Preet Bharara:

Marc Elias, welcome to the show.

Marc Elias:

Thanks for having me.

Preet Bharara:

It’s great to have you. I should point out to folks that we go way back from my time in the senate back in, I think 2005 when I think you helped me understand for the first time how certain campaign finance laws work. So I want to thank you for, I think, multiple tutorials you gave me back in the 2000 aughts.

Marc Elias:

I think that’s right. Although I don’t think you should thank me for knowing that. It was pretty arcane as I recall.

Preet Bharara:

I thought I understood aspects of the law fairly well when I came there. I’d been in AUSA for five years. But campaign finance stuff made my head spin more than almost anything else I worked on in the Senate.

Marc Elias:

Yeah, it’s a complicated area of the law, both because it’s heavily regulatory, and also because the courts have been so active in rewriting so many of the campaign finance law. So it’s one of these areas where you look at the statute, and it bears very little resemblance to what the actual law in practice winds up being.

Preet Bharara:

Can I ask you a question, how are you even able to do this podcast? Shouldn’t you be in court? I don’t mean to be overly humble. But there’s lots of cases going on. What are you doing here?

Marc Elias:

Yeah, so we have 36 cases pending in federal and state court. The good news is that I’ve got a big team of lawyers who are working with me, so that’s good. The bad news, which has actually facilitated this is COVID, so that so many of the court appearances now are remote. So the days of having to jump from plane to go to courthouses is on hold.

Preet Bharara:

It reminds me the time when I was the US Attorney, and I was getting off the train at Grand Central. And it was in the midst of this big insider trading trial, one of the big early ones against Raj Rajaratnam and a guy … The commuter comes up to me and he says, “Aren’t you that guy, Preet Bharara?” And I said, “Yes,” he’s like, “Well, what are you doing here?” I think it was like 9:40 in the morning.

Marc Elias:

You’re late.

Preet Bharara:

And he said, “Shouldn’t you be in court?” I said, “What?” He’s like, “That guy, that insider trading guy.” And I said, “Raj Rajaratnam.” He’s like, “Yeah, shouldn’t you be in court?” And I said, “I’ve got people for that.” So you have a lot of people, too, Marc.”

Marc Elias:

Yeah.

Preet Bharara:

How many people do you have?

Marc Elias:

So my group is 53 lawyers. But we actually have more than that right now working on different aspects of different cases.

Preet Bharara:

So we have a lot of things to talk about. You and I had a conversation a few weeks ago, in which you scared the bejesus out of me, and I wanted to [crosstalk 00:02:36].

Marc Elias:

It’s the only reason you had me on your podcast.

Preet Bharara:

Well, look, one reason you’re on obviously, is because you’re the nation’s foremost expert in a lot of these issues on voting and everything else, and you’re fighting hard to make sure that every vote counts, particularly democratic votes. But also you’re very blunt. We’re recording this on Monday, 29 days before the election, October 5th, not before the election before the election ends, I should say to be more accurate. And I think people need to understand what’s at stake, not just what’s at stake, but how things can go wrong, and how they can most effectively make sure that their vote counts and other people’s votes count. So can we dive into one of the thickets?

Marc Elias:

Sure.

Preet Bharara:

Mail-in voting.

Marc Elias:

Yeah.

Preet Bharara:

And there are a lot of pitfalls to mail-in voting. So I thought we would go through some of them. So as an initial matter, millions of mail-in votes have already been cast, right?

Marc Elias:

Correct.

Preet Bharara:

How is that going so far from your perspective?

Marc Elias:

As you pointed out, millions of people have already gotten and filled out in return their mail-in or absentee ballots. And contrary to what the president was saying, for a long time, those two terms are synonyms. The Republicans seem to now acknowledge that. So whether you call it absentee or mail-in, millions of ballots have been returned.

Here’s what we know. Number one, it does seem like there is a wide adoption of mail-in voting. So the number of ballots that have been returned exceed by a multiple, the comparable numbers four years ago or two years ago. They seem to be more democratic. In other words, more registered Democrats are voting by mail or returning mail in ballots than Republicans. And in the states that we have data from, we are tracking rejection rates. And I think that that’s an important thing for people to keep in mind is that when you vote in-person, the chances that your ballot in-person doesn’t count are infinitesimally small. When you vote by mail, some number of ballots that get cast by mail wind up getting rejected. And that’s what a lot of the focus of the litigation I’ve been involved in is on. And it’s something when you look at the primary data in different states, you saw some states had alarmingly high rates of rejections. Others had more typical rates.

Preet Bharara:

I want to get to the rejection issues in a second, but first the divergence between voting by mail for Democrats and Republicans. What do you attribute that to?

Marc Elias:

It’s really an interesting phenomenon. I attribute it mostly to the president’s misinformation and rhetoric. The truth is historically there has not been a partisan benefit to voting by mail. And there really hasn’t been a partisan divide as to who votes more by mail. Older voters oftentimes vote more by mail, and they have in recent years trended Republican. On the other hand, Democrats have tended to, in very recent times advocate that their voters vote by mail. So you’ve seen more democratic male voting, but it’s usually a pretty narrow window, or a narrow gap between the two parties that vary state by state. This election cycle, that is not true. And it’s almost certainly attributed to the fact that the president told so many lies, and tried to bad mouth voting by mail so aggressively.

Preet Bharara:

Have you seen a change in the trend because of the president saying what he’s saying, and because of concern that we’re going to get to in a few minutes about how ultimately, some mail-in votes may not be counted? I’ll give you an example. My own family we were going to vote by mail, we have the luxury of being able to vote early in New York State and plan to do that in-person. Are you seeing a shift back on the part of Democrats to voting early in-person versus voting by mail? Or is the trend line continued?

Marc Elias:

It’s really hard to tell. We are still 29 days as of today when this is being recorded. We’re still a month out from the election. So it’s hard to know how many people get a mail ballot, and then just decide to turn it in and vote in-person instead. And we won’t know that until early voting really becomes more widely available in more states. Right now there are only a handful of states that are doing early voting. So we won’t really know until that period begins as to how much you … We will see definitely for sure even absent the president’s rhetoric. You always have some people who get a mail ballot, and then just decide at the last minute or not necessarily last minute, you know what I can vote in-person, so I’ll show up.

Preet Bharara:

Yeah, you might drive by and see what the line looks like.

Marc Elias:

No, that’s right.

Preet Bharara:

Okay, so rejection of mail-in ballots, what are the primary reasons why a mail in ballot would get rejected? And then, of course, could you address the circumstances in which that disproportionately affects, as I understand it, black voters, women voters and young voters?

Marc Elias:

Yeah, so the biggest reason across the board why mail ballots are rejected, is late received. So they simply come in too late. And there are in rough strokes, there are two kinds of states. There are states where if your ballot is postmarked by Election Day, it counts and states where it has to be received by Election Day, regardless of when it was mailed. And particularly in those states that have that second rule where it has to be received by Election Day, we tend to see large numbers of mail in votes that are rejected because they simply arrived too late.

So to put some numbers or perspective on that, in the Wisconsin primary election in April, we sued over this issue, over whether bouts had to be postmarked by Election Day or received by Election Day. Wisconsin law says it has to be received by Election Day, we sued to say it should be postmarked by Election Day. That issue went up to Supreme Court, we won on that one issue. And the net result was that 80,000 votes counted that wouldn’t have. It’s actually a really interesting election to study. And I think social scientists will study it because it’s an example of because the postmark rule was adopted by the court so late in the process, it’s a really good measure of how many votes, what the effect is of the switch in that rule. 80,000 votes in the primaries is a lot of votes.

Preet Bharara:

Did that change the outcome in the new race?

Marc Elias:

I don’t know. Actually, I never went back and looked. There was a judicial election for supreme court justices. And there were local elections. And I don’t know, but it very well could have.

Preet Bharara:

Yeah.

Marc Elias:

But the other thing you say Preet though, which I think is important is that it would be a problem for our democracy if we had say, a 1% rejection rate, which is the typical rejection rate of mail ballots in a normal year, this is not a normal year. That would be sort of not great for democracy. I wrote an article talking about the epidemic of uncounted ballots, and how that’s not good for democracy. I wrote that back in January before the pandemic. But the problem is that when you look at who’s in that 1%, you find some alarming trends.

So you all probably remember that in 2018, there was a close Senate election in Florida, Bill Nelson lost by one 10th of a percent to Rick Scott. And there was a close gubernatorial election, Andrew Gillum lost by four tenths of a percent to DeSantis. A bunch of political scientists went back and looked at the data of the rejections in that election. Now, that was before COVID. That was before any of this right? It was a midterm election, but Florida’s got pretty active vote by mail availability. And what they found was that if you were 18 to 21, the rate of rejection was 5.4%. If you are over 65 it was 0.6%. If you were black or Latinx, your rate of rejection was over 2%, close to two and a half percent in some instances. If you were white, it was under 1%.

So we simply weren’t rejecting these ballots at the same rates. So it had a distortive effect. The rejection rules had a distortive effect in disadvantaging young voters, and voters of color relative to older voters and white voters.

Preet Bharara:

Can I ask a preliminary questions?

Marc Elias:

Yeah.

Preet Bharara:

So that when the ballot is received on the face of the ballot, one does not know the age of the voter, or the race or ethnicity of the voter, right?

Marc Elias:

Well, you won’t know the age of the voter typically. But race and ethnicity can be sometimes imputed just by looking at-

Preet Bharara:

Deduced from names.

Marc Elias:

Yes, exactly.

Preet Bharara:

But that’s for the easy one first or may be the hardest one. Why are young people being rejected at such a high rate?

Marc Elias:

I mentioned that late received is the most common reason. The other reasons for rejection are in most states, not every state, but most states are signature matching issues. If you’ve ever voted absentee, you sign the outer envelope. Well, the reason why you sign that outer envelope, the return envelope is that when your ballot is processed by the county that it comes back to or the municipality, they compare the signature on the outer envelope with the signature on file. Now again, this is not true in every state, but it’s true in many states, including Florida. And a surprising number of ballots in our elections are discarded because the officials believe that the two signatures don’t match. And particularly when you look at young voters, you oftentimes have both higher rates of rejection based on late received because they tend to vote their ballots later than older voters. But also signature matching tends to disadvantage younger voters because they simply have not grown up in an age in which consistency of signature is a main source of confirmation of identity.

Preet Bharara:

They don’t write checks anymore.

Marc Elias:

They don’t write checks anymore, but even [crosstalk 00:12:30].

Preet Bharara:

It’s all Venmo. You don’t have to sign on the Venmo.

Marc Elias:

Yeah, but even when they write checks, and I hesitate to say this to former US Attorney for the Southern District of New York, but my sense is that when I was growing up, at least I always believed that when I was growing up, and you signed a cheque, there was actually some bank somewhere that was comparing the signature on the cheque with the signature on my account. And that clearly doesn’t go on anymore, right?

Preet Bharara:

I was worried about and I also suppose in my head that all these people at these banks and other places where some form of signature, or handwriting expert, which of course they are not.

Marc Elias:

Right. And the same with credit cards, remember, you used to have to sign your credit card receipts. And they used to keep a copy of the credit card receipts signature, again because there was some sense that that signature was going to be a important piece of the validation that it was your credit card or that you charged it. And that of course has become less common as well.

Preet Bharara:

So just before we go into what the other discrepancies are about, is the time for signature matching over? Is that obsolete, or is there any other way to deal with that?

Marc Elias:

Yeah, so there are other ways that states deal with it. I do think that there is for 2020, the states that do signature matching verification, that’s going to be in place, I think you need to tackle signature verification in two buckets. The first is, you need to recognize that there is a problem of over rejection of ballots based on signature matching. I think and I could have this number off by a little bit, but I think in the last election in Colorado, they rejected 16,600 ballots based on signature match. And like, that’s just not plausible that there were 16,000 people who cast a ballot, that it wasn’t their ballot, right.

Preet Bharara:

Right.

Marc Elias:

So we number one in the short-term, we need to make sure that the people doing the signature matching are giving the benefit of the doubt to the voter, and that individual people are not disenfranchising voters without multiple levels of review.

Preet Bharara:

Right.

Marc Elias:

So some states say they have to be reviewed by three people of different and at least have one person of each party. That’s one way to do it. Some building actually a presumption of match. That’s another way to do it. So that’s one piece of the equation. The other which is the most important is that voters need to be notified that there is a discrepancy or alleged discrepancy and given an easy way to cure it. In other words, a way to fix it.

So in some states, believe it or not, if your ballot gets discarded based on signature match, they don’t tell you. So you never know that your ballot didn’t count. And that’s wrong, every state should have to tell you that your ballot is being questioned based on signature and give you an opportunity to contest that finding or to cure it by providing another signature. So that I think is the important in the here and now. But there are longer range ways to move from signature matching verification to other forms of verification.

Preet Bharara:

Right. So let’s tell people who were young, between the ages of 18 and 20. I guess, everyone, if you’re voting by mail, develop a consistent signature.

Marc Elias:

Yeah, or at least to use the same signature that you used when you registered and applied for the mail ballot. And one of the reasons why you see a greater rejection rate among young voters here is because very oftentimes young voters are registering on trackpads or on digital devices, and therefore their signature doesn’t look the same when they sign it with a wetting paper and pen signature.

Preet Bharara:

Right. So what about African American voters?

Marc Elias:

So there is data and I don’t want to overstate this because I’ve not seen a peer reviewed study that pulled this piece out. But there is clearly some aspect of signature matching rejection that is influenced by non anglicised names. So it’s not just African Americans, it’s Hispanic surnames. It’s Preet Bharara, for that matter, that the more anglicised your name, the less often it is rejected based on signature matching, then less anglicised names. Now-

Preet Bharara:

And that’s some kind of innate bias, you think [crosstalk 00:16:44].

Marc Elias:

yeah, I think that that’s something innate, that’s something unconscious. Now, there are states when this has been looked at, they realized that the person doing the signature comparison, understand the person doing the signature comparison has the envelope in front of them, and then they have a screen image of the signatures on file. And there have been a couple of states where they’ve noticed that when they pull up those signatures on the screen, they are pulling up the full voter registration card, for example, that may have race on it.

Preet Bharara:

I see.

Marc Elias:

Right, so it’s important that states move away from providing those other kinds of cues of race or age or ethnicity because there are states that maintain that data, but it shouldn’t be available to the person doing the signature matching. The other issue facing minority voters in general is, again is the issue of late received, because we know that there are even when the Postal Service’s working properly, we know there are differences in the mail delivery times from different zip codes. And oftentimes, you see more affluent zip codes have faster mail delivery than less affluent. So there are a lot of pieces that go into why mail ballots get voted later and get delivered later. But that I would say would be the other the other big piece.

Preet Bharara:

Are you in a position to give advice to folks now as to whether they should vote by mail? Or vote early in-person if they’re able to? Or do you stay away from that?

Marc Elias:

Here’s what I tell everyone. Okay. Number one, the most important thing is to make sure you’re registered and make sure you vote and make sure you vote early. Now, if you want to vote by mail, it means you should apply for and get your mail ballot as soon as you can and vote it as soon as you can and return it as soon as you can. Because to be honest with you, most of the problems we’re talking about with mail balloting get cured or are curable. If you cast your ballot early, right?

The biggest problems we’re talking about mail ballots are things that happen when people wait and don’t vote their mail ballot right away. And then there is a problem. And it’s either too late to fix it or it arrives too late. So if you want to vote by mail, by all means vote by mail, but do it early.

Preet Bharara:

By what method should they return their mail vote?

Marc Elias:

If it’s early enough, the Postal Service is fine. If you have a drop box available in your community, drop boxes are ideal because they get picked up directly by the election officials. Some people will hand them in directly to the county and states where that’s allowed. But the key is to do it early because that will make sure it gets in on time, it gets processed on time.

If on the other hand, you are someone who prefers to vote in-person, or you have the ability to vote in-person there’s no question that voting in-person is going to lower the risk of rejection to almost zero. I never say anything is zero but voting in-person is obviously going to … By the time you walk out of that voting booth, you’re going to know or certainly out of a polling place, you’re likely to have seen your ballot go into a machine and counted. So for people who don’t want to rely on the mail service or rely on dropping off a mail-in ballot, or all of that, voting in-person is always going to be, in some sense, a better alternative.

Now, again though, I would caution you that that’s a great alternative if you’re going to do it early. So if you’re in a state that has early in-person voting by all means that’s a great solution and maybe the best solution. If it’s only Election Day, I worry about people, it’s raining on Election Day, or you wind up with some issue on Election Day, and then you wind up not voting at all. So my key message is register, vote and vote early, either in-person or by mail.

Preet Bharara:

What about some of these other issues that are relevant in certain states? Are there some places still where an absentee ballot needs to have a witness?

Marc Elias:

Yeah. Talk about a arcane requirement that really is unnecessary and trips up voters. There are states that have witnessing requirements. We have sued a number of those states, we sued Minnesota and entered into a consent decree to suspend their witness requirement for this election cycle due to COVID. We actually have a case any moment, could you get a ruling on in the US Supreme Court. We sued South Carolina and the federal court there struck down their witness requirement because of COVID related issues. The Fourth Circuit En Banc affirm that and the Republicans have sought certain emergency stay in the US Supreme Court.

In North Carolina, we sued over the witness requirement. We entered a consent decree which was entered last Friday at 2:00. A federal court then enjoined that, or entered a TRO against that at five o’clock on Friday. So I just saw just before we started, the state of North Carolina has filed an appeal in that case. So there’s a lot going on in terms of witness requirements in court.

Virginia actually entered a consent decree with I think the ACLU or the lawyers committee, to spend their witness requirement. But there are lots of states that still have witness requirements, and they really do affect the ability of voters to vote because in the age of COVID, telling people that they need to go find someone-

Preet Bharara:

Can you come over [crosstalk 00:22:17].

Marc Elias:

To witness their signature, right? It’s not like you can just like … Understand that to properly witness a ballot. It’s not like you sign it and then you send it over to someone to sign, they’re actually supposed to be standing close enough to you to see you sign the ballot.

Preet Bharara:

And know you personally, you can’t just get a stranger.

Marc Elias:

That’s right. Actually-

Preet Bharara:

It’s like being a notary, it’s like deputizing a notary, right?

Marc Elias:

In Oklahoma, you need a notary.

Preet Bharara:

Oh, you do?

Marc Elias:

Yeah.

Preet Bharara:

Yeah. Anything that ever required a notary in my life, I just gave up on the thing. I’m just not going to get that thing that requires a notary.

Marc Elias:

Yeah. You know this from your work. It’s really interesting, because the federal courts have largely moved away or not even largely have really entirely moved away from notarizing requirements, except for a limited number of things like proc motions and like, but the idea of the self-affirmation under oath or sworn affirmation has replaced it and I’m not sure why that’s not more prevalent.

Preet Bharara:

Talking about the issue of so-called naked ballots. What’s a naked ballot?

Marc Elias:

Yeah, so naked ballots. For those of you who again, have voted absentee in many jurisdictions, many states, you fill out the ballot, you then put it inside an inner envelope, sometimes referred to as a security envelope. And then you put that envelope inside the outer envelope and sometimes referred to as the mailing envelope. So you fill out the ballot, you put it inside, essentially a blank envelope, and then that blank envelope inside the envelope that you fill out the information on the backup. The theory of that inner envelope is to ensure that when the person who opens the outer envelope takes out your ballot, they don’t see who you voted for.

So because your name is on the outside of the outer envelope, it’s a way of giving you the security that no one knows who you voted for. It’s meant to protect the voter. Oddly enough in Pennsylvania, the Republicans have turned what is really intended to be the protection to the voter of their secrecy of their ballot, they’ve turned it into a way to try to disqualify male ballots by saying that if the ballot does not come in an inner security envelope, then the ballot doesn’t count. So essentially, that is what is referred to as a naked ballot. It is a ballot that is in the return envelope but is not inside this inner security envelope. It is therefore naked inside the outer envelope.

The notion that we should therefore disenfranchise the voter because there’s a theoretical risk that the person opening the outer envelope would see who they voted for seems like a perverse remedy-

Preet Bharara:

Because it’s not a question of fraud. It’s a mistake made by the voter that only potentially and hypothetically harms the voter.

Marc Elias:

Correct. That’s the key, right? When we say it’s a mistake made by the voter like, it’s in some sense, yeah, it is a mistake made by them. But honestly, the voter may not care if the person opening the envelope knows who they voted for.

Preet Bharara:

But many people don’t. I don’t mind if the whole world knows that I plan to vote not for the Trump guy.

Marc Elias:

Yeah, so it’s a really weird remedy to then say, “We’re going to disenfranchise that voter.”

Preet Bharara:

But what’s the philosophy there? So it would seem that the issue is non-partisan, that has nothing to do with ideology. Is there a presumption then that Republicans are making in trying to get those ballots rejected because they believe that the mistake is more likely to be made by a democratic voter?

Marc Elias:

That is the political calculus behind it.

Preet Bharara:

Yeah.

Marc Elias:

And I think it’s important that you-

Preet Bharara:

So it’s very insulting also.

Marc Elias:

Yes, I think it’s very important that which your question is insightful as always, that people understand that the arguments that the Republicans are making in court, none of them are ideological, they are all just political. They sued to prevent states from sending out mail ballots, they sued to prevent states from providing drop boxes, they sued to prevent states from counting ballots that are postmarked by Election Day, they sued to prevent states from stopping there from being long lines. There’s no form of voting in which they are saying, “This is good, and therefore we need more of it.”

I’ve joked before that if there was any lawsuit where there was any barrier for voting, the Republicans wanted struck down, I’d probably join them. But there isn’t, there’s no aspect of the voting process that they aren’t seeking to make more difficult.

Preet Bharara:

What’s the issue related to so-called ballot harvesting?

Marc Elias:

Yeah, ballot harvesting is a misnomer. It’s a pejorative that Republicans have used for the practice of third party ballot collection. The idea is that some voters who don’t have regular access to mail service or don’t trust the mail, would prefer to have someone who they do trust, deliver their ballot in-person to the election officials, or drop it in the mail.

So the other day, I voted by mail. And I for a moment was had talked to my wife about her taking my ballot and dropping it off. And then I realized that Virginia law doesn’t allow third party ballot collection. So instead, I went and took my own ballot to the post office and dropped it off myself. Her delivering that to the post office would have been a form of third party ballot collection and delivery.

Preet Bharara:

Even just to the post office?

Marc Elias:

Sure. So one of the biggest issues of ballot collection that comes up is in Native American communities where there’s on reservation mail service. So what they will oftentimes want to do is have essentially, a collection point where people can come and drop off to their mail ballots so that one individual can then drive oftentimes an hour or more to the local post office, to then drop them off. That’s not uncommon.

We sued Arizona and struck down their ban on third party ballot collections. It’s a case that the US Supreme Court just granted cert on, so that case will be heard this term probably be argued sometime in January. The issue involved both Native Americans but also rural Latino populations, that used it as a means to make sure their ballots got in.

We sued Montana in a parallel lawsuit to a lawsuit filed by the five Native American tribes where they made exactly the point I just laid out, which is that for on reservation Native Americans in Montana, this is really the difference between being able to vote and not being able to vote.

Preet Bharara:

So the upshot for this election, given the great shift, particularly among Democrats to mail-in voting, will be as you and I have discussed, and as people have been discussing on television and in the news, that on November 3rd because of this skewing of the vote towards mail by Democrats, and given the way that most states count votes, and by what priority. In other words, prioritizing in-person voting on Election Day versus mail-in voting in most states, that it will look and some people call this the red mirage. It will look on November 3rd in the evening, that Donald Trump is leading in lots of places and leading nationally.

You told me a few weeks ago that you predicted he would be leading by a lot. What’s your prediction today as to what the official count will look like on the evening of November 3rd?

Marc Elias:

So look, it varies a little state by state, but I think that in the main, you are correct. There are a couple of important states that are exceptions to that including Florida. Florida actually does a really good job of processing their mail ballots. They won’t do 100% of them by election, but they will have processed a lot of the mail ballots before Election Day. So you could very well see if vice president Biden wins Florida on election night, the rest of the election coverage looks very, very different because it’s hard to imagine a world in which he wins Florida and [crosstalk 00:30:19].

Preet Bharara:

And is trailing in New York.

Marc Elias:

Yeah, right and doesn’t when the whole thing. But you look at other states like Pennsylvania where they don’t start processing, absent or changing the law, which is still possible. But we’re getting close there, where they don’t process the mail ballots at all until the polls close or they don’t start opening and counting them until the polls close. Then the results you’ll see on election night are going to be just the in-person voting. And if in fact, you have Democrats voting at a much higher rate by mail and Republicans voting by a higher rate in-person, it’s going to look on election night like Donald Trump has won a resounding victory in Pennsylvania when that isn’t true.

Preet Bharara:

Right. And he’s counting on that. He’s gaming for that, right?

Marc Elias:

Look, I think that that Trump’s entire plan for reelection is about delegitimizing voting, particularly voting by mail, frightening people, and hoping that that has a suppressive effect on the electorate because I think he thinks that if everyone who wants to vote votes, he loses big. And so it’s a pretty cynical game he’s playing but I think that’s the game.

Preet Bharara:

So you don’t want to give me a number as to what the race will look like on that Tuesday night?

Marc Elias:

I don’t because I don’t know. Because again [crosstalk 00:31:38].

Preet Bharara:

Can I give you some choices because it’s startling when I hear people talking about this, because everyone expects it to be somewhat close, it’s typically been close in prior elections, the electoral college aside. Is it feasible that Donald Trump could ultimately lose the election if all the votes are able to be counted, but on election night, look like he’s winning by eight, 10 points?

Marc Elias:

Sure. And in states like Pennsylvania, where they have [crosstalk 00:32:03].

Preet Bharara:

It will look like a landslide.

Marc Elias:

Yeah, right. Again, that won’t be true in Florida. But sure, in some states, that definitely could be true.

Preet Bharara:

Is Florida, the only battleground state in which the mail-in ballots will be counted along the way?

Marc Elias:

I think the other state to look at along the same lines would be North Carolina. Again, if Donald Trump loses North Carolina, then the race is over. So I hesitate to say battleground in the sense that they are a must win for Trump, they are not a must win for Biden, right? If you look at the 2016 map, for Hillary Clinton to have won, she needed to have won Pennsylvania, Michigan and Wisconsin. Her path to victory did not involve Florida or North Carolina. But those are two states that right now appear, at least based on public polls to be very close. And if those two states went Biden, or either of them went Biden, then it could be a much shorter night, I think.

Preet Bharara:

I want to ask you about how the media is going to react to all this because we’ve been talking in the realm of what the official vote is. But in most elections that you and I and our listeners have ever witnessed. Most, the race is called by some media organization or organizations. And then somebody can see it because they see the handwriting on the wall, doesn’t happen in very close races, but it happens in a lot of races. And that’s before all the ballots have been counted. It’s because people see a particular candidate for governor, for example, in the state on the Democratic side is ahead. There’s all sorts of ballots that remain to be counted, but they come from liberal enclaves. So the presumption is people do some statistical analysis. And they realize, you know what? There’s no way that the Republican is going to pull it out, or it could be vice versa in a different kind of election.

What is going to happen here, given my understanding that I think you gave me this understanding that while it is true that in many of these states, the absentee votes will not be counted until Election Day, there will be a record of who has mailed in an absentee vote, I think, in at least some states, if not many states? And given that that’s public information. So for example, if Preet Bharara votes early in the New York state election, will it be known to outsiders, media organizations, third parties, that I am known Democrat, I am a known proponent of Joe Biden, the fact that I cast my ballot must mean that it was a Biden vote. And if you take that over time, with respect to all the absentee ballots, doesn’t a pretty clear picture, potentially emerge as to how a candidate did in that state?

Marc Elias:

Yeah, and this is, I think, going to be a challenge, as you say, for the media because we are all used to the media having certain tools at their disposal. Number one, they have the unofficial returns as they start to come in, which is what we sometimes refer to as the AP numbers, but they are not the certified numbers and numbers you see on the screen on TV screens or internet screens on election nights. Those are not certified numbers. Those are unofficial returns coming in from the precincts to the counties and the counties to the state. So you’ll have that data.

The second is, you’ll be able to compare that data to historical data. So you’ll know, “Okay, well of the in-person vote, this is what this town was versus the past.” You’ll have exit polls, which people don’t talk that much about anymore, but the networks are still going to do exit polls. And that will include both in-person and also vote by mail, exit polls, which basically, they will be calling. This is all stuff that the networks and AP have announced. They’ll make be making telephone calls. So they will have a data set of people who have told them who they voted for buy absentee.

And then finally, the network’s will have what you just said, which is that they’ll have in most states, they’ll have lists of who has returned an absentee ballot. So they will know whether of the absentee ballots that were requested, which of them were returned, and there will therefore be able to have some sense based on partisan affiliation of those voters and geography of those voters. What the turnout was in New York City versus the turnout in Utica, New York, right?

So they’ll have all those tools. And the question is we’re used to, for those of us who watch election night coverage, there is always this weird dance that you see where the network anchors have access to the exit polls, but they don’t say it until the polls close. So you kind of like try to read between the lines based on their body language, right? The problem is what happens when that’s not one day, but that’s two days or three days or four days, at some point the media is-

Preet Bharara:

I’m still talking about that night because I’m just I’m just confused about this. Isn’t it true that there are states and maybe one or more battleground states? Or at least can you identify a state in which the following might be true that the majority of votes 50, 60% of the votes are cast by mail and minority the votes are cast in-person. Donald Trump is leading in the official account because of the preponderance of Republicans who voted in-person in that state, but because of general access to the demographics and the party affiliations of the other 60% who voted by mail, though they’re not counted yet. Wouldn’t a reasonable media outlet be able to predict that notwithstanding Donald Trump’s five or six point hypothetical lead in the in-person voting tally, that he will lose? And will they be prepared to call it for Biden in that circumstance? Because that makes a big difference?

Marc Elias:

That’s the question. You’ve put your finger on it. There are states like that. Frankly, New York may be one of those states. Arizona’s a state that has historically 70% vote by mail. So the answer is, yes. And if you go back to 2016, look at the network’s coverage of Virginia where Trump did look like he was winning for much of the evening, and the network’s did to their creditor eventually call Virginia for Clinton, even when it’s still looked like Trump was winning, and this is a micro example of what you are referring to. In Virginia, it’s changed since then, but it used to be that vote by mail was the minority of voting in Virginia, they didn’t have no excuse absentee voting, but a large number of people would still vote excuse absentee, particularly in Fairfax County, which is the largest county in the state.

And so there was this thing called the Fairfax CAP, the Central Absentee Precinct, it was the collection of all the mail-in votes in Fairfax County, which is the largest county in the state, a very democratic County. And until you got the CAP number in, it looked like Donald Trump was winning. But anyone who knew that these were the people who had voted, that there were … I’m making up the number because I don’t remember it. 200,000 ballots in the Fairfax CAP, and this was the demographics of who cast those ballots, you knew that the vote when those ballots came in, we’re going to flip the results.

Preet Bharara:

And so are we overly worrying about this? People keep talking about this issue of, I’m posing the hypothetical, that Donald Trump will declare victory, and all the numbers will look like they’re in his favor. But there will be lots of numbers and lots of data that will be in Biden’s favor. And will it be up to the media ultimately, or some other group to cut through the nonsense on that evening? Not waiting a day or two or three or something. If Biden goes into November 3rd, with the same poll ratings, and let’s assume they’re accurate, Biden should be clearly winning in multiple battleground states and all the other states that Hillary Clinton won in 2016.

And isn’t it possible? I don’t want to lower people’s fears because I think fear is a good motivating factor, but just in terms of what the announcement will be. Is it also possible that we’ll have a clear winner in Joe Biden on Election Day and not have to wait because of these predictive?

Marc Elias:

It is possible, yeah.

Preet Bharara:

Yeah.

Marc Elias:

It is definitely possible. And again, I think that there is a chance that we do know on election night that Joe Biden has won. I worry that the media will give too much running room to president Trump. I can tell you-

Preet Bharara:

Because why? Because it’s a new way of tabulating?

Marc Elias:

No, because I can tell you I was in the compound or on the floor of Suites in 2016, where Secretary Clinton was. And I don’t want to suggest that I was playing a more central role than I was, but it in the discussions that took place, it never occurred to anyone to falsely claim victory, simply to sow chaos. Like it never occurred to us to say, “Let’s just go to the Javits Center and say, we won.”

Preet Bharara:

Yeah.

Marc Elias:

Right? And so, we’ve never had a candidate who’s done that, right? Like when candidates lose, they concede, or at least they don’t claim victory. And-

Preet Bharara:

Yeah, so that’s incredibly important. So everyone knows because he’s told us that no matter what happens that Tuesday, he’s going to declare victory. And I guess my question is, and if you can get a word to Joe, I’d be appreciative. If these other models show, and I presume that Joe Biden will not concede, if it’s not clear. But if these other predictive models show that Biden is winning, and has enough votes to get the Electoral College, what is his trigger finger for declaring victory, as opposed to simply avoiding concession?

Marc Elias:

That I don’t know, I can’t speak for the vice president or what he or his campaign would do. I can tell you that, I think that if it is, let’s say it is clear to all that vice president Biden has either won or is likely to win. I think the question is, what is the media going to do if president Trump then announces to the media, he’s going on to declare victory? And that’s not my business. I’m a lawyer, that’s someone who’s a media ethicist or media person to figure out, but I do think that that’s what makes Trump different than any other candidate because I don’t think we’ve had any other candidate, or office holder who approaches it the way he is.

Preet Bharara:

What are some of the things that you worry about post November 3rd, that the Trump administration, either through DHS or through the Attorney General, might do to prevent the counting, especially of these absentee ballots, that might skew the result?

Marc Elias:

So look, my job is to worry about everything [crosstalk 00:42:30].

Preet Bharara:

Yes.

Marc Elias:

Is to verify everything. But-

Preet Bharara:

Thank you.

Marc Elias:

But to be honest with you. Our elections are largely decentralized. The truth is, it’s interesting. I had a case in Florida that we wanted, the Trial Court got reversed at the 11th circuit and their grounds for reversal at the 11th circuit, was that we had sued the secretary of state who is the chief elections officer, but the 11th circuit found that, notwithstanding them being the chief elections officer, she was actually not empowered to run elections in Florida, and that I needed to have sued all 67 counties, because it’s actually they’re run by counties.

Now, I happen to think that we’re about seeking a monk review of that panel decision because I don’t think it’s correct. But it does get to, there is a kernel of something there, which is that DHS doesn’t run elections. The Attorney General, as having been US Attorney, you really didn’t have authority over the conduct of elections.

Preet Bharara:

Yes. But they can they seize authority in peculiar circumstances to interfere with an election?

Marc Elias:

I don’t think so. Again, this is something everyone’s got to. People who are paid to worry about the worst of the worst will gain this out and figure out what the counter plans are. But my experience is that the local elections official in Leon County, Florida, kind of runs the elections in Leon County, Florida, and oftentimes doesn’t even listen to what the state says. And the states are given the constitutional power to run elections, and though Congress is given an override authority, that override authority is given to Congress. It’s not given to the president, it’s not given to the attorney general, it’s not given to DHS.

So again, I don’t want to have rose colored glasses on. I realized as I’ve said to many people, “Donald Trump is shameless, and therefore he’s dangerous,” because when you have no shame, you’re willing to do anything. But I do think that the court system and the local election officials would balk at the idea that the federal government’s ability to disrupt local election officials from doing what is their constitutional obligation and right.

Preet Bharara:

What about this issue that some people are speculating about that allows state delegations to maybe change the results of the election and throw it to the house?

Marc Elias:

I think you mean state legislators?

Preet Bharara:

Yes.

Marc Elias:

Yeah. Again, I think that would run into really serious constitutional problems. There’s certainly a question as to whether states need to hold presidential elections. In other words, could a state simply choose to slate its own electors without holding a presidential election?

An interesting question, but not one that we face, since every state currently is planning on holding an election and confident that’s going to happen. I think once they’ve held that election, I think the ability of the state legislatures to step in becomes harder. And of course, you have Democratic governors in Michigan and Wisconsin and Pennsylvania and North Carolina. So I think they’ll be chatter about that. I think it’s a legitimate thing for people to be prepared for.

My main focus right now is making sure everyone registers to vote and votes, and then make sure their vote counts. And that’s really where I’m spending my time and effort.

Preet Bharara:

Is there a particular state or two, where you think the efforts are most important?

Marc Elias:

Yeah. I think Pennsylvania, Wisconsin, Michigan, not just because they’re traditional battlegrounds. But because they are states that do not have, particularly Pennsylvania and Michigan, do not have histories of large numbers of people voting by mail. So I focus on states that are essentially adapting to COVID by having to really adapt to COVID.

A state like Florida though run by a Republican governor, Republican Secretary of State and certainly Republicans, I have sued and have profound disagreements with on a number of things. They have a population that is accustomed to early voting and accustomed to vote by mail, and have county officials who are accustomed those things. So I worry more in the States where these are new processes. And therefore they haven’t developed. New York was not a shining example, always of expansion of vote by mail. So I hope that goes well. Now that it is expanded, I worry more about those states based on experience.

Preet Bharara:

Can we talk about one case that we were talking about before we came on, that is very angering to a lot of folks, and that’s the drop off issue in Texas, where you have these large counties. Some counties as large as some American states, where there had been multiple drop off locations for people to deliver their absentee ballots. And the governor seems unilaterally in various places to be reducing those drop off locations to one spot. How bad is that? And what are you doing about it?

Marc Elias:

Yeah, so it’s terrible, number one. Number two, it actually proves sort of the limitless effort by Republicans to make voting harder. So let’s just start at the beginning, right? So first, the Republicans said, “If you vote by mail, we don’t want third party ballot collection, right?” We don’t want what they refer to as ballot harvesting. We don’t want people handing off their ballots to others to be delivered. We want voters to vote and deliver their own ballot. Great.

Then they sued Pennsylvania because they didn’t want drop boxes. Okay, they sued Pennsylvania because they didn’t want drop boxes. The Secretary of State of Ohio, cut back on the number of drop boxes. Republican Secretary of State of Ohio cut back on drop boxes, right? I didn’t have war on drop boxes on my 2020 voter suppression bingo card, but fine. We then got to the place where Republicans don’t want drop boxes, because they said drop boxes are insecure, they’re unmanned, they’re standing out there in the public for people to use.

So now we’ve reached the point where voters are like, “Okay, I’m going to actually hand in my ballot in-person to an election official, right? No third party, no drop box, like it’s literally from me to the election official.” And the governor of Texas is now limiting that, saying, “Well, you can only have that in one place per County.” Well, what the heck is that about, right?

At some point, how do they want people to get their ballots back? Right, like they are narrowing and narrowing the ways in which voters can make sure their ballots get in on time. So we are suing over this.

Preet Bharara:

Are you going to win that one?

Marc Elias:

I hope so. We’ve had a number of cases in Texas where we won at the trial court, and the Fifth Circuit has been a challenge. But if ever there was something that you would think everyone could agree on, it would be that people being able to hand in their completed ballot in-person to an election official should not be limited.

Preet Bharara:

Yeah, clear evidence of bad faith. So a parlor game has been not a parlor game. I don’t mean to minimize the issue, but we have Supreme Court vacancy, and Ted Cruz and Donald Trump and others keep saying, “Well, we need to have a full nine Justice Court to deal with whatever contests will occur legally over the election.” Everyone’s predicting that there will be some, you know that better than anybody. But I don’t hear many people talking about it.

What is the thing? What is the scenario or scenarios plural, you think will actually make its way to the Supreme Court? What’s a credible posture for there to be in the period after November 3rd, in which the Supreme Court might decide who won the election?

Marc Elias:

Look, so one of the good news stories of there being so much litigation before Election Day is that hopefully there will be less litigation after Election Day, right? So a lot of the litigation when I say they were litigating 35 cases, a lot of that is that at least the courts are considering pre-election, what some of these balls and strikes are. And even though I may not always like the way those calls are made, it is better for those to be made in advance of Election Day, than after Election Day, for a variety of reasons. Timing being one of them. The fact that ruling’s made after the ballots have been cast for present different challenges, voters can conform to it, right?

So it doesn’t mean there won’t be post-election litigation or there isn’t, won’t necessarily be a need for it. But hopefully one of the good news stories is that some of this stuff is being done now. The stuff that tends to be litigated post-election tends to be over the way in which ballots are being treated.

So obviously, the most famous case Bush versus Gore dealt with whether there could be a partial recount of the state involving the so-called hanging chad ballots, very, very infrequently do cases generate that kind of attention that they go all the way to the Supreme Court. But in every post-election, there are some number of cases that get filed because there is some oddball circumstance or some set of unforeseen events over the counting of ballots, that that takes place.

For it to be another Bush versus Gore, the election has to be exceedingly close, and it has to be in a pivotal state. So I never say never. And certainly every two years, I prepare for that. And we’ve had some very close elections in the Senate. We had almost close election in 2004 in Ohio, or we had not … I’m sorry, not almost. We had a close election rather in 2004, we almost won it is what I meant to say in 2004, in Ohio, and then obviously, the three states in 2016. But that’s I think, how I think of it.

Preet Bharara:

Wait, so that’s encouraging because it seems like everyone is assuming for a fact that there’s going to be a battle that goes to the Supreme Court in the case that it’s a close election, which it may be, and you’re not so sure about that?

Marc Elias:

No, I’m saying that in order for it to be a close enough election for the courts to make a difference, it has to be a really close election. I mean, like not close, as in like, two points. Close as in two tenths of a point, and that’s what I’m saying is that ultimately Senator Kerry lost in Ohio by 80,000 votes, and that was a close election, but it was not a close enough that any particular court decision was going to change the outcome of the results. So remember, in Florida in 2000, we were talking about less than 1000 votes at issue.

Preet Bharara:

Right. If there are people who are listening who want to be helpful to your efforts and efforts generally in the election, what is your advice to them? Should they become poll watchers? Should they become poll workers? Should they sign up? If they’re lawyers to volunteer for some efforts? Are they accepting volunteers? Tell them what they can do.

Marc Elias:

Yeah, so here are a few things. The first is in 2018, two thirds of poll workers were over the age of 60, and a quarter were over the age of 70. And obviously, you can only open polling locations if you have sufficient number of poll workers. So there is a major push, which I completely, wholeheartedly engage in to have people who are able and healthy and young. To get trained as poll workers, you can contact your local county officials and they can tell you how to do that. There’s a great organization called Power the Polls, you can go to their website and sign up and they’ll connect you with the right people. So for people who are willing to do that, that’s great.

I have a website democracy.com, where I track all of our litigation put out good advice. We also have a place where people can sign up for Power the Polls. Also, another organization called We The Action, which is for lawyers or through our website, people who sign up, we will also direct them in the right place.

Preet Bharara:

And what’s your website? Say your website again?

Marc Elias:

democracydocket.com. And then finally, if you want to sign up for the Biden campaigns Voter Protection Program, if you go to their website, there is a link where you can sign up, whether you’re a lawyer or non-lawyer to be a poll watcher, or otherwise help vice president Biden’s campaign.

Preet Bharara:

You’re also a member of the special litigation team announced it has, among other people, former Attorney General Eric Holder, your former partner, Bob Bauer, how is that separate from the efforts that you’ve been undertaking so far?

Marc Elias:

So the average undertaking so far have been on behalf of a variety of political committees. I’ve brought lawsuits on behalf of the DNC, the Democratic Senate Campaign Committee, Democrat Congressional Campaign Committee, and also various progressive nonprofit organizations, just as a private lawyer representing clients. For the post-election period, the Biden campaign will be one of those clients. So the work I do for them is separate, obviously, from the work I do for the other clients.

Preet Bharara:

Last question. Is there one election related case that you’re either most proud of or you thought about the most? You’ve been involved in a number of close recounts, including Al Franken in 2008, and Harry Reid in 1998. Does any one of those teach you more than the others?

Marc Elias:

So this may surprise you. But the case I am proudest of is a case, actually, just a couple of years ago. We sued Mississippi. Mississippi had a law, actually a state constitutional provision that require that in order to be elected governor, or to other statewide state office, you needed to not only win the popular vote, but essentially you also needed to win a majority of the state legislative districts, okay. It was sort of their own little mini electoral college.

And this constitutional provision was put into the state constitution as part of avowedly racist, like not hiddenly racist effort to prevent the newly enfranchised black men, that time is only men of Mississippi from electing their candidates of choice. So the white population of Mississippi convened an emergency state constitutional convention in the 1890s to do this, and effectively was able to disenfranchise and keep African Americans from electing a black governor since that, and there’s ever been a black governor of Mississippi, in part because of this provision.

And we challenged this provision, and the court indicated that the provision was almost certainly unconstitutional. He was going to rule it unconstitutional, gave the state of Mississippi an opportunity to correct it. So on the ballot this November is a constitutional amendment that will repeal that provision and move Mississippi to the normal process of whoever gets the most votes wins. And it is actually the case I am most proud of because this was not about one election or one candidate. This was really a structural impediment in the Mississippi State Constitution that had prevented generations of black leadership.

The day after the election, I will be checking a few results. I’ll be checking the presidency. Obviously, I’ll be checking whether the Democrats have taken control of the Senate. And then obviously the lead the margin in the house, and then I’ll be keeping eyes on this provision because I hope Mississippians do the right thing. And in repealing that provision, it has bipartisan support to reveal that provision. So I’m glad about that. So that’s the case I’m proud of stuff.

Preet Bharara:

I lied. I have one more question because I just thought of it. And I don’t know if you’re involved in this at all. But felon re-enfranchisement in Florida. Is there any merit at all under Florida law, to your knowledge in the argument that Mike Bloomberg and others who are offering to pay the fines and penalties of former felons violates the law so that they’re able to vote?

Marc Elias:

No, there’s no merit under state law, there’s no merit under the federal vote-buying scheme, which is the other thing that you hear Republicans talk about. Mike Bloomberg is trying to do just one of the most public goods that could be done in Florida, which is to help solve a problem that has been created by the courts, and by really cynical behavior on the part of the Republicans in the state. So no, I don’t think there’s any merit to it.

Preet Bharara:

And you don’t think it’ll be blocked? You think some of those people will be able to vote based on the [crosstalk 00:59:05] effort?

Marc Elias:

Yeah, I think the hardest thing about it is not the legal action. The hardest thing is that the system is set up very often that these folks don’t even know what they owe.

Preet Bharara:

Right, exactly.

Marc Elias:

If you don’t tell them now, it’s hard to pay it off.

Preet Bharara:

Yeah, we’ve likened it on the show before. You go to a restaurant and you have a nice meal. So you can’t leave until you pay like, “Well, what do we owe?” Like, “We can’t tell you.”

Marc Elias:

Right.

Preet Bharara:

So you can’t leave. So you’re just imprisoned in the restaurant.

Marc Elias:

Correct.

Preet Bharara:

Nobody would stand for that in any other kind of exchange or interaction in the country. But it is allowed to stand in Florida for these reasons that you’ve described.

Marc Elias:

Correct.

Preet Bharara:

Marc Elias, thanks for joining the show.

Marc Elias:

Thank you.