Six months out from the election, and a few issues are converging. Senator Claire McCaskill and former White House Communications Director Jennifer Palmieri drill down on what’s working and what President Biden needs to focus on around a few key issues like immigration, the war in Gaza and reproductive rights. And after Senator Tim Scott tied himself in knots to avoid saying he’d accept the 2024 election results, it’s a good time to check in with elections lawyer Marc Elias about coming legal shenanigans. Claire and Marc highlight lawsuits brought by the RNC that aim to sow doubt in election integrity ahead of the fall, and how to stand up to right wing vigilantism at the ballot box.
Note: This is a rough transcript — please excuse any typos.
Jen Palmieri: Hello, welcome to “How to Win 2024.” It’s Thursday, May 9th. I’m Jennifer Palmieri and I’m here with my co-host Claire McCaskill. Hi, Claire.
Claire McCaskill: Hi. How are you today?
Jen Palmieri: I just feel like a lot’s happened and I just talked to you, I think, yesterday. The topic for the podcast is changing a number of times this week because there’s been multiple developments, including the president’s big interview.
Claire McCaskill: Yeah, that damn news gets in the way every time. All best plans, that’s why it’s good that we usually talk from the seat of our pants, so that we can change topics on a whim. So, we’ll do a little bit of that today. We’ll do a little freewheeling.
Jen Palmieri: Yes, we will. We will. We will. But it takes decades of experience to have those kinds of pants that you can fly by the seat of, and we got them.
So, we are now six months out from the election and you know, I love that part because I feel like it just rolls. When you’re six months out, I mean it’ll be a slog but it’s all real. It’s really happening.
And a few issues are converging. Biden condemned surging anti-Semitism in his speech this week at Holocaust Memorial. He had a pretty dramatic proclamation last night in his CNN interview. And his administration, they had announced earlier in the week, they took the bold step of withholding weapons to Israel, as they hope to close in on a ceasefire deal.
Claire McCaskill: And meanwhile, Mike Johnson with the help of Hakeem Jeffries held onto the speakership. But I got to tell you, Jen, everybody who thinks Marjorie Taylor Greene was embarrassed or this was a lose for her.
Jen Palmieri: Oh.
Claire McCaskill: They don’t understand how politics works today. That was a win for her because she’s now did her performative, you know, I have a feeling that there is some kind of mean girl fight behind the scenes between her and that ridiculous Lauren Boebert. And I think she was pissed off that Boebert got all that attention when she took out McCarthy and she decided she needed to reclaim —
Jen Palmieri: Oh.
Claire McCaskill: — the title of, I am the biggest attention hog —
Jen Palmieri: Yeah.
Claire McCaskill: — in Congress. I am the one who can get the cameras. I’m the one who can get —
Jen Palmieri: Yeah.
Claire McCaskill: — the viral moments. I’m the one who can raise all the low dollar money. I can be the queen of mean not you Lauren Boebert. Sit down. And I think she did by doing that yesterday, which means she’ll raise a lot of money and people need to understand that the majority of the Republican Party now does not wanna solve problems. They just want to disrupt government. And she was a vehicle for that. So yeah, Mike Johnson held on, but Marjorie Taylor Greene made the point she wanted to make.
Jen Palmieri: Yeah and with the people outside of D.C., right, that’s who she cares about. She doesn’t —
Claire McCaskill: Yeah.
Jen Palmieri: You know, I think there was a moment where I think she had more sway over her colleagues in Congress than she does now. I’ve worked in documentary films and I was like, oh, the documentary I would make would be called Motion to Table: The Marjorie Taylor Greene Story.
Claire McCaskill: Good stuff.
Jen Palmieri: Like that is ultimately what stopped her was the motion to table where her colleagues really did vote against her because it wasn’t just Dems.
And even as Stormy Daniels testified this week in Trump’s New York criminal trial, there is no slowing down his really dignified, veepstakes process. We’ll review the contenders, mad scramble to show their fealty as one possible running mate cannot agree to simply accept the results of this false election, despite being asked three times in a row on national TV right here on NBC networks.
Claire McCaskill: And knowing, as we do, that this is gonna be a really close election. And knowing that it’s gonna come down to a handful of states and probably tens of thousands of votes rather than a hundred thousand votes, we thought, both of us did, and all the folks that work on this podcast thought it was important for us to check in with Marc Elias.
So, we are going to have him in depth today to talk about the litigation that’s ongoing and the preparations for the fall and what will happen when these elections are close. What is he anticipating? You know because we know if Trump loses, which I believe he will, that it’s gonna be another well, I’ll put it in a ladylike term, another shit show.
Jen Palmieri: And Marc Elias, I promise everyone who’s thinking through every possible way that could happen. Okay, but first this week’s strategy session has us waking up to realize that we are six months out. So, let’s take stock. I feel pretty good. The bottom line, I feel like Biden is the one that’s been behind. He’s the one that has to make up ground.
And he has a plan that they’re executing on with a lot of money to reach targeted audiences and polls are moving, right? So I feel like even though they’re still behind, what gives me assurance is the money, the fact that they’re executing well on a plan, and the fact that the plan, you know, is paying off the things, that the polls are getting better. How do you feel sort of baseline on this, Claire?
Claire McCaskill: Well, I think abortion is working, them emphasizing. I think 90 percent of their commercials, the ads they’ve run so far, include that topic. He still has work to do in terms of making sure people understand that it is Donald Trump, it’s 100 percent responsible —
Jen Palmieri: Yes.
Claire McCaskill: — for women being afraid in a huge swath of states right now. What isn’t working is that, if you look at the polling in these various states that will be the battle grounds, it’s very interesting because he is running behind the senate candidates in those states. He’s running behind Tammy Baldwin. He’s running behind Bob Casey. So, it’s not the policies that are the problem.
Jen Palmieri: Right.
Claire McCaskill: It’s him and he’s gotta be honest about that. And the only thing that made me shake my head last night was when he tried to convince, the interview on CNN, he tried to convince folks that he had already turned around people’s view about the economy, he hasn’t.
Jen Palmieri: Yeah.
Claire McCaskill: And he needs to lean in to going after food prices, just like he needs to lean in on his successes on pharmaceutical prices. He needs to lean in on the topics that are top of mind for people, which is the economy. He needs to lean in to all that stuff. And he needs to quit saying that everything is okay because it’s not.
Jen Palmieri: I know.
Claire McCaskill: He needs to meet people where they are, instead of pretending that they see the world the way he sees it right now. And it is a problem for him because that’s what’s gonna get him across the finish line is that connection to people. That he gets it, that he feels what they’re feeling.
Jen Palmieri: Which has always been a strength of his, how he connects to people. And it may be ego getting in the way, because he’s worked so hard to accomplish so much and wants to make sure that he’s getting credit for it. I mean I have noticed in the language that he uses on a stomp and then their digital program, it is talking about lowering prices as opposed to how great things are or like have faith that things are getting better.
And also I’ve done these things to lower prices but, you know, you’re right. I mean when he’s asked directly, you see what comes out. But let’s dive into like a couple of things more specifically. On abortion, the script navigator of that tracks polling really closely. They did a poll on abortion views and there’s good news about Trump still being held accountable for abortion, for overturning Roe. And that from September to now, the number of people who believe that he wants to ban abortion has gone up by 8 points.
You know, because the abortion bans happened under Biden, some people thought the abortion bands were Biden’s fault, but we’ve made up ground on the question of who’s responsible. There is room to grow on that though. As you pointed out importantly with independence, there was only 46 percent of them who were holding Trump accountable. So, I think that that is working and resonating but there’s still work to do.
Claire McCaskill: And let me just say that if I were in the room right now, I really think they got to lean in on crime and lean in on the border.
Jen Palmieri: Right.
Claire McCaskill: And we got to really begin to hold these Republicans accountable for what they did on the border bill. Schumer has got to call it up for votes.
Jen Palmieri: Right.
Claire McCaskill: Various parts of that legislation, things that we were ready to agree to, we need to put in front of the Republicans and make them object, you know, things in the Senate run by unanimous consent. For things to not get unanimous consent, requires days of work.
Jen Palmieri: Right.
Claire McCaskill: So, it’s not as if it would take a long time for Schumer to put on the floor. Some of the more aggressive parts of that bill that we were willing to sign off on and make the Republicans object.
Jen Palmieri: Yes.
Claire McCaskill: And do it over and over again. And they need to do the same thing —
Jen Palmieri: Right.
Claire McCaskill: — in the house. We need to be seen as the party that understands there is a problem with the asylum process.
Jen Palmieri: Yeah.
Claire McCaskill: And that we have got to realize that the emphasis on the crime statistics and the reality that crime is not going up is something we can’t ignore. And if we ignore it —
Jen Palmieri: Right.
Claire McCaskill: — we do so in our own peril and they need to do that.
Jen Palmieri: And I think that because the Republicans don’t do anything and that is very well established in Congress and you know, particularly in the House, they’re just there to blow everything up, the voters are attuned to that fact. And so you’re pushing on an open door with voters when you’re talking about Republicans, not solving problems and just using issues for political gain.
And like it’s true, people have experienced it in their own lives. And so I think we’re at another time where you think we can ever go on offense on immigration because it’s always a vulnerability for us. Now, there’s a lot of reasons to think that you can. And the scenario that you just described is, there’s been reporting on that, that that may actually occur.
Claire McCaskill: Let’s hope.
Jen Palmieri: And that the administration would follow that up with an Executive Order on the border. Remember when the border bill blew up, because Trump said, I don’t want it to happen. The bipartisan border bill blew up and Biden went to the border to talk about it. Trump chased him there. And that was when Biden really broke through. When he took an issue that’s considered to be vulnerable and punched Trump in the nose on it.
And the polling, when it came out of that, 63 percent of Americans said, the fact the border bill didn’t pass was Republican’s fault, right? So, Biden’s a huge problem for him is just breaking through. So, I think this is a good plan and you got to be direct. And if he does this, he should go back to the border to actually take Republicans on because there’s gonna be a visual as well as a really direct contrast to breakthrough.
Claire McCaskill: So, we can’t leave this without first giving plaudits to the second gentleman on emphasizing abortion rights from a male perspective and that men should care about this. And the second gentleman, Doug Emhoff, not only is campaigning on this, he actually went to Atlanta this week and in an NBC News interview, he actually expressed strongly how men should be looking at this issue and how they should care about this as much as women. Let’s listen.
(BEGIN AUDIO)
Doug Emhoff: This is something that we’re talking about. I’m talking about this with my other dad friends. I’m talking about it with my son and it’s not just because, I also have a daughter, I have a son. And we talked about it, about how this is gonna impact him and how he’s gonna start a family or not. And then we talked at length about freedom because even if this isn’t your issue but it should be because, again, women should not be treated less than. Where does it end?
(END AUDIO)
Claire McCaskill: Okay, so we can’t leave this, if I were in the women section.
Jen Palmieri: Yeah.
Claire McCaskill: But honestly if you’ve not watched Boar on the Floor, the episode of “Succession” where the men are humiliating themselves, trying to get a sausage on the floor, Google Boar on the Floor and look at it and then juxtaposition that with Tim Scott refusing to say, let’s listen to the audio, him refusing to say that he would accept the results of the election in November.
Jen Palmieri: Oh, my God.
(BEGIN AUDIO)
Kristen Welker: Senator, will you commit to accepting the election results of 2024, bottom line?
Tim Scott: Well, at the end of the day, the 47th president of the United States will be President Donald Trump. And I’m excited to give back to low inflation, low unemployment.
Kristen Welker: Wait, wait, Senator, yes or no. Yes or no, will you accept the election results of 2024 no matter who wins?
Tim Scott: That is my statement.
Kristen Welker: Just yes or no, will you accept the election results of 2024?
Tim Scott: I look forward to President Trump being the 47th president. Kristen, you could ask me multiple times.
Kristen Welker: But Senator, just a yes or no answer.
(END AUDIO)
Claire McCaskill: And they’re all doing it. They all are on TV, trying out, trying to be mini me Trump. And they’re all embarrassing themselves because I do not believe that J.D. Vance actually believes that Pence was not endangered. I don’t Think —
Jen Palmieri: As he said on CNN, he said it was absurd to suggest that, yes.
Claire McCaskill: The North Dakota Governor Doug Burgum, he does not believe that votes were bought in a massive scale. He’s too smart for that. He does not believe that. So, all of these guys are now they’re showing Trump that they can say with conviction, things they know are not true. That’s what you gotta do to be Trump’s vice president. You got to be a really good liar. And —
Jen Palmieri: Yeah.
Claire McCaskill: — these guys are trying out for the second liar in chief.
Jen Palmieri: Yeah, I mean it’s humiliating and not going well. One other thing, by the way that makes me feel good about where Biden is, is that on Tuesday, Indiana had a primary, 21.7 percent of Republican voters voted for Haley, months, months after she dropped out.
Claire McCaskill: Yeah, mostly suburbs.
Jen Palmieri: Oh, that’s critical, yeah.
Claire McCaskill: Yeah. That suburbs, that’s why her numbers were up. So, suburbs are gonna bring us home in November. And a lot of that is just Trump’s character.
Jen Palmieri: Okay, so let’s talk about the president’s move on Israel and Gaza that we heard about on CNN last night, also him in interviews. Because, I think, he’s been doing more of “SmartLess”, Howard Stern, things like that. But what’s your take on what he did and how he did it?
Claire McCaskill: I thought it was fine. I thought it was good, it show strength. He needs to show strength. That’s one of the most important things he needs to do.
Jen Palmieri: Decisiveness, you mean in terms of strength or —
Claire McCaskill: Yeah, making that decision was a bold decision.
Jen Palmieri: Yes.
Claire McCaskill: To withhold help to Israel in a fashion that is expressing our discontent with the way that Netanyahu has prosecuted this war. And that was bold. It showed that he was not afraid to do something that was going to be controversial in some places. And —
Jen Palmieri: Yeah.
Claire McCaskill: — he was not afraid to stand up to Netanyahu and say, Hey, we’re not gonna get pushed around like this. We feel very strongly in this country that there should be a ceasefire. We feel very strongly that you’ve gone too far in terms of deaths of civilians. We feel very strongly that this has to go differently, that you need to, you know, listen to the people in Israel that are telling you to bring the hostages home with the ceasefire. So, I thought it was a good thing for him to do. And frankly, the people who are gonna lie and say that he doesn’t support Israel are gonna do it no matter what he says.
Jen Palmieri: Right.
Claire McCaskill: So, he’s doing the right thing for those voters that need to be reassured that he is strong enough and decisive enough to lead this country for another four years.
Jen Palmieri: I mean it’s like, it’s important, I think the decision itself is important because it’s probably where most Americans are. They like more than laid down the predicate in terms of warning Israel about what might happen if things didn’t change. And I think it’s good that we heard it from him directly and that is him leading. And I thought he was also good with the students. It’s like, yeah, I hear you, like I hear you.
Claire McCaskill: Yeah, I agree.
(MUSIC PLAYING)
Jen Palmieri: When we come back, Democratic Elections lawyer, Marc Elias, stops by to talk with Claire about the ongoing fight for democracy and voting rights in courtrooms around the country. Back with Marc in a moment.
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Claire McCaskill: Welcome back. After hearing Tim Scott painfully twisting himself in knots over the weekend. I mean this is a sitting U.S. Senator, for God sake. He would not say he would accept the results of the election. It is unbelievable to me that we’ve gotten to this point. We have been through this and we know what’s sowing doubt and fear in free and fair elections looks like because it’s been going on now since early 2016 by Donald Trump.
With this in mind, I wanted to talk to Marc Elias. Marc Elias is the Democratic Party Elections lawyer. He has gotten an iconic status, especially among the Republicans in the United States of America. It is not uncommon to hear them complaining, well, we don’t have a Marc Elias. And I get a big kick out of the role Marc has taken on because my contact with Marc was back in the day when he was having to field calls constantly from individual U.S. senators saying, can I do this or should I do this?
Now, he is no longer with Perkins Coie. He is now Chair of the Elias Law Group and Founder of Democracy Docket. And when you think of Marc Elias, you need to realize that he was the force behind meeting and combating all of the legal battles that occurred after the election in 2020. He joins me now to talk about the ongoing fight for democracy in the courtrooms around the country.
So Marc, thanks for joining me. It’s great to have a conversation with you that’s not about whether or not I’m doing something right or wrong as a sitting United States Senator.
Marc Elias: Well, it’s great, it’s great to be here and likewise. I’m thrilled, every time I see you on TV and hear your podcast, I am cheering along, so I’m thrilled to be here.
Claire McCaskill: Thank you. With the new leadership at the RNC over the last few months, it feels like they’ve gotten a lot more aggressive in court. It feels like they are filing more lawsuits and trying to combat our ability to have open, free and fair elections where we are encouraging people to vote rather than figuring out ways to keep them from voting this fall.
Going back to 2022, you’ve been saying that this fall will be one of the biggest dangers we’re gonna have is right-wing election vigilantism. Explain what you mean by that to our listeners and why you think this is a threat.
Marc Elias: Sure. So look, I think you need to start with looking at this very pragmatically which is, Claire, one of the reasons why I’m thrilled to talk to you because you are, if nothing else, a very astute, pragmatic, observer of how one wins and loses campaigns. And if you are the Republican Party, you are facing the fact that in 2016, Donald Trump lost the popular vote by 3 million votes. Bush lost the popular vote in 2000.
If you go back even further, but he lost it by 3 million votes in 2016. In 2020, he winds up losing it by 7 million votes. So, you know that you are going to lose the popular vote. And at some point, even with the electoral college, this catches up with you, right? You run out of runway of ways to win the election where you are getting ever and ever smaller shares of the overall popular vote.
So, you are left with having to change the composition of the electorate, right? You’re not competing to add Republicans. You are competing to reduce the Democratic vote share. And I hate to say, to their credit, but the Republicans have actually been pretty honest about this. I mean Michael Whatley becomes RNC Chair last month because Donald Trump says that Ronna McDaniel was not doing enough to support election denialism.
You know, Michael Whatley gets chosen because he’s an election denialism. You mentioned Tim Scott, Tim Scott is being an election denier, whether he believes it or not. And I have my doubts there because that is the only path right now within the Republican Party. So if that’s the case, what you have is kind of an inside-outside game, right? You have the states, the state legislators, the governors, the attorney generals, they’re doing their part passing voter suppression laws to make it harder to vote.
But you also now have this grassroots movement, which the RNC rather than repelling away is now embracing of, you know, people at the local level who are committed election deniers, who are going to do things that make it harder to vote and easier to cheat. So we have seen, for example, in three states in the last few weeks, we’ve seen in three states, lawsuits brought by grassroots organizations to strike down laws that protect election officials from harassment.
And no one, you didn’t mishear that, like literally they’ve gone to court to say, we have a constitutional right to harass and intimidate election officials. And they’re doing that because they want to lay the predicate to allow grassroots activists in, you know, whether it’s people with guns or wearing body armor like we saw in Arizona in 2022, or it’s people filing mass challenges or what we’ve seen in Georgia, they want to enable and promote the idea of election vigilantism.
Claire McCaskill: So, let’s talk about some of these lawsuits. Let’s do Arizona. And by the way you say these are grassroots organizations filing these lawsuits, who’s paying the lawyers? Like in Arizona, talk about the effort there and who you think might be paying for?
Marc Elias: Yeah, so first of all, I don’t mean to absolve, by the way, the RNC. The RNC is also litigating cases in this arena. My point is that, and I don’t mean to suggest the grassroots as in they’re spontaneous citizens. These are well-funded. There’s a constellation of well-funded organizations on the right. They are run by people like Stephen Miller, Bill Barr is involved with one of these groups.
Cleta Mitchell, a name, many of your audience are familiar with. She was on the phone call with Donald Trump when he wanted Brad Raffensperger to find votes that didn’t exist. John Eastman has been involved in several of these groups. So, I don’t mean to suggest these are like local mom and pop operations. So, I’m saying that the RNC, which is also bringing litigation, is working hand in glove without probably a better way to put it than grassroots is outside groups that are doing this activity.
And in Arizona is a really good illustration of it where you see a lawsuit won by the RNC, two by these outside organizations, to challenge what’s called the election procedure manual, which is literally what it sounds like. It is the rules of how one runs elections in Arizona. If you are a local county official or even a, you know, a precinct person and you need to know how do I open the polls on time? Where do I put the signage, you know? How do I bundle up the materials at the end of the day?
You turn to this document called the election procedure manual. And it is, right now, subject to three separate lawsuits. Three separate lawsuits, because they don’t want there to be an orderly election and they don’t want there to be rules of the road that they cannot abuse.
Claire McCaskill: So, what is specifically are they challenging in the election procedures manual? Are you in the nitty-gritty of that yet?
Marc Elias: Absolutely, yeah. We’re in all of those lawsuits and you know, it’s quite varied, right? So at the one end of the spectrum, you have efforts, like I said, to strike down provisions in the election procedure manual that are intended to prevent election workers from being harassed. So, you see litigation, for example, saying that the provisions that say you cannot videotape or follow to the parking lot election officials should be struck down, right?
So at one end of the spectrum, you have things like that. At the other end of the spectrum, you have parts of the election procedure manual that deal with how you verify absentee ballots. You know, there’s a lot of push on the right to try to make it harder for people to vote by mail and make it easier to challenge those votes and have them not count.
And so, there is litigation over what standard is used to determine whether an absentee ballot should be accepted. And then you have the Republican National Committee that just wants to throw out the entire manual. Like literally their lawsuit is the entire manual is illegal and the entire manual should be thrown out.
Claire McCaskill: Yeah. And so what do you think, do you see anything in these lawsuits that cause you pause as someone who’s trying to beat them back?
Marc Elias: Look, I think we’re gonna win these lawsuits in Arizona. I think we’re gonna win a lot of these lawsuits around the country. But I think that you need to understand from their standpoint that they have kind of a three-pronged strategy with these lawsuits. The first is they’d obviously like to win them.
Now, they’re not having an enormous amount of success in that regard. They haven’t had a lot of success in the past, which is why, you know, Steve Bannon and others seem obsessed with me. The second, though, is that they want to sow doubt and chaos. And actually in that respect, Claire, I think you could say that they were not unsuccessful after 2020.
Claire McCaskill: Right.
Marc Elias: You know, they lost all these lawsuits, but the fact of losing the lawsuits became part of their talking point about how people would know the election was not on the up and up from their standpoint. So, they want to use it to sow chaos. And then the third is they’re looking at the Supreme Court right now, and they’re saying, you know, this court is not, you know, is a little bit more unmoored, shall we say, from some of the traditional restraint that it has shown.
And so let’s try to get some doctrines, not necessarily individual cases, but doctrines that could sort of really undermine voting. Let’s try to get those cases up to the Supreme Court and see if the court bites on them. Obviously, they didn’t bite on the independent state legislature theory, which was the first fringe theory that they tried to get up and they lost last term in the Supreme Court. But there are other theories that they are now trying to push up to the Supreme Court in time for 2024.
Claire McCaskill: So, what about the ones from Michigan and Nevada, about the number of voters? You know, we keep hearing them try to say that there’s too many voters in certain counties and that signals fraud. Tell us about those lawsuits and what, if any, merit you see in any of them?
Marc Elias: Yeah, so this is really, really important that people understand. There is an inside, outside game that is going on here. When states remove voters from the roles, unlawfully, you know, when they remove large numbers of people under pressure from the Republican Party, or because they want to be helpful to Donald Trump, we call that a voter purge, okay.
And so what the Republican Party and what others are trying to do is to force states to purge voters illegally, okay. They are not having success with this but they are gonna give cover. I’m telling you as we get closer to the election, these lawsuits, even though they don’t succeed, will be the excuse that local Republican election officials will use.
They’ll say, well, you know, the state is being sued, right? And then they will engage in illegal purges (ph). The flip side of that, where we talked about the election and vigilantism is what are called voter challenges, which is where private organizations, individual citizens submit lists of names of people they have never met and they do not know and tell that they think these people should be removed. Same problem just from the other side.
Claire McCaskill: So, this is really whack-a-mole for you?
Marc Elias: Yeah.
Claire McCaskill: Well, and I think people need to realize that this is something, as you look around places that we’ve got to make sure have adequate resources, having lawyers that are well versed in all of the constitutional issues and all of the issues, the legal issues surrounding the right to vote and the right to have elections counted freely and fairly, you know, your law firm has become pretty essential because this is a big deal. As Joe Biden would say, this is a big effin deal.
So, let’s take a quick break here. And when we’re back, we’ll have more with Marc Elias and what we should watch for in November and what we are doing to prepare for what will be the inevitable, if I didn’t win, somebody cheated, that Donald Trump will put forth in November.
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Claire McCaskill: Welcome back. I’ve been talking with my friend, Marc Elias, the Democratic Party Elections lawyer. He’s the firm Chair of Elias Law Group and the Founder of Democracy Docket. I’m gonna look ahead now to the potential for another round of post-election shenanigans and bullshit. Let’s talk about the battles you fought in 2020. What surprised you the most about those legal battles? And what did you take from those battles that you think will be important to use in 2024? Assuming that Donald Trump loses and he, of course, will not concede his defeat.
Marc Elias: Yeah, so I think the thing that surprised me in 2020 was how sort of scattershot their post-election strategy was, you know. I had assumed, I’ve litigated post-election cases against Republicans for years. You —
Claire McCaskill: Yeah.
Marc Elias: — probably remember from the Senate.
Claire McCaskill: No, listen, Marc Elias lived in Minnesota.
Marc Elias: Yeah.
Claire McCaskill: For like six months after Al Franken defeated Norm Coleman, because there was a very close recount in that. And he was fighting, all of us in the Senate were kind of on the edge of our seat, watching him battle that recount issue. So, I know you’ve got a boatload of experience in that area.
Marc Elias: Yeah. So, you know, I had done a lot of post-election litigation and you know, Republican lawyers, they’re not my cup of tea. They don’t always come with what I think are the best legal arguments, but they have a legal strategy. And I figured, all right, you know, Donald Trump is, you know, an authoritarian person who’s unhinged, but he still has lawyers. And those lawyers have undoubtedly put together a plan.
And so what surprised me, Claire, was that the litigation that we saw, just a lot of it just made no sense. I mean it was premised on dead Venezuelan dictators and mythological sea creatures and, you know. It was just like a lot of nonsense and there was some stuff in it that you could sort of parse apart. But a lot of the post-election litigation just seemed like there had been no thought put into it in advance and it wasn’t towards an aim.
I mean, you know, one of the things I always say about the Brad Raffensperger call, and this is not to diminish, you know, the importance of it, but like where was he supposed to find 11,000 votes? Like, you know, this. You can’t just miraculously add 11,000 votes and no one is gonna notice. It’s not like Donald Trump drawing on a hurricane chart, you know, the path of the hurricane and like thinking people may not notice. And so it was just very, very scattershot. That was the thing that surprised me the most.
The second thing that surprised me and this really, you know, Claire goes to you and your former colleagues is I don’t hold House and Senate Republicans in enormous esteem. But I do have to say, I would have thought that their institutional self-interest would have kicked in a way that it really didn’t kick in.
I mean you saw a hundred and some odd members of the house vote not to certify the election on the evening of January 6th. You saw senators there and then they just sort of utterly collapsed, as you mentioned at the intro, with Tim Scott, right, like reeling (ph) up to now. And so I’ve been surprised that that litigation rather than repel Republicans in Congress seemed to actually have a bit of a galvanizing effect.
Claire McCaskill: Yeah and the weird thing is so many of them were elected in the same elections.
Marc Elias: Right.
Claire McCaskill: You know, that’s the thing that I always kept thinking to myself, how are these guys standing up with a straight face and acting like the election was somehow fraudulent, whether it be Pennsylvania or Michigan or wherever, when Republicans were on the same ballot and were elected.
Marc Elias: Right.
Claire McCaskill: It just made no sense to me. So, what do you think it’s gonna look like in the fall? Let’s just assume, hypothetically, that Joe Biden wins a popular vote by somewhere between 5 and 8, 9 million votes and he wins the electoral college narrowly based on the results in a handful of states, what do you think the Republicans are going to do at that moment, legally? What strategy do you think they’re gonna put forward?
Marc Elias: Yeah, so look, I think that the first thing that everyone needs to understand is that if there was a floor of respectability that kept the RNC from doing crazy things, that is gone, right. There was some talk about how in after 2020, the RNC took a step back and was not supporting the craziest lawyers. I think that’s gone. I mean the RNC has hired Christina Bobb, who was an election denier.
She is now an indicted election denier. She’s been indicted in Arizona in connection with the fake electors scheme there. And she is literally the top lawyer in charge of election integrity at the RNC. So, the first thing I think we need to realize is that we are not likely to see Jenna Ellis, Rudy Giuliani and, you know, Sidney Powell level lawyering. We are gonna see more establishment lawyers because the establishment, the RNC itself is now in this game.
So, I think number one, we should expect that the quality of the legal arguments they make and the resources behind those lawyers will be greater, number one. Number two, I think that they are all in. You know, they are all in, in a way that they were not in 2020. I think that there were elements of the establishment, legal community, that thought, you know what, Donald Trump will now be gone. We’ll sit back and this will all get better.
That’s just like, you know, that isn’t the case. I mean establishment Republican Party, including the legal establishment are all in with this guy. And so I expect we will see a much more aggressive, legal strategy, a much more competent legal strategy. And, Claire, and this is again why I come back to your colleagues, I think the Overton window of what is acceptable for Republicans to do has really shifted.
And so there are arguments that, I think, lawyers would not have been willing to make that now they are willing to make. There are groups that lawyers would not have been willing to work for, that they are now willing to work for. And so, you know, if you had asked me in 2020 would a Republican lawyer of stature be willing to sue to strike down the Election Workers’ Protection Act, that is literally the name of the law.
I would argue that the First Amendment gives a right to harass election officials. I would have said no. That would be constrained because you’d have Republican house and Senate members and governors sort of afraid of the politics of that, but they’re not afraid of the politics of that. And so I think we have to prepare in 2020, like this is going to be the fight of our time in court after the election.
Claire McCaskill: So, two questions about that. One, I assume we are going to have a very aggressive and thorough election protection strategy on the ground. So, that any effort they are making to gather “evidence” of fraud will be met with our ability to factually put in front of the court what really happened, and that this is not accurate. I assume that’s underway?
Marc Elias: Yeah, look, I think that there is gonna be mass mobilization on both sides. I think that you should assume that the Democrats will be well-represented, hopefully, you know, will be ready. I think that, as I said, one of the things that you see Republican lawyers doing now, which I have to be honest, like it is the wild card in all of this, is the Supreme Court argument on the immunity case. I’ve argued in one, four cases in the U.S. Supreme Court and I’ve watched a lot of other arguments, that argument was like nothing else I’ve ever seen.
Claire McCaskill: It was weird.
Marc Elias: It was weird. It was weird, right.
Claire McCaskill: It was like, I think all of us that are lawyers that understand how the Supreme Court behaves, this was so bizarre what those guys were saying on the bench.
Marc Elias: Yeah.
Claire McCaskill: That somehow this is the time for them to reach into some kind of imaginary bag and do a new doctrine about when presidents can violate the law?
Marc Elias: Yeah.
Claire McCaskill: It’s crazy.
Marc Elias: Yeah, weird is the right word. I mean it’s hard to convey to non-lawyers. It wasn’t that it was like the most extreme argument I’ve ever seen. It was just the weirdest.
Claire McCaskill: Right.
Marc Elias: As you said, they were sort of fidgeting around for a new doctrine that doesn’t have any textual support, doesn’t have any historical support. That they were sort of like basing on their own sense of like, what would happen if this happened in (inaudible). Anyway, so the wild card in all of this is that I do think that we are seeing the Republican legal establishment trying to float up cases now.
And the Nevada case, you mentioned, is a good example. They are trying to float up some legal theories that they hope to get to the Supreme Court, that could fundamentally redefine the right to vote. I’ll give you one quick example. You have Republican attorneys general now trying to say that there is no private right of action to bring litigation under Section 2 of the Voting Rights Act. Section 2 of the Voting Rights Act is the primary tool to prevent minority voters from discrimination and vote dilution.
And if that prevailed, you would essentially wipe out the ability of whether it’s me or the Democratic Party or the NAACP or the ACLU, to bring any litigation to protect minority voting rights under the Voting Rights Act. That is an extreme doctrine that has never been adopted, but that’s the kind of thing, you listen to that argument, Claire, that you felt weird.
Claire McCaskill: Right.
Marc Elias: And you’re like, I don’t know, you know, could that happen?
Claire McCaskill: Could that happen? Yeah, I mean Alito is really on a different planet right now for people who follow the Supreme Court closely. I think most lawyers who are being objective would agree.
Finally, I wanted to ask you, do you think, I mean we have two problems here. We have educated Republican office holders who know better, who are falling into this cesspool. In fact, they’re diving in headfirst and of course we’re gonna have new leadership in the Senate. So, folks that are running for leadership in the Senate and probably will have new leadership in the House, they’re gonna be appealing to the cesspool, not to the normal Republicans because the normal Republicans are in the minority now.
And then you have the lawyers, there have been lawyers disbarred over what they did after 2020. Do you feel that the legal mechanisms to take away someone’s right to practice law is operating the way it should? And is it a real deterrent at this point for these lawyers who would bring baseless lawsuits that are not brought in good faith and have no merit whatsoever?
Do you feel that the threat of disbarment has now become anything real to these lawyers or should we just assume that they are gonna go ahead and plunge in, even though they would fail an ethics exam in law school, if they were behaving that way on a test paper?
Marc Elias: Yeah, look, I am very worried about this and I’ve been a big critic of a lot of our institutions. One of them being the judicial and bar associations that oversee lawyers, the fact is that I feel like the judiciary and the bars are actually failing democracy. It is great that John Eastman is being disbarred or not great. You know, it’s appropriate that he’s been disbarred.
Claire McCaskill: It’s appropriate.
Marc Elias: But it’s years later and these processes are really of a different age. And if the establishment institutions of America, whether it is the media or it is the bar or it is the corporate boardrooms, if they can’t have a bias towards democracy and sort of a outer limit to attacking free and fair elections, then I think we really need to rethink their values. And I’ll start with the bar associations. Like there needs to be a democracy candidate that, you know, you can argue a lot of things, but you can’t fundamentally argue to overturn democracy.
You know, you can’t stand in the Supreme Court, Claire, and say that a president can assassinate his political opponents and that just be treated as a normal argument. And I’ll be even critical, frankly, of the trial judge in New York, you cannot have a system in which a defendant is committed contempt day after day after day in violation of a gag order, which by the way, if this was a 25-year-old black man in New York city who was arrested for selling drugs in Times Square —
Claire McCaskill: Oh, he’d be in jail.
Marc Elias: He’d be in jail, right.
Claire McCaskill: Absolutely.
Marc Elias: But I do think we have to ask ourselves whether or not the legal institutions here, including the bar have, again, shifted the Overton window in such a way that, sure, there are disbarments at the very outer lens, but we have sort of normalized a contentious behavior towards democracy. And I don’t think any lawyer should have a bar license for the privilege of destroying our country’s democratic traditions.
Claire McCaskill: Well, I hope that the bar association, especially the various organizations that deal with bar complaints in the states invite you to speak. They need to hear from you and they need to hear some real truths at this point because this is serious. It’s really serious. As an attorney who always tried to take seriously what I swore to that I would follow the rule of law and that I would act in good faith. And it’s frightening to me that we are not doing a better job of policing our own.
So listen, we have so much more to cover. There’s so many more issues that are out there. I just want to thank you for spending some time with me today to go through this. I know our listeners appreciate it. And we are gonna probably ask you to come back again before the election to maybe even dive deeper into what are the preparations and why people should feel secure about going to the polls.
Remember everybody, don’t let them win. Do not let anybody deprive you of your right to vote. They may make it a little bit harder, but every time they do that, you should become more determined to show them that you cherish your right to elect your representatives and shape your government. Don’t let them do it, don’t be frightened. It’s gonna be fine. It will be fine.
I think it’s really important to emphasize that. And we may need you back in October to remind everybody that now’s the time to get passionate about voting. Not to think that it’s one that you can just pass by this time. Thanks, Marc.
Marc Elias: Anytime. It’s always a pleasure to be with you.
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Jen Palmieri: Thanks so much for listening. If you have a question for us, you can send it to howtowinquestions@nbcuni.com or you can also leave us a voicemail at 646-974-4194. And we might answer it on the pod. And remember to subscribe to MSNBC’s “How to Win” newsletter to get weekly insights on this year’s key races sent straight to your inbox. Visit the link in our show notes to sign up.
Claire McCaskill: This show is produced by Vicki Vergolina. Janmaris Perez is our associate producer. Bob Mallory is our audio engineer. Our head of audio production is Bryson Barnes. Aisha Turner is the executive producer for MSNBC Audio. And Rebecca Kutler is the Senior Vice President for Content Strategy at MSNBC.
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