David Remnick: In the firehose of outlandish statements bursting out of Donald Trump, like Mexico sending Hannibal Lecter to the United States or Kamala Harris becoming Black just recently, well, you might have missed something like this.

Donald Trump: "You don't have to vote. Don't worry about voting. The voting, we got plenty of votes. You gotta watch election night. You know, it used to be election day, election night, now it's election month. Now it's election period. Some of these things going for 53 days."

David Remnick: We've got plenty of votes because in Trump's view, he's always the winner, and the election is always rigged. In 2016, he said it was rigged until he won it. He claimed the 2020 election was stolen, as he was desperately attempting to steal it now. Now right up to the January 6 insurrection, Trump's main strategy for denying his loss in 2020 was a barrage of legal challenges. For Democrats fighting off those challenges, the tip of the spear was an attorney named Marc Elias. He was so good, winning virtually every case that Trumps team brought, that even Steve Bannon speaks of him with a sort of admiration.

Now Marc Elias is working for Kamala Harris campaign, and despite all his past victories, he is really concerned about 2024. Election denying officials are in power in many of the swing states. Marc Elias fears that the assault on the democratic process this time around could be much more effective.

Marc Elias: In 2020, Donald Trump did not really have a plan for the post-election. Donald Trump, I think, thought he was going to win the election. When you looked at the actual execution of their post-election plan, such as it was, or their litigation, it was pretty haphazard. We were talking about Rudy Giuliani holding press conferences in the parking lot of landscaping companies. One of the things I warn people about is that 2024 is not the year of Rudy Giuliani. That already in the pre-election, the quality of the lawyering is [crosstalk].

David Remnick: No more streaks of hair dye coming down the cheek during tense press conferences.

Marc Elias: Correct. I think we should all expect that they are more competent than they are before, and also Donald Trump is more desperate than he was before.

David Remnick: He's more desperate than he was before. How come?

Marc Elias: Well, in 2020, he was in the White House. He wanted to stay in the White House, but being ex-president is not the worst thing in the world. Even still, he was willing to instigate a violent insurrection. Now he faces the prospect of four criminal indictments, two of which are in federal court. I think he believes that his ticket to personal freedom rests on him winning the White House and at least having the two federal cases dismissed, and maybe he's able to do some magic with the state cases.

David Remnick: Other than getting rid of Rudy Giuliani and that level of talent or non-talent, what would they do?

Marc Elias: I think the biggest thing we have seen them do is to drive out of election administration, good election officials and good workers, and replace them, in many instances, with bad election officials and election deniers. In 2020, Donald Trump wound up calling, along with the chair of the Republican National Committee, kind of an extraordinary thing, if you think about it. The sitting president and a party chair called two local county certifiers in Wayne County, Michigan, to try to get them to violate their oaths of office by refusing to certify the election. That failed. Okay.

In 2022, we saw in Cochise County, Arizona, the county tried to refuse to certify the election results. In 2022, in Pennsylvania, we saw Republican election deniers trying to refuse to certify election results. In most of those instances, litigation wound up being the tool to compel them to certify. That is a suboptimal state of affairs going into a national general election.

David Remnick: One of the things that struck me last time around on a very human level was to see very earnest public servants, volunteers, counting votes, but intimidated by the process. The intimidation went all the way up to the President of the United States. Do you think this time around there's an element of greater intimidation or the opposite? Do you feel that the people that are working these jobs feel protected overall by the legal system?

Marc Elias: I think it's a mixed bag. On the one hand, we should take solace in the fact that the system held in 2020.

David Remnick: By its chinny chin chin, it barely--

Marc Elias: Yes, barely, and there is more robustness preparing for 2024 than there was in 2020. That's part of the good news.

The other positive is that you do have more responsible election officials in more senior positions. You have a Democratic governor in Pennsylvania, in Michigan, in Wisconsin, in Arizona. You have Democratic secretaries of state in those places, as well as in Nevada. In Georgia, you have Republicans, but Republicans who have been battle-tested against Donald Trump. That's the good news. The bad news is that there is more force being placed on the system by the other side.

David Remnick: Well, tell me about that force. What do you mean by that in particular?

Marc Elias: The last two years have been pretty extraordinary in the volume of anti-voting litigation that is being filed by Republicans. I think that it falls into two buckets that are really relevant for today. The first is they are bringing litigation to upend the voting process. They are literally suing states to strike down laws that prohibit the harassment of election officials.

I'm not making this up. Literally, they are saying that they have free speech rights that are being infringed by laws that prevent you from harassing or intimidating election officials. That's one category. The other is they are challenging laws that simply make voting more accessible to people. For example, in several states, they are challenging laws that say that ballots cast by election day can be counted. These are cast before election day, postmark for Election Day but come in the day after. They want all of those ballots thrown out. That's the kind of litigation, frankly, that just didn't exist before this election. There's just a lot more stress being placed on the system.

David Remnick: Let's get down to some brass tacks. Georgia's State Election Board recently voted to change the rules of certification to allow for local election officials to investigate ballot counts before certifying those results. This sounds like minutiae, but in fact, if I have you right, it's an insidious change.

Marc Elias: Absolutely, it's insidious. It's someplace between insidious and insane. This is equivalent to saying at a football game that we're going to give the scoreboard operator the opportunity to investigate for themselves whether a touchdown was scored. The job of the certification boards in these states is normally described as mandatory or ministerial. Their job is to take the results that they have and put them on state-approved forms to sign those forms. Then everyone takes a photo together and celebrates democracy.

The history of the certification process in the United States was part of the reinforcement mechanism of democracy. It is part of what I sometimes call the pageantry of democracy where after an election is hard fought, the local election officials at the county levels, on a bipartisan basis, come together and congratulate themselves for a job well done. Then sending those forms onto the state, where then another group of bipartisan officials self-congratulate themselves for a job well done. Again, a bigger certificate is filled out with maybe now calligraphy, and then it goes to the governor, and then a bigger form, yet still is filled out, signed by him, and that definitely has calligraphy, and it almost certainly has a ribbon.

Those forms get sent to the House of Representatives and the National Archivist, and then those are put in a wooden box and are opened to great fanfare by the Vice- President, and it is that pageantry of democracy that takes the unofficial results, and through reinforcement mechanisms has everyone feel like whether they are candidate won or lost, it was a job well done.

David Remnick: These rule changes have just been challenged by the Democratic Party. A lawsuit was filed before a state judge in Atlanta that claims that these rule changes actually violate state law which requires the State Election Board to certify them.

Marc Elias: Look, the fact is that the requirement in Georgia law is that the boards that do the certification do the ministerial mandatory act of certification. There is nothing in the law that gives them more than that, and that they do it by a date certain. That date certain is in the law as well. What you have seen is that this sleepy board got a shout out at a Donald Trump rally.

David Remnick: Exactly. Let's listen to that shout out. Listeners might have actually heard Trump praising these Georgia State Election Board officials by name. Let's listen to that. At least one of them was actually there.

Donald Trump: "I don't know if you've heard, but the Georgia State Election Board is in a very positive way. This is a very positive thing, Marjorie. They're on fire. They're doing a great job. Three members, Janice Johnson, Rick Jeffares, and Janelle King. Three people are all pit bulls fighting for honesty, transparency, and victory. They're fighting."

David Remnick: Pit bulls fighting for honesty. What do you make of that?

Marc Elias: I think we sometimes become immune to the abnormality that is Donald Trump. This is a presidential candidate at a political rally, calling out by name three of five members of a state board whose job is to pass regulations for the conduct of voting and vote counting. This is not a prominent body of people. This is not a body that is normally viewed in political terms. Donald Trump called them out by name, and note, and this is something that I think has not been focused on enough by the media. He only called out three of the five. In fact, he acted as if it was a three-member board. There are five members of the board, but he only called out the three that are in the majority on these rules that he likes.

David Remnick: Now is the only possible response to this to just get out the vote and win by a lot.

Marc Elias: Here, I am somewhat at odds with some of the messaging that other people have. Yes, everyone should vote. Yes, it is critical that everyone make sure they are registered, double-check their registration. They have a plan to vote and vote. Yes, it will be good for democracy and good for the country if Kamala Harris wins in a landslide. That said, we cannot create a two-tier election system in which one candidate has to win by one vote and the other candidate has to win by a landslide.

In fact, it's even worse than that, because Hillary Clinton got 3 million more votes than Donald Trump in the popular vote. Joe Biden got 7 million more votes than Donald Trump in the popular vote. We cannot set up a system where, in addition to the natural bias that the electoral college has in favor of Republican candidates, which are the rules, those are the rules set out in the constitution, that we then set an even higher bar, an artificially high bar, that somehow Democrats have to win in landslides, otherwise they are legitimately contested. Whereas when Hillary Clinton loses narrowly in three states, she's expected to concede. When John Kerry loses narrowly in one state, he's expected to concede.

Look, I think the reason why I am concerned about 2024 is, let's talk about what's happened since then. Donald Trump, not that long ago, said that he believes he didn't just win Nevada, Georgia, Wisconsin, Pennsylvania, and Michigan. Those are the five states he contested in 2020. He also said he believes he won Minnesota.

David Remnick: He just said if Jesus were counting the votes, he also won California.

Marc Elias: Right. He lost Minnesota by 7%. Also recently said that he believes he either won or will win, or both, New Jersey and New York. Most recently, as you point out, he's added California to that list. I think we need to take him both literally and seriously. One of the worst pieces of advice we got was at one point to say, to take him seriously, but not literally. I believe Donald Trump is going to say after Election Day in 2024 that he won all 50 states, that there's no state he didn't win.

David Remnick: Possibly 51.

Marc Elias: 51, if you include the District of Columbia, correct, and like that is just the pathology that is Donald Trump. Trumpism ultimately can't yield to anything other than Donald Trump's pathology.

David Remnick: What are some of the other tactics, Marc, that are currently being used to sow doubt in our electoral process, and what have been the most effective among them?

Marc Elias: Yes. I think that one of the big tactics that I am worried about are mass voter challenges. Many states for decades have had laws that say, if you happen to know that your uncle died or is moved out of state, you can notify the county and say, you know what, my uncle died or moved out of state, and their name would then be removed from the list or put in a pile of people who probably shouldn't be able to vote.

What we saw after 2020, and the timing of this is very important, because it was right after 2020, it was in connection with the runoff Senate elections in 2021, which were in January of 2021. We saw the Republican Party react to Donald Trump's laws in the days afterwards by filing 364,000 challenges in connection with those Senate elections. Think about that. 364,000 people had their right to vote challenged by Republicans and their allies, leading up to those Senate elections.

Now my team and others, we litigated those, and there was a lot of organizing, and counties, frankly, didn't know what to do with them, so they disregarded them in many instances. What did Georgia do? Georgia came back and passed a new law to make it harder to dismiss challenges and easier to challenge. In 2022, we saw another hundred thousand challenges in Georgia. When those didn't succeed, what did Georgia do? This year they came back with another law to make it easier to challenge voters and harder to defeat challenges. It's not just Georgia. We have seen tens of thousands of voters challenged in Texas. We have seen tens of thousands of voters challenged already in Nevada. We have seen challenges launched in Pennsylvania, mass challenges launched in New York.

David Remnick: What percentage of these challenges would you say are even within the realm of reasonable?

Marc Elias: Close to zero. These are challenges that are created off of right-wing technology platforms using large data sets, AI, whatever it is, and they generate these mass spreadsheets of names. They are generated by voter suppression outfits or individuals who are misguided, who then submit them to the counties. It is a real challenge. We face the possibility that in 2024, we will see more voters have their right to vote challenge than in any time since the passage of the Voting Rights Act and the Jim Crow South.

David Remnick: Marc, it's been reported that Kamala Harris's legal team is ten times larger, ten times larger than Joe Biden's legal team was in 2020. Why is the scale so much larger, and what are they looking at this time around that they weren't looking at last time?

Marc Elias: Look, I think that the scale of the problem in 2024 is at least ten times what we thought the problem was in 2020. I won't say it's ten times larger than the problem was in 2020, but the--

David Remnick: The anticipation.

Marc Elias: The anticipated problem. Let's be clear. In 2020, Donald Trump and his allies launched 65 separate lawsuits to try to overturn the election in five states.

David Remnick: Now maybe this is outside your immediate realm, but the outcome of all of this last time around was an insurrection on Capitol Hill on January 6, and election denialism was at the heart of that. Does the potential for greater violence keep you up at night when it comes to the post-election period.

Marc Elias: Everything keeps me up at night about the voting process and the post-election period. I think that the fact is that if you look at the median or average, either one, where Republicans were at this point in 2020, and you look at where they are today, they have shifted markedly against democracy. Here's one way I measure this. There is no Republican official, elected official, more responsible for the insurrection and the lead up to the insurrection on Capitol Hill than Mike Johnson.

Mike Johnson at the time was a backbench Republican from Louisiana, and he organized the Republican members of the House to file a brief to throw out the election results in four entire states. This was an effort led by Texas to go to the US Supreme Court, and Mike Johnson organized 126 Republican members of the House to sign on to that brief. That was the organizing effort for then the night of January 6 when they voted against the insurrection.

David Remnick: He's now the Speaker of the House.

Marc Elias: He's now the Speaker of the House. If you had a similar brief today, do you think there'd only be 126 Republicans? No, there'd be 200 Republicans in the House signing onto that brief today.

David Remnick: Marc, if you had to predict, what does the morning of November 6 look like in a very tight race?

Marc Elias: First of all, I think everyone needs to be prepared about two things. The first is that Donald Trump will declare victory at some point, either before the polls close or certainly before the ballots are counted. We will wake up on the morning of November 6 almost a certainty, with Donald Trump having declared victory.

The second thing is that I expect that you will have immediate claims on the Republican side to that the ballot counting needs to stop and that ballots still being counted are fraudulent. We saw that in 2020, but I think we're going to see it in much greater effect in 2024, which is why they are in state after state trying to do what they can to cast doubt on ballots that are not fully counted by Election Day.

David Remnick: Well, it looks like a pretty grim picture. No matter what the vote counts, it looks like chaos is almost inevitable.

Marc Elias: I don't think chaos is inevitable. I think vote denial is inevitable.

David Remnick: Is there a difference?

Marc Elias: Yes, because I think that Donald Trump can lose, and there not be chaos. I wouldn't describe the post-election litigation in 2020 as chaos. It became chaotic, obviously, around January 6. It is possible that we see that in 2024, where Donald Trump has lost. Everybody knows Donald Trump has lost, and there is cleanup to be done around it, but it's not chaotic. I think what we won't have is what we had in 2016, which is a candidate, in that case, Hillary Clinton, who graciously conceded the election when she lost, or in 2012 when we had that, or in 2008, or in 2004, or in 2000.

David Remnick: Are you telling me that there's no way Trump graciously concedes or that neither candidate graciously concedes?

Marc Elias: I don't think there's any chance Donald Trump does. Look, I was the general counsel for John Kerry's campaign in 2004. As contentious as this moment is, you remember 2004 was a contentious moment, particularly for Democrats. We had felt like the 2000 post-election had led to a stolen election, or at least a disputed election. It was very, very hard to have a conversation with John Kerry in which I said to him, you do not have a path to win a recount in the state of Ohio, and he conceded.

In 2016, I had to tell Hillary Clinton, as her general counsel, that there was no path to overturning very, very close results in three states after she had won the popular vote against Donald Trump, of all people. That's where the votes were. Look, I'm not saying that I get to be the first say or I get to be the final say. I don't. Candidates make their own decisions about what to do, but Democrats have a history of accepting the reality of election results. Until Donald Trump, by the way, I could cite examples of Republicans who had a history of accepting reality on the election results.

[music]

David Remnick: Marc, thank you so much. It's good to talk with you.

Marc Elias: Good to talk to you.

David Remnick: Marc Elias, he runs the Elias Law Group that's working for Vice-President Kamala Harris's campaign.

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