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Speaker 1: The midterm elections are seven weeks away and they're often cast as a referendum on sometimes a reckoning on the President and his party. This year, however, some see democracy itself on the ballot and one of those people is Marc Elias. He's a lawyer and a staunch Democrat, but even Steve Bannon has said he admires Elias saying he's crazy, but a fighter.

Elias is fighting some of the most high-profile cases involving voting rights in the United States. The Supreme Court will hear two of those cases in its upcoming term, which starts next month. Staff Writer Sue Halpern recently profiled Elias for the magazine and as she was reporting her piece, Sue could often only reach Elias late at night. Sometimes past midnight but recently, she caught him at the relatively civilized hour of 8:00 PM.

Sue Halpern: It seems to me given the fact that every time we talk, you're sitting at your desk, and it's late at night, that this work is no longer a job. It feels to me that you've found something that you are so passionate about that you can't stop. Which made me think that maybe you sleep in your chair.

Marc Elias: No, I don't sleep in my chair but I wake up thinking about this. I work all day at it. I spend my weekends worrying about this. I really believe that when the history books are written, what they write about our generation will be whether or not we were able to preserve democracy, or whether we were the generation that lost it.

Sue Halpern: That's the way Mark Elias sees his work, as saving the soul of the country. When I spoke to him via Zoom, he was at home in Northern Virginia, in his makeshift TV studio, complete with a backdrop of photos of his dogs. Elias is a political lawyer. He told me his job is to help Democrats win elections. He was counsel to Hillary Clinton's presidential campaign, and he's also worked for Bernie Sanders but his mission has expanded.

Exactly a year before we spoke, he founded his own law firm, the Elias Group that's focused primarily on beating back efforts to undermine democracy. You once told me that you were born a Democrat? What was it like growing up in your house? Was it super political? Why do you know that you were born a Democrat?

Marc Elias: I was born in a New York, Jewish New Deal family, and it never occurred to me, that growing up as the child of two parents who grew up in the Great Depression and were Jewish, that you could be anything other than a Democrat. My family wasn't super political but it was never a question that my family were Democrats.

Sue Halpern: It was just in your DNA somehow.

Marc Elias: I think the sense was that Franklin Roosevelt, and then John Kennedy, that they had done a lot for Jewish Americans, that there was a welcome place in the Democratic Party for immigrants in other racial and ethnic minority communities and that that was what the Democratic Party represented. Also, I didn't grow up wealthy. The Democratic Party was the party of people who didn't have millions of dollars.

Sue Halpern: You're working on a couple of cases that are going to be argued at the Supreme Court and the next term, specifically thinking about Alabama, and also North Carolina. I'm wondering if you could just take us through that a little bit. What's at stake in Alabama? What's that case about? Then, similarly, with North Carolina, which are very different.

Marc Elias: Sure, they're very different. Let's talk about them in that order, which is the order that there'll be heard by the Supreme Court. The Supreme Court will begin its term in October, as it always does, and one of the very first cases it will hear for argument is a case out of Alabama that involves the redistricting that took place after the last census.

After the 2020 census, the state of Alabama drew one district in which Black voters could elect their candidate of choice. We believed and our clients believed that Alabama should have to draw two districts that Black voters could elect their candidate of choice.

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Sue Halpern: The significance of the Alabama case is that it has the potential to gut a significant part of the Voting Rights Act, which is the part of the Voting Rights Act is called Section two that makes it unconstitutional, illegal to disenfranchise voters on the basis of race. Essentially, this case has the possibility of making it impossible in the future for other communities of color to use the Voting Rights Act to seek relief for discrimination.

Marc Elias: We sued, and we won. What's important for people to realize is that this case that we brought under the Voting Rights Act, was heard by three federal judges. Two of whom were appointed by Donald Trump, one of whom was originally appointed by Ronald Reagan. This was not exactly a [unintelligible 00:05:57] [laughs] court and they found in our client's favor, they found that the Voting Rights Act, in fact, required the construction of a second block district. That case was then appealed to the US Supreme Court and the US Supreme Court is going to hear that case.

Sue Halpern: What are you going to argue? What's the strategy?

Marc Elias: Our argument is really straightforward, which is that the Supreme Court has for 30 years had a standard, and unfortunately, in states like Alabama, there are still high degrees of racially polarized voting where white voters simply won't vote for the candidate of choice of the Black community.

Sue Halpern: Tell us about North Carolina, what's going on there.

Marc Elias: I will predict right now that next June or July when we're at the end of the Supreme Court term, that the biggest case of the term will be Moore v. Harper. Here, what happened is the North Carolina legislature passed a hideously gerrymandered map. Again, a congressional map. We brought a lawsuit on behalf of a group of individual plaintiffs, the lead plaintiff being someone named Harper.

We brought a lawsuit under the North Carolina State Constitution. The North Carolina Supreme Court said yes, this violates it and ordered a new map, a fairer map. The Republican legislature of North Carolina has now brought that to the US Supreme Court and this is a very, very, very dangerous case. Because their theory and it is just a theory, it's not anything that any court has ever adopted.

Is that where the US Constitution says that the redistricting or the setting of congressional boundaries is determined by the state's legislature, that means only the legislature and not the courts. It essentially eviscerates state judicial constitutions and state judicial review of state legislative acts involving federal elections. Look, this is a cousin, more like a brother, half brother, maybe of the argument that Donald Trump made after the 2020 election when he said the state legislatures should go ahead and appoint alternate slates of electors.

Sue Halpern: Spin it out. If they buy that argument, what are the implications?

Marc Elias: Look, one of the first cases you read in law school, one of the most famous Supreme Court cases of all time is Marbury vs. Madison, which stands for the proposition that legislatures enact laws and courts have the final say on whether the laws are constitutional. Our system of democracy can't rely entirely on every conceivable act of politicians and political actors being anticipated.

We have to have a system in which there are certain norms respected. One of those norms is a court tells you this is unconstitutional so you do something different. What we have lost in the Republican Party is any sense of shame or decency, and therefore they don't abide by those norms.

Sue Halpern: Who is supposed to hold them responsible to the norms?

Marc Elias: It is ultimately the job of all of us as citizens. That's the part, Sue that I'm not sure is working because what you need is the citizens saying, "Look, we understand the game you're playing but we're not here for it. We're not going to support you if you play these games. In fact, you're going to pay a penalty. You're going to pay a penalty that goes beyond this place and this time and this election." I'm just not sure that that's happening right now.

Sue Halpern: One of the things that I know that you've encountered from your critics is this idea that the Supreme Court is now extremely right-wing conservative, as are many state courts, and that in bringing cases that you have the potential to lose, as in any case, you also have the potential to have set pretty bad precedent. What's your response to when people say, "Mark, you should not be bringing these cases. Don't bring Alabama, don't do this because look what's going to happen."

Mark Elias: What's interesting is that I don't get that from the voters. I don't get that from the people living under these systems. The Black voters of Alabama want fair representation in Congress. It is easy for people in very comfortable circumstances to be playing a long game when the voters are actually suffering in real time. What are we saving these precedent for?

If not now, when? We're there guys. We're not saving all of this for the future. If we don't use the tools we have to save democracy today, then we may have a wonderful museum of unused tools in the future but we won't have a democracy to use them in the future. Therefore, you really can't worry about what the precedent is going to be for 10 years from now or 20 years from now.

Sue Halpern: We are about month and a half away from the election, is that about right? I'm wondering given the work that you've been doing, I know that you filed a case today actually in Nevada. Do you anticipate more voting rights stuff coming down the pike between now and then or is it too late?

Mark Elias: It's a really good question. We are beginning to see a steady stream of efforts by Republicans and conservatives to prepare to subvert the outcome of the election by either disqualifying large numbers of voters for specious or no reasons or setting up counting rules or systems that will not accurately count ballots or simply refusing to certify accurate results.

We've seen a little bit of all of that in the last few weeks and that is a growing and worrying trend that I expect we will see in the coming weeks and then in the immediate aftermath of the election. The largest voter challenge or disqualification we've ever seen as a country was in 1964 in Alabama and Mississippi. The second largest was in 2021 in Georgia where Republicans challenged the eligibility of 364,000 voters, which was 8% of the total number of votes cast in the runoff Senate elections.

We were able to beat that back in court. We were able to say to judges this is ridiculous. You can't do this but as we sit here today, there have been more than 65,000 challenges already lodged this year. This year, 65. We're only in the beginning of September. 37,000 of them were lodged in a single county today, Gwinnett County. This was 37,000 challenges on one day in one county. It is a mass challenge and it's not just Georgia. We have seen Republicans gathering the tools to do this throughout the country and we're starting to see evidence of them do this in other states as well. It is election vigilantees and we cannot let it take hold.

Sue Halpern: This is important because when Governor Kemp, the governor of Georgia signed one of the most restrictive voting acts ever last year, one of the parts of it says that anybody in the state can challenge the legitimacy of any other voter, as many challenges as they want to, bulk challenges to voter after voter after voter. In this case, they were doing it on the basis of discrepancies in their addresses. It's a swing district. There are more people of color there. There are more Democrats there than there had been before.

I think that as Mark looks at what's going on in the country, particularly with respect to restricting people's ability to vote, he sees it as a David and Goliath story. Obviously, he has a lot of resources, but nonetheless, there is a sense in which there are these big powerful forces that he and his team are trying to push back. When we spoke, he kept coming back to this story of a prisoner of war who came to his bar mitzvah class when he was 13 and it seemed to me to be the story that really defines him and motivates him.

Mark Elias: He had been an American citizen who had been captured by the Nazis Jewish soldier who was put out in a work camp. For a period of the season, they picked potatoes and he told us and it's vivid in my head that he and the other Jewish prisoners of war in this camp got little pieces of barbed wire and press them against their fingers to poke holes in the potatoes so that the potatoes would rot.

Just think of the futility. You think what I'm doing is obsessive and perhaps futile. Here's a 19-year-old kid, far from home, trying to destroy the German war effort by rotting potatoes by poking holes with barbed wire and his bare hands one at a time. That has stuck with me, so I'm going to be poking holes in the potatoes until there's nothing left to poke holes in.

Sue Halpern: How do you get other people to poke holes too? You've now assembled 70 some odd people to poke holes. How do you get people to be that passionate alongside you?

Mark Elias: I think part of it's a success and part of it's a failure. The success is what you just said. We've been able to recruit a tremendously talented group of lawyers who are passionate about this. Gen Z and young millennials get a lot of bad rap, but not from me and my firm. The passion that they have for progressive issues really aligns with our law firm. We don't have trouble finding really, really talented excellent lawyers.

The place where I have failed candidly is I'm not sure I'm reaching the people who are listening to this podcast. I don't feel like Americans understand and prioritize what is happening. That is where I feel like the greatest need is but I feel like I am not accomplishing what I need to. I'm not optimistic. I'm just going to do everything I can.

Speaker 1: That was political lawyer, Mark Elias and he was interviewed by Staff Writer, Sue Halpern.

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