat number one.

Caveat number two is that we have been winning election cases before the Supreme Court. The fact is, the Alabama map, which went to the Supreme Court, where people thought we would lose, we won. As a result, right now, there are two Black opportunity districts rather than one. The independent state legislature case, the redistricting case out of North Carolina, that people thought would be the end of state court review of federal election matters. The conservative surprised Republicans there, and we won. So far, we've held our own there. Certainly, as you say, if you read the tea leaves, they're quite ominous.

David Remnick: Now, I want to ask you about a point of potential vulnerability that you might have. According to The Washington Post, in April 2016, you, as a lawyer, hired Fusion GPS on behalf of the Democratic National Committee and the Clinton campaign to come up with the research that became what we know as the Steele dossier. Looking back on that, what do you think of the Steele dossier, and does it make you, as an opponent to the Trump administration, more vulnerable?

Marc Elias: First of all, this has been widely reported. In fact, I was a trial witness in the Durham investigation in which he brought a series of prosecutions. I was called as one of his witnesses. That then led to the acquittal of another lawyer. The fact is that part of my job in the 2016 election was to represent the Clinton campaign by understanding what kinds of claims and facts and counterclaims might be brought by campaigns. I make no apology for that.

I collected the information that I thought would be useful and treated it as I thought it should be treated. It is worth noting that the Steele dossier did not become the Steele dossier until after Hillary Clinton had lost the election. There was never an allegation that I actually took this information and did anything with it other than factored into my own legal analysis.

David Remnick: What do you think of the contents of the Steele dossier?

Marc Elias: I don't really think about it much one way or the other.

David Remnick: Why?

Marc Elias: Look, I spent a good deal of time in the summer of 2016, which is the relevant time period, dealing with the fact that the Russian Federation had hacked into the Democratic National Committee and had exfiltrated large numbers of files, and that a number of those were then weaponized into the public. I spent a lot of time that summer worrying about the fact that a number of people close to the Trump campaign seemed to have unusual ties and affinities to the Russian Federation.

I spent a lot of time that summer worrying about the fact that Donald Trump seemed himself to be suggesting that the exfiltration of files that were stolen by the Russian government should be made public. There was a lot of legal work to do around that. In the course of that, I was told a lot of things by a lot of people. I gathered a lot of information by a lot of people, some from more verified sources, some from less verified sources. I think what I make of all of it is that, as I understand it, the Russian Federation was interested in sabotaging the electoral process.

David Remnick: I understand that. The Steele dossier had details in it, and I think we know what we're talking about, that were meant to imply that the Russians had something personally, personally on Donald Trump about his behavior, his businesses, even sexual behavior, and these were shopped around to reporters a lot.

Marc Elias: I don't think anyone said I have shopped them around to reporters.

David Remnick: By secondhand. I mean, it was put into the hands of reporters, and it got around. Sooner or later, it broke on BuzzFeed. You know the whole story. This clearly, clearly has animated Donald Trump's animus toward you, the Elias Law Group, as being "deeply involved in the creation of a false dossier by a foreign national designed to provide a fraudulent basis for," and so on and so forth. In other words, there is real animus toward you by the President and his circle. Is it fair or unfair?

Marc Elias: I believe that the animus that Donald Trump has towards me stems largely from election results. The first time that Donald Trump, I think, ever said my name was in connection with the 2018 post-election effort in Florida, when he called me the Democratic Party's best election-stealing lawyer. The next times I remember him talking about me were in the aftermath of the 2020 election, when he and his team were upset that my legal team and I were beating him in court.

It is true that more recently, I think he has mentioned my relationship with the Clinton campaign and the research efforts there. When Lou Dobbs told Stephen Miller to pay me half a billion dollars to stop beating them in court, I don't think it was about that. I think it was about the election litigation. I know it. When Steve Bannon said that I am evil, I think he's actually talking about my work as a lawyer in beating them in court. I think that is more likely the source of their animus towards me than anything else.

David Remnick: Finally, Marc, not that the status quo ante was perfect prior to the Trump era, as you said, both democracy and free and fair elections are a process rather than a final destination. How does this era, which is so unusual, to use the most modest adjective possible, how does this end?

Marc Elias: I don't think we know. I think that one of the hard things for all of us right now is the uncertainty, not just on how it ends, but how it could end. If you ask me to paint what the best-case scenario is, it is still not a rosy scenario. I think that the mistake, and I'll admit to this, I think one of the mistakes that I made, that I think a lot of people made, is that we thought this era ended on January 7th, 2021. We thought that, effectively, the fever had broken, that the Republican Party would pivot back to a party that is fighting over giving tax breaks to wealthy people, but not a movement that is fighting over whether [crosstalk]--

David Remnick: That magically things would return to the Mitt Romney era.

Marc Elias: Correct. I think that that is not true. One of the most insightful people about this was I did an interview with Sarah Longwell on my podcast, on my own podcast, and she said to me, she's like, "Marc, there's no constituency in the Republican Party for that." It's not just that that isn't the dominant theme; that isn't even what Republican voters want right now.

Let's say for a second that Democrats win the 2026 midterms and they sweep control of Congress, and, in fact, my concerns don't come to fruition, that the elections are smooth and easy. Let's even assume that Donald Trump then announces he's not running for reelection illegally and constitutionally for a third term in 2028 and that a Democratic president is elected then in 2028. It still doesn't seem like the fundamental framework of the modern Republican Party will be anything other than it is right now. Now, who knows? That could change. It's changed before. Maybe we return to normalcy.

What I say is that the future of democracy in this country does not lie in the hands of lawyers. We, at best, are buying time for democracy. We win a case here, we win a case there, and we buy time for one more election. The future of democracy does not rest in the hands of the Democratic Party, which is why I answered the question I did earlier about Congress.

Whether we're going to have a future as a thriving, functioning liberal democracy, unfortunately, rests in the hands of Republicans and whether or not they are willing to come back to that table and be part of that equation. Right now, there is not really any sign that there is a structure that is encouraging them to do that or a willingness that they do it.

David Remnick: Marc Elias, thanks so much.

Marc Elias: Thank you.

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David Remnick: Marc Elias runs the Elias Law Group, and he founded the election news site Democracy Docket.

 

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