Legal Expert Breaks Down Trump’s Plan to UPEND the Midterm Elections

The administration with the help of the Supreme Court is looking for ways to undermine the outcome in the midterms, either by disenfranchising legitimate votes or finding ways to cheat. I am joined by lawyer and the creator of democracy docket, someone who is on the legal front lines in this fight. Mark Elias, welcome back to the show. Thanks for having me. I thrilled to be here in person. In person. In the flesh. In the flesh. Now, there's so many different strands of this. Let's start with Mike Collins. He is the Republican running against John Assoff in Georgia talking about troops at the polls. Let's watch this. Awesome. Thank you, Senator. Early voting starts in a couple of weeks. October 13th and some folks in the administration have flooded the idea of having settled through its sites in some precinct areas. Have you got any thoughts on that? You know, I've always been a firm believer in local elections or state and local level. The last thing we want is for people to not have confidence in their elections and not show up. So, you know, if that's something that they decide that they need to look at, then that's fine with me. Oh, they're floating the idea of having federal troops at the election. Just spitballing. No bad ideas in a brainstorm. What's your reaction? Well, first of all, it violates federal law. Okay. So there's a federal criminal law that prohibits armed federal agents, including the military from being present at polling locations. It's actually a felony punishable by five years in prison. So like, that's my first reaction. My second reaction is that, you know, he's a believer in local administration of elections, except perhaps when Donald Trump wants troops at the polls, which would be literally the opposite of local control of the elections. And then my final thought is, luckily, we won't have to really get to know Mike Collins very well because he is soon going to be the former candidate from the US Senate when John our soft wins. Yeah, there was a quote recently that they're no longer trying to restore the patient, but just make the patient comfortable. Yeah, we're in the palliative care of a portion of this kind of race. Yeah. And there's nothing interesting about that moment too, because he starts by saying, I believe in state and local governing. And you think there'd be a butt there, or some sort of acknowledgement that what he's about to say runs counter to that, but he doesn't even have the wherewithal or kind of political courage to disagree with Trump even in the slightest on the question as to whether or not there should be federal troops at polling places in Georgia. The administration recently, there was a story out of Wyoming of DOJ officials showing up in this ham-fisted way to polling sites in Wyoming that led the Republican governor to speak out against it. It was strange. They'd announced that they were going to be sending these polling workers all over the place, but the Wyoming officials were still caught off guard. What are they, like, in your sort of worst imaginings? What do you think they would try on election day? Yeah, so look, the plan that Donald Trump has is to make it harder for people to vote and easier for him to cheat, because as you point out regularly, like Donald Trump is historically unpopular, the Republicans have nothing to run on. So what we have been seeing in the run-up to the midterms are a series of efforts by Donald Trump to try to use the power of the federal government to skew who is able to vote, right, proof of citizenship, save act, all of that, the U.S. politics, the attacks on the U.S. Postal Service, but as we head towards election day and we talk about, you know, like what are the threats then? What they're trying to do is to both shape the electorate by, you know, deterring certain people from voting, but then, if they can, trying to take over the vote counting in the certification process. I mean, in 2020, in the aftermath, when I was representing President Biden in beating Donald Trump in court, there was a meeting in the White House, which we now know about, and an executive order presented to him in which he would have the military seized ballots and voting equipment in Georgia. And that only didn't happen because the Department of Justice and the White House counsel's office said you can't do it and we'll resign. Like, there's no one, this time that is going to say they won't do it, no less say they are going to resign. So I'm not saying this is going to happen. I'm not saying that it is, but it is even more probable than not. But I think Trump wants the optionality to, if there is the circumstance where he can, to use, you know, federal law enforcement ice, whoever it is, or the FBI to get engaged in ways that are clearly in violation of federal law. To that end, last week, the Supreme Court gave the administration a temporary green light to use what's known as the SAVE database. And I just, that is different from the SAVE Act. The SAVE Act is the voter ID and restriction bill that Trump wanted that the Senate didn't put forward. The SAVE database is a separate database that was created in the 80s, I believe, to allow public benefits to be verified against citizenship. The Supreme Court, the conservatives gave the administration that go ahead to use it for the voting roles. Here is how Fox covered the story and then we can react to it. All three, Democrat appointees on the court dissented Katanji Brown Jackson wrote that the court also focuses on the harms the government will purportedly suffer absentee disregarding the harms that the modified system is caused and will likely continue to cause to lawful voters. What? How is this going to hurt lawful voters? That does not even make sense. Only Democrats could turn verification of citizenship into a harm for eligible voters. Only Democrats could do this. So what's the problem? The problem is that the database was never designed for this and it is riddled with errors. This is not my hypothesizing. It's not speculation. We've already seen the use of the SAVE database applied to states prior to the injunction that had been put in place and have enormous error rates. We're talking about double digit error rates, error rates that go in the 20% and higher. That's because it wasn't designed as a voter database. It was designed, as you say, to flag people who might or might not be eligible for government benefits. So the harm to Laura Ingraham's question is that people who are lawful US citizens, as eligible to vote as she is, as eligible to vote as you are, as I am, who have no impediment under the Constitution or federal law or state law to vote are nevertheless in this database as in eligible to vote because it's error-ridden for the purposes of elections. So what would happen? So let's say, and we can get into the specifics and it's a little technical, but so let's say just a person finds out that through this process, even though they're a lawful voter, there are citizen United States, they've been removed from the voter rolls. Is that it? Have they lost their opportunity to vote? Can they question it? Can they challenge it? Like what happened in these cases? Yeah, so a couple of things. The first is if someone shows up to vote and this is sort of a PSA to everybody. If you show up to voting, you're not on the voter rolls, federal law guarantees you the right to cast a provisional ballot and you should cast that provisional ballot and it will then be resolved after the election. So there is this safeguard of provisional voting, but the truth is for many, many people, if they find out they're not on the rolls, they don't cast a provisional ballot. Like they don't get in the second line. Yeah. And then go through all of that rid of roll or after the election, they don't go through all of the hoops that are necessary and they shouldn't have to. I mean, the truth is that nobody should be have their right to vote challenged because Donald Trump decided the last minute to convert a benefits database created in the 1980s into a voter suppression database because he couldn't get his hands on the state voter rolls, right? This all originates because the federal government, the Department of Justice tried to get the state voter rolls in violation of federal law and the U.S. Constitution and in 20 some odd places, they turned it over in 30 places, 30 states rejected, including, by the way, a number of Republican controlled states. My law firm and I, we intervened in those 30 cases. Right now, DOJ is over 25. We're undefeated, right? Every judge who is considered whether they have a right to this information has said no. So then they pivoted to the U.S. Post Service and they pivoted to this. But these are last minute efforts that are designed, frankly, to disenfranchise voters because the administration knows that these database are flawed. So there's a 90-day rule that says you can't, it's the quiet rule, the idea that basically in the 90 days before an election, you can't have, say, you can't do these big purges of voters, you can't engage in these kind of shenanigans because it's just too close to the election and there's no way to repair the damage if you make a mistake. So there's some debate about what happens now that the court has allowed the administration to use these database or allow states with the administration to use this database and to whether or not they could sort of clear non-eligible voters. What happens, right? So they're not supposed to do kind of wholesale clearing of the voter rolls. And look, voter rolls have to occasionally be clean because people die, people move, right? Like if you were registered to vote in one state and you move to another state, you registered in that state. They have to clear your name off of that out. There are legitimate reasons to do this. What is the difference between a state, like what could a state do now to use this new database in a way that you think will run a foul the law? Sure. So there's some debate here between people of goodwill and I plan to be in the middle. more alarmist or more concerned camp than the people who are less concerned. So essentially you got to write. Federal law says that states cannot do systematic removals within 90 days of an election. They can do individualized removals, right? So like if they become aware of information that a particular person has passed away, they can remove that person based on that individualized information, but they cannot do sort of data matching from list A and data matching from list B and just do mass purge removals. But even as you say that, that is a subjective distinction, right? We have a lot of them, they have a list of non-citizens from some cock-a-mami list and they say, "Well, we're individually checking this list "against these names." Precisely, so what happened in this ruling is that Justice Jackson understandably was trying to, I think, sort of put a little bit of momentum on the ball, put a little bit of a spin on the ball and said in her descent, "Well, the good news," I think she said, on the bright side, is that you can't do these mass removals. And I was like, "Well, that's great." So yeah, and we can't do these mass removals, right? That's great, but by experience with the Trump administration and with Republican election anires, is that their position's going to be we can do whatever we want, call it whatever it needs to be called, but we're going to do it. And there was actually a case in the US Supreme Court later this term, which actually is a case that my law firm is handling, in which the Republican party's position and the Trump administration's position is, that actually this quiet period doesn't apply at all in many circumstances, including where it's non-citizens. So like, to me, the worry here is that they are going to seek forgiveness, not permission, and we're going to have to sue them. And it doesn't mean we won't win in court, but I do think that the idea that the Trump administration is going to be like, "Oh, well, geez, there's a federal quiet period." And the dissent in this case says that it's only individual rules. I just think we need to be realistic. I understand that people on the other side are like, "Look, don't create a self-fulfilling prophecy." But I think we, I don't think the Trump administration needs me to know that they're going to try to abuse the law and that we'll fight back against them in court. Right, like, they're sort of like a hottie response to this is, if someone's ineligible to vote, they're a non-citizen and they're on the voter rolls, the law is the law, and it applies in this 90-day window. But you can obviously see. Look, you can, you can, you know, have to be that cynical to say, "All right, well, you know what they're going to do, they're going to purge a bunch of hismatic names, and they're going to catch people that have the same name as someone who might not be a citizen." And they're going to use faulty data to remove a bunch of people and sort of end and deal with the consequences after, as you say. So that's the thing though, right there. It's that, yes, everyone agree that non-citizens shouldn't vote. We can, saying people could agree that non-citizens with a rare exception don't vote. The question is whether a database that was not created for this purpose, and which has a very high error rate, should be the source of the data to do these mass removals. The reason why the conservatives, the conservatives on the Supreme Court, found that there was standing in this case, is because actually one of the plaintiffs was a US citizen. That everyone agreed was a US citizen who was, would be removed if you used the same database. So there are going to be these errors. And so the right wing wants to act like, well, what's the problem with removing non-citizens? And my answer is, well, why, why use a faulty database? Podsave America breaking news is brought to you by Zippercruiter. With everyday interactions becoming increasingly impersonal, someone going just one extra step can be huge. Like when my doctor takes the time to call me with test results instead of sending them electronically, they came back positive for gay. It makes me feel like a human being again. If you're hiring, great candidates can also go the extra step and tell you why they're interested in your job on Zippercruiter as a way to stand out from others in the pool. 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I just don't think it is right there are ways in which Amy Coney Barrett has genuine convictions. Neil Gorsuch has genuine convictions. There have been a few surprising rulings here and there from this court. How do you think about making a persuasive case to the conservative justices you need to win to have on your side? - Yeah, I think you make a really important point. And it gets me in trouble sometimes with people on the left because I don't have the luxury of buying into the cynicism that it's all rigged. Like in fact, I make the argument that the person who benefits from just saying it's all rigged is actually Donald Trump because he wants us to think there's no point in finding back and that we can't win in court. The truth is that there are distinctions and it doesn't mean I'm blind to the Supreme Court. It doesn't mean I'm blind to its faults or flaws or that I wouldn't like to see Supreme Court reform. But I think you need to look at each of these folks as individuals and you need to pitch your cases, you know, to them. So for example, in the spring, my law firm, and I, we won a case in the Supreme Court involving mail-in voting, which was five four in which Justice Coney Barrett and the Chief Justice sided with the liberals and said that ballots postmarked by election day that are received afterwards can still be counted in the 19 or so states that allow that. The Republican National Committee was on the other side of that case. But yet we won that just in the last couple of weeks, you know, in three separate occasions, my law firm won in the U.S. Supreme Court to save a Missouri map from being changed to an extreme gerrymander in violation of state law in Missouri. And it was Justice Kavanaugh, who in all three cases led the charge to save the map that we think should be used. Now, it doesn't mean I don't have deep disagreements with Justice Kavanaugh in a lot of these cases. And Justice Barrett and the Chief Justice, I think in the Kalei case, they were all wrong and to the tragedy for American democracy. - Okay, so this was the case at Louisiana that gutted section two of the Voting Rights Act that sort of polished off the last aspects of the crown jewel of American liberty as Ronald Reagan called it. So I think we can both be realistic and concerned about the Supreme Court in issues of democracy and voting rights without acting as if we never can prevail if we pitch our arguments to them. It doesn't mean we get a fair shaker, we don't have an uphill fight, but it is important that folks, that Democrats and people on the left, we take our wins and we celebrate them when we have them and we do have some wins that we should be celebrated. - So on the administration's ability through this executive order to use the post office to hold ballots, tell me if I'm wrong, but so far the decisions have hinged on the timing that it would create chaos, right? That there would be a lot of problems if this were allowed and we won a victory of holding this off, but it could still apply, say in the next presidential election. What do you think happens when, is there a substantive argument that you think that we're gonna win on that or is it like kind of, yeah. - Yeah, so a couple of things. The first is, as I said, I think we need to take our victories when we have them and stop worrying about what happens two years from now, who the hell knows what happens two years from now? - My fair enough. - But I do think there's a substantive argument there. I think if you look at the majority opinion, and this is a good example. Like I think if you look at the majority opinion, the court ruled both that those of us on the side of not allowing the post service to initiate this rule or put in place this rule. It said both we were likely to prevail on the merits and that it was too late. Now, if I had to guess, and it's just a guess, do I think that Justice Kavanaugh was probably more in the it's too late camp? Yeah, he probably was. So like whether he's gettable on the merits, who knows? But would it shock me if the Chief Justice or Justice Coney Barrett or even Justice Gorsuch just said, you know what? The statute doesn't actually give the Postal Service the authority to do this. Just forget about all the constitutional stuff just like on the plane reading of the law. It wouldn't shock me. In fact, the case that I won on this in the DC District Court on behalf of the Democratic Party was before Judge Nichols, a conservative Trump appointee. And he didn't cite any of the constitutional provisions. He didn't make the argument that, you know, that I think is intuitive to many of us about who controls elections. He just said, you look at the Postal Service Rearorganization Act. The Postal Service just doesn't have the statutory authority to do this rule. One last issue we wanted to talk about. So weird video from Secretary of Defense, Pete Hegseth. Here was his message. We have a cut down version of what he said in a video address. 300,000. That's how many of our warriors were not registered to vote, according to studies of the 2024 election. That's more than the ballots cast in cities like Detroit, Boston, Milwaukee, or Seattle. So I'm urging all of our war fighters, their spouses, and eligible family members, go to fvap.gov. F-V-A-P dot gov. And do it today. And commanders, get out the vote. You're not telling them who to vote for. You just tell them to vote. Every warrior deserves an opportunity to cast his or her ballot and be confident that it will be counted. Keep our nation the land of the free and the home of the brave. Get registered and vote. What do you think? Look, I mean, I thought they're choosing the city is just a little weird. It's right on the line. Keep the land of the free. It's like, I just, yep. Anyway, I thought that was a little on the line. I think the overall message that we ought to be encouraging people who are overseas and in the military to vote, I think is exactly right. Congress passed the U.A. Cava Law to make sure that military and overseas voters can vote. The fact is I've been involved in many cases that the Republican Party has been on the other side of where I'm trying to allow and make sure these folks can vote. This happened in North Carolina, right? This happened in North Carolina. They tried to disenfranchise a bunch of military ballots because of a voter ID law. Yeah. So essentially, they like the the part of the the military and overseas ballot law that only applies to the military and doesn't apply to other people overseas. But even within the military, what's happened over time is that the the composition of military voting has changed as the composition of the the military has changed. And so Republicans have been much less eager to see high turnout in some branches in some parts of the military, a younger, more diverse, a younger, more diverse military. And so, you know, like I agree with the secretary that we ought to make sure that these folks are not disenfranchised. Perhaps he should let the Republican party know. Last question. So Republicans have been pushing for voter ID. It tends to pull well when you ask people, it seems like a common sense idea. If there was a deal on the table for a national voter ID law, what would you demand to get to yes, where you think it would be good for democracy and something Democrat should support? Like if there was going to be a national voter ID law, is there a way that you would think about it? Right? Because a lot of these like that would help in some of these state issues and local issues around disenfranchising and all the rest. Yeah. So I actually think of the idea issue, ID law issue less in terms of a deal. And more in terms of just like on the merits of the ID law. And this makes me somewhat heterodox, honestly, within the Democratic party. To me, the question is what, what is the ID law trying to do? Right? So like I actually don't sue to challenge that many ID laws. Like I'm not like the person who would list voter, you know, voter ID laws is like the most aggressive thing that has to be litigated. To me, what the reason why it pulls well is because most people think that what is being requested is that you have to show identification that proves you are the person you say you are. And if Republicans put that on the table, I think honestly it would be a much harder political issue. And I think there'd be room for negotiations for sure. But here's the thing. You know, if you have to show that document that proves you are who you say you are, then why does it have to be an unexpired driver's license from the state in which you are voting with your current address? Right? Like why does it have to prove your address? Why does it have to be current? Why does it have to have an expiration date? If all we're trying to prove is that you are who you say you are, why do you need those things? And people will say, well, you know, you need proof of address because it proves that you you are who you say you are. A US passport doesn't have your address. A US passport doesn't have where you're from. Right? So like we get into these things, I've never understood why it is that if you are a student from Texas and you are voting in say New Hampshire, Republicans in New Hampshire don't want to accept your Texas drivers license. And if you're a student in New Hampshire voting in Texas, the people in Texas don't accept your New Hampshire driver's license. And why if you are in a nursing home, if you're in a nursing home and you don't drive, they won't accept a sworn declaration from your caregiver. I mean after all, what would be a better way to prove the identity that the person is who they say they are? If you're in a nursing home, then the person who spends, you know, 18 hours a day taken care of you. So I think the problem is that that when we get into what it is that people think ID is, which is just proving identity, and then you match it up to things like the SAV Act, which for example, in the SAV Act had a provision that said that states are not permitted. Okay, federal law preempting going back to Mr. Collins who claims he likes local election administration. The SA, the federal SAV Act had a provision that said that states are not permitted to allow state issued college and university IDs. Even if they have all of those other criteria, educationally issued IDs, issued by education institutions, cannot count. So this is why I say I think that if the Republicans came to the table with an honest discussion of ID, I'd be happy to have this. But this is why I bring it up because a lot of this is sort of these antiquated systems that that work. And there's there's no widespread fraud. Not of course. But like the idea of even just you have to register for an advance of an election, because that's from a time when someone had to write it down. And there was no databases, right? There was like these systems are, even like some of the basics of these systems are from a kind of an earlier era, a system where you're automatically registered to vote, where you're guaranteed. And I'll put, you know, you're wrote to your, your, your right to vote is guaranteed. The government is required to provide an ID for you, right? Because a lot of ways in which you could use a, a, a Republican push for voter ID to create a system that actually enfranchises more people. And to me, like, it seems like we spent a lot of time attacking their premises. And finally should. But let's get to a place where actually we're helping all the people that are kind of being undermined by the current system too. Yeah, look, I mean, you could have a system where the federal government issues a photo ID to every person, a national ID. And then that's used. Most of the, the countries that Republicans always point to that require photo ID is because most countries have a national issued ID. The reason we don't have that is because it is the right wing libertarian part of the Republican Party that has resisted that over time. Yes, we are still rolling out real ID, real ID, because something that George Bush wanted to implement in a matter of a few years, it has rolled out so slowly. I still don't have it for the, I have, I have my passport card with me because I needed to fly because I haven't bothered to go to the DMV to get my updated California driver's license. Correct. So like that's, that's, that's something. The other thing I always put on the table is, you know, I'm in LA with you. I hear there's a big merger going on. Okay. Um, between two movies studios. Um, why wouldn't a ID from a well-known employer in the area qualify as ID? I mean, do we think there's like rampant fraud in IDs issued by, by, by employers? Right? You know, like, there are lots of ways to satisfy the proof that someone is who they say they are, other than just having a current driver's license hunting or fishing license from the state in which, but not the college, but not the college, which sort of gives away the game. Well, Marga, I asked, good luck in court. Thank you for being here. We'll talk to you soon. Positive America is a cricket media production. Our show is produced by Austin Fisher, Saul Rubin, McKenna Roberts, and Ferris Safari with Reed, Charlene, Elijah Cohn, and Adrian Hill. 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