Is The 2026 Election Already in Danger?

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1:52This is the New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to the New Yorker Radio Hour. I'm David Remnick. One constant of Donald Trump's career in politics has been his belief that voting is rigged against him. He finds fraud even in some elections that he wins, like in 2016 when he said that Hillary Clinton got the popular vote only because of people he called illegals casting ballots. In 2020, the conspiracy theory of the stolen election led to the attempted insurrection of January 6th, and that conspiracy theory remains an article of faith for many Republicans.

2:34After his comeback victory in 2024, Trump is once again sowing doubt. This time, though, he has the absolute loyalty of the executive branch to pursue his every suspicion. He's called for an end to mail-in voting everywhere. Meanwhile, Pam Bondi's Justice Department has demanded sensitive voter information from at least 34 states so far. Now, under the Constitution, it's the states that have the authority to conduct elections. But the states are now coming under pressure to do exactly what the executive branch tells them. Now, how big a problem is all of this? And do we really have to worry now about having free and fair elections in America?

3:18I brought those questions the other day to Mark Elias. Mark Elias is a top election lawyer for the Democrats, whose firm fought and won nearly every case that Trump and his allies brought against the 2020 election. Mark, we're going to be talking a great deal about fair and unfair elections, a subject that has a lot to do with the deep divisions in our political culture. But to be more precise about it, we're talking in the wake of a horrific and tragic assassination of Charlie Kirk. This is a tremendously tragic and really consequential event, and we're still learning more about the alleged killer.

4:02What I'd like to know is how you think this political murder and the political violence that has spiked so much in recent years, how does that potentially affect the prospect of our political culture and any future election, including the midterms that are a year off? Look, I mean, the killing of Charlie Kirk is a personal tragedy for his family and friends, it is a tragedy for free speech and a tragedy for people who want to engage in public dialogue, whether you agree with them or disagree with them. And it is also a tragedy for our politics, because what it does is it further perpetuates the idea that violence is going to be part of the equation when we have people who we don't agree with.

4:54You know, the assassination attempts on Donald Trump were horrific. The targeting of Josh Shapiro was horrific. The killings in Minnesota were horrific. And it is heartbreaking to see that it's going on, but I fear that we are not at the end of this, that the fever won't break. Now, I don't know what causes the fever to break, but I fear that we're not any place near the fever breaking, And that makes it harder to have free and fair elections because it makes it harder for there to be the full expression of ideas. It says something that quite a few Americans are afraid of not having elections in 2026 at all.

5:37And even if that's not the case, what do you make of the vibe that's out there that there are people that feel that normal midterms might not be possible? Yeah. So we are going to have midterm elections. I mean, the good news or the bad news is dictators love elections. I mean, Vladimir Putin loves him an election. Now, they may not be a free and fair election, but they will be an election. So I don't think that anyone needs to worry that there will be elections canceled. The president doesn't have that power. I don't think he'd want to. What Donald Trump wants to do is try to rig the outcome of the elections.

6:08And that gets to the question of how free and fair they are. And I am quite worried there. I mean, Donald Trump posted on social media and it was picked up widely that he wants to ban mail-in voting. And it was picked up widely that he wants to ban some unspecified voting machines. But if you read down further into that social media post, what he says is that states are the agents of the federal government in the tabulation and the counting of ballots and that he, the president, speaks for the federal government, which, if you just collapse that into a coherent thought, is he believes that he controls what votes count and what the tabulation of the vote shows.

6:43Too many people, David, told us, take Donald Trump seriously but not literally. And I think that that is part of what led us to January 6th, that people didn't take him literally. And I take him literally when he says that's what he wants. And we need to be vigilant and we need to be fighting every single day to prevent that from happening. Well, we know that Vladimir Putin agrees with Donald Trump on mail-in voting. What is his case that mail-in voting is somehow unfair or illegitimate? And what is your argument for it? — Donald Trump's argument against mail-in voting is that more Democrats vote by mail than Republicans.

7:15— There's no other basis for it. — There is no other basis for it. The fact is Republicans in many states have enacted mail-in voting rules, including, for example, like in Utah. Florida Republicans made widespread use of mail-in voting. Arizona has almost universal mail-in voting. Donald Trump got it in his head in 2020 during the pandemic when there was more concern among Democrats than Republicans, and we could have a whole discussion about vaccines and all of that. But there was more concern by Democrats than Republicans about going in crowded places in person. And so more Democrats started adopting mail-in voting.

7:51And he has been against it ever since because that preference for mail-in voting remains more Democrat than Republicans. So how serious is the danger that the United States will not have free and fair elections, to use the key term, in this upcoming 2026 midterm? Free and fair elections are a continuum. We have never had perfectly free and fair elections in this country. No one has had perfectly free and fair elections, but we have strived over time to make them more free, to make them more fair, to make them more accurate and more reflective of the electorate. What Donald Trump is trying to do is to turn that back, but to turn it back in a way that is highly partisan.

8:31That is to not turn it back for everyone, but rather to target voters who he think won't support Republican candidates. So how worried am I that we will not have free and fair elections in 2026? I am very worried that we could have elections that do not reflect the desires and the voting preferences of everyone who wishes they could vote and have their vote tabulated accurately. And that may sound very loyally and very technical, but I think it would be a historic rollback Because in recent decades, we may have a problem of people wanting to vote or registering to vote, but the electorate is broadly available to everyone who wishes to cast a ballot.

9:18And those votes have been, with rare exception, accurately tabulated. I think in 2026, there is a possibility that whole categories of people who wish to vote won't be able to, and that the ultimate tabulation and counting of votes won't be accurate. And it is the job of me and other lawyers and democracy advocates to make sure that does not come to pass. But I am quite worried that that will be the case. Well, then let's break down the statistics and the specifics. The Department of Justice has been asking states, and I think there's over 30 states at this point, they're asking for detailed voter roll data.

9:55What do they want it for? And does the federal government even have the right to that information? Yeah. So you asked two very important questions. Let's take the second part first. The fact is that under our Constitution, states administer elections, not the federal government. The Constitution gives the states the power to set the time, place, and manner of elections, subject only to congressional enactment. It gives the president no power. It gives the executive branch no particular power over elections. So that is sort of point one. But to your broader question of why do they want it, Why does the Department of Justice want a list of every single American who has ever registered to vote and all of their private information, social security numbers, signatures, whether they voted, whether they're a registered Democrat, whether they're a registered Republican, whether they have voted in Democratic primaries or Republican primaries, in many states what their race is, in every state what their gender is, what their age is.

10:52Why do they want all that data? And what do we think they're using it for? Well, I'm pretty sure they're not doing it to help the American people vote. They are doing it, I think, for three reasons. Number one, they want to use it in some instances for unrelated purposes, like, for example, to give it to DHS or to other agencies where they think it will help complete a profile to achieve some other policy goal of the administration. Such as? Well, so, for example, for immigration, you know, for finding people, for, you know, detecting who is a citizen or not. I think that's one reason. Okay. But I think there are two other really important reasons.

11:28I think that they are going to use that information to spread wildly inaccurate disinformation and misinformation about lawfulness of voting. They are going to use it to spread a sense that illegal votes have been cast in the past, that they are being cast in the future, that lawful U.S. citizens are having their vote diluted through unlawful means. It's not like we haven't seen this playbook before. We saw Ron DeSantis, as you recall, you know, execute his task force on voting or integrity. You know, like we've seen governors do that, but this would be a different thing if the Department of Justice decides to get into the business of spreading lies about whether people are lawfully voting or not.

12:13And then the third thing, which is the one that I'm principally worried about, is that they're going to use it in the post-election as a justification to say that the results of the election that were certified by states are inaccurate. Now, remember, in 2020, Donald Trump had a meeting in the Oval Office in which it was floated that he would send in federal agents to seize voting equipment from the state of Georgia. What stopped him were White House employees and people from the Department of Justice. So I'd ask you, David, who among the White House and who in Pam Bondi's Department of Justice do you think is going to be the one that stands up and says, no, Mr.

12:47President, not only can't you do it legally, but if you do it, we will all resign en masse. Can the federal government actually purge state voter rolls? No, they can't purge state voter rolls. Only states can purge their own voter rolls and then under very, very narrow restrictions as provided by federal law and state law. But what they can say, what they can say, David, and this is what I worry about, is Pam Bondi announces that there are, I don't know, make up a number, 1.3 million illegal votes in the state of New York. 1.3 million. and that if those votes had not been cast, if those 1.3 million people had not voted, Donald Trump, in fact, would have won the election in 2024 in New York.

13:35And therefore, you know, we can't have this again. Now, if this sounds fanciful to people, we heard this from him before. We heard him say this after 2020, that he thought he won California, except for illegal votes. He, in the course of the 2024 election campaign, said he thought he actually won New Jersey. He thought he actually won Minnesota. He thought he actually won New York in 2020. This is the use, the misuse of this voter data that's being collected, I believe, is going to be to cast doubt on whether or not states are accurately tabulating ballots and to try to then argue that the tabulations of this White House should take the place of the tabulations being submitted by the counties and states.

14:14What about the claim that we hear from the administration about undocumented people voting? What is the reality here? What's known to legal experts about this? So there are virtually no instances of non-citizens voting in U.S. elections. I'm not even talking about undocumented. I am including green card holders. I'm including visa holders. There is almost no evidence of any non-citizen voting in this country. The instances where it happens are almost entirely by mistakes. You know, they are by mistakes. There are vanishingly few, but some instances of non-citizens being registered to vote. But understand, the fact that they are registered to vote does not mean they then vote, right?

15:04So again, it is very infrequent. It is exceedingly rare. But I remember years ago when Republicans were trying to make this argument, they'd say, look, there's an example of Mickey Mouse registering, having registered to vote in Florida. And what I'd say is, first of all, you found one instance of it. But number two, Mickey Mouse never voted, right? Like, are there instances where the voter rolls are dirty, where someone's died? Yes. But that doesn't mean the dead person voted. It just means that some number of voters die. Are there the rare instances in which someone at a mall gets stopped by someone registering people to vote and they fill out the form and they don't realize that they're a non-citizen, they weren't eligible, but then they don't vote?

15:47Like, this is entirely not a problem. This is entirely a made-up problem by Donald Trump and the Republicans to have an excuse to disenfranchise millions of Americans. Millions of Americans. Recently, National Public Radio reported that the administration may withhold millions of dollars in DHS grants for election security if states fail to adopt their voting policies. The Secretary of State in Maine, Shanna Bellows, told NPR this. The Department of Homeland Security is trying to backdoor changes to our election laws. And Mark, what are the steps that the administration wants states to take, and how are those states reacting to these?

16:34Yeah, so we don't know the full scale. What we know is they've issued their first executive order already, which, by the way, my law firm and I sued them on behalf of the Democratic Party and won an injunction against the first elements of it. They have threatened a new executive order that, if you believe what Donald Trump is saying, would be quite sweeping. It would require photo ID laws in all 50 states. It would require states to ban all mail-in voting, which, by the way, would shut down voting in entire states. I mean, there are entire states that only vote by mail and lots of states that have it as their predominant method.

17:13And it would ban or decertify certain voting equipment. Now, he's a little vague on what the voting equipment part of this is. I suspect that someone in the White House right now, working perhaps for Stephen Miller, is figuring out what voting equipment is used in Democratic cities and not used in more rural areas. That will be the equipment that is on that list. Some of these moves aren't being done in the courts. They're coming through executive orders. Can you explain what legal weight an executive order has and what it might have on election processes? So this is one of the great information victories of Donald Trump's administration, because Donald Trump has turned what was once a press release or a tweet into carrying a lot more weight than it really deserves.

18:04I mean, an executive order doesn't bind Congress. An executive order doesn't bind the judiciary. An executive order doesn't bind states. It is simply the boss, right? It's like getting a memo from your boss saying the policy of this company is X. That's all an executive order is. But he has managed to elevate all manner of really press releases with scare quotes into executive orders by going through the theater of them. In the area of elections, the president— But you're not suggesting this is all theater. I'm suggesting that in the area of elections, the president has no constitutional authority.

18:47the entire constitutional authority for running federal elections rests with the state. So the effort is not institutional. The effort is more propagandistic and persuasion. I think it is institutional in that he has control over the Department of Justice. And I think that is probably the piece of this equation that I focus on more perhaps than others, is that, you know, we are used to him controlling DHS and DHS funding. We are not used to a president controlling who gets criminally investigated.

19:25I'm speaking with the lawyer, Mark Elias, and we'll continue in a moment. This is the New Yorker Radio Hour.

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24:21This is the New Yorker Radio Hour. I'm David Remnick, and I'm speaking today with Mark Elias. Elias has practiced election law for a very long time, and the ascendance of Donald Trump on the political stage has kept him more than busy. In 2020, Elias and his colleagues fought 64 cases brought by Republicans contesting the election. Once Trump made it back to the White House, he singled out Mark Elias in a presidential memo attacking attorneys. In a speech, he called Elias a radical, part of the cabal who, I'll quote, did everything within their power to prevent me from becoming the president. I spoke with Mark Elias about a series of moves from the Trump administration to make voting that much harder, moves that have many people very concerned about the security of our elections.

25:11We'll continue our conversation now. Let's get into some specifics about what might have real impact on 2026. Can you explain what's been happening in Texas lately? You've described it as re-gerrymandering. Gerrymandering is never a fair-minded or even-handed attempt. It's always, in reality, a political attempt. Barack Obama, as I recall, in his state Senate seat, was the result of a gerrymandering that nicely snaked from Hyde Park up to the north side and got his constituencies in rather nicely. Gerrymandering has been used for all kinds of racial purposes in various states. Over time, it's not a pretty history.