Transcription
We have breaking news from the United States Supreme Court. The Department of Justice has just sought an emergency appeal in the case they lost in the First Circuit out of Massachusetts over Donald Trump's executive order trying to take control of mail-in voting.
Hi, this is Mark Elias, founder of Democracy Docket. And for those of you who have been paying attention, you know that in March of this year, President Donald Trump signed an executive order 14399 which he titled, wait for it, ensuring citizenship verification, and integrity in federal elections. Now, that's a propaganda title. What it was really about is trying to take control of voting. Donald Trump trying to decide for states who gets a mail-in ballot and who doesn't, who gets kicked off their voter roles and who doesn't. It was a sweeping executive order and a breathtaking, uh uh, unconstitutional action infringing on the rights of the states.
Now, you may remember there were a series of lawsuits filed against this particular executive order. My law firm and I, we filed one immediately on behalf of the Democratic Party in Washington DC. The state AGs from the Democratic states that have Democratic AGs, they filed one in the district court in Massachusetts. Various other lawsuits were filed by v by other nonprofit organizations. But the one we're going to talk about today is that case out of Massachusetts where the state attorneys general from the Democratic states won a critical injunction and then the Department of Justice appealed and the states won again. Well, now facing the prospect of Donald Trump's executive order going down and not being in place, the Department of Justice has filed this emergency shadow docket appeal. So, look, I'm going to break down for you what's in this executive order, why Donald Trump issued it, what DOJ is arguing, and where we go from here. But before I get into any of that, I need you to do me one favor. Subscribe to Democracy Docket. It is the platform that I created in 2020 to keep you informed on everything happening to democracy in court. It's part of the reason why we're able to bring you breaking news like this on video on this YouTube channel and this podcast, but also on our website and through our free newsletter. So, I'm going to put the link to subscribe in the description of this episode or go to democracy.comyoutube and sign up right now.
All right. So, I mentioned that this executive order comes out came out in March of this year and it did five things. The first, it directed the Department of Homeland Security to work with the Social Security Administration to create a list of US citizens that they believe are eligible to vote in each state. So, you know, notwithstanding the fact that the Department of Justice has been suing 30 states to get access to their voter files. Yeah, you probably know about that if you're a subscriber democracy docket or if you've watched previous uh videos that we've done that the Department of Justice has been scrambling to get their hands on the most sensitive voter information that states maintain. It's a 360 degree picture of you as a voter. It's your name, your social security number, your date of birth, a signature specimen. In many places, whether you're registered Democrat or Republican, whether you vote in every election or only in presidential years, whether you vote in primaries or not, it's a complete picture, as I said, of you as a voter. And the Department of Justice has been suing to get this information. Now, that's not the only way they've been trying to get their hands on this data. And it's not the only database they are using to try to build what is unquestionably a national voter file. And the reason why they want that national voter file, the reason why they want this data so clearly is because they then want to dictate to the states who doesn't get to vote, which US citizens they decide get kicked off. Sure, it will be an error that they claim after the election, or maybe they'll never admit that it was a mistake, but in the meantime, they'll be able to disenfranchise hundreds of thousands, if not more, Democratic voters and try to use that to win the midterm elections. And if you don't believe they're going to be partisan targeting who they remove, then you aren't paying attention to what's happening to democracy today. All right? But this executive order fits into that overall plan, but it sort of also stands on its own two feet. It directs, in addition to the Department of Homeland Security, the US Postal Service to only send absentee ballots to voters on approved lists and requires the states to send those lists to the US Postal Service. 60 days before a federal election. Well, isn't that convenient? They haven't been able to get this data from the states, right? They're suing them. So, now they got this new way that they're going to try to get it, which is say, "Hey, New York would be a terrible thing if no one in your state could vote by mail. So, why don't you send us a list of all of the people who you want to send mailin ballots to 60 days in advance of the election? I wonder what they're going to use that list for. I mean, we know what they're going to use that list for. They're going to use that list to then say, "Hey, New York, no, no, no. Based on these other lists we got, these people don't can't get absentee ballots. This 10,000, this 20,000, this 100,000, they're ineligible. And we're going to tell the postal service not to send them ballots. And by the way, New York, if you don't agree with us, maybe we'll criminally prosecute you." We've seen exactly that rhetoric from this White House, from this administration in the weeks leading up to the moment we are in right now where the government is at the US Supreme Court trying to effectuate what they have not been able to get through Congress, what they have not been able to get through the courts. But here we are. The attorney general is in this executive order directed to prioritize investigations and prosecutions into cases involving ballots sent to ineligible voters. Sent to ineligible voters. Remember I just mentioned that a few weeks ago Secretary Mark Wayne Mullen, he was talking about how they might have to prosecute election officials. We saw letters from the Department of Justice to those election officials threatening them with potential criminal investigation prosecution. That didn't come out of nowhere. That's part of this executive order where they want to prioritize investigation into the people who send ballots to quote ineligible voters. And finally, states that don't comply with this whole regime don't give up their constitutional power to set the time, place, and manner of elections, which is the power of the states. It is not the power of Donald Trump. It is not the power of Mark Wayne Mullins. It is not the power of the Department of Homeland Security or the Social Security Administration. And it is not the power of the US Postal Service. It's the power of the states to set the time, place, and manner of elections. And states that won't do that, well, they're told they could lose federal funding. If that sounds familiar, because we've also been hearing that in the last few weeks, not withstanding the litigation that's going on. This is an allout assault on free and fair elections. This allon assault has been going on for some time now. And if it feels like there are different angles and repetitive efforts that Donald Trump is trying, it is because there are different angles and repetitive efforts. But this particular executive order that was sued over and blocked by a Massachusetts federal district court judge and blocked by the first circuit court of appeals and is now on the shadow docket of the US Supreme Court. This is one of the big ones, which is why you need to be paying attention. It is also the reason why I'm doing this emergency episode, and it is why I founded Democracy Docket in 2020, to keep you informed on what's going on with democracy in court. We don't do both sides. We don't do, you know, make nice with the Trump administration, maybe have dinner with them. I wouldn't eat dinner with Donald Trump for anything. I wouldn't shake his hand. I wouldn't chuckle at his jokes. Legacy media does all those things. So, I started Democracy Docket to be an authoritative source of truth, but pro-democracy information that you need about what this administration is up to. So, please do me a favor and subscribe to it right now. The link to do so is in the description of this episode. It is also available by going to democracydocket.comyoutube and signing up right now.
All right. So, having lost at the trial court, having lost in the court of appeals, here we are now in the US Supreme Court in a brief just filed by the Department of Justice. And they are asking the justices who are scattered around the globe, right? They are on recess. They're on break. God knows where they are and who's paying for it, but they're not in the Supreme Court building. They're off doing whatever they do for the summer. And the Department of Justice is saying, "Hey, justices, we have an emergency. We need you to right now reverse this decision by the first circuit and let this executive order move forward." And they lay out a couple of arguments for why they think that needs to happen. First, they argue that the states don't have standing. I know you may be scratching your head and think, how could the states not have standing? I mean, after all, this is a power grab from the states. It is telling the states that they're not going to be able to get their absentee ballots sent to to voters that they unless they do certain things with the postal service. It is prioritizing investigations, criminal investigations of state officials and it is threatening them with with federal funding. So you might ask yourself like how possibly could there not be standing here? I am asking myself how could there possibly not be standing here? But what the Department of Justice argues is that we well you know it's too early. I mean we don't know if anything things are actually going to happen. I mean, after all, all we've done is told the Department of Homeland Security to work with the Social Security Administration, but we don't know what they're actually going to do. We told the US Postal Service to pass a rule to implement this, but gee whiz, maybe they won't listen to us. I mean, these agencies can be quite independent. That's a bunch of And you know it, and I know it. These agencies are doing Donald Trump's bidding. And this idea that it is too early to know whether anything is going to come from it. I mean that is a level of cynicism. That is a level of bad faith that is even at the outer margins of this Department of Justice. I won't say they haven't gone further than that in other cases, but boy to somehow suggest that the you know the Department of Homeland Security might just not do the thing that Donald Trump wants them to do. that the US Postal Service that has already instituted the rule making to issue the very rule that this court had to block from being issued that somehow they might not do it is crazy. It's gaslighting. It's lying. But that's what the administration is trying to sell the Supreme Court and sell the American public. What else do they say? Well, you know, we said in the executive order that they should only do these things in accordance with law, right? So, that's like their theory. Their theory is if we just add in accordance with law at the end, everything's okay. Because after all, the agencies were told don't do anything that's not that's not lawful. It's like something you do in a schoolyard when you're like in elementary school. You know, it it's ridiculous this idea that the administration's argument is we can pass any we can promulgate any unconstitutional executive order we want. We can force these these administr these administration officials to do these things. But don't worry, we cautioned them. Mark Wayne Mullen, don't do anything that might break the law. We have watched this administration break the law with impunity. We have watched cabinet officials justify breaking the law seemingly for sport. And just putting that phrase at the end does not save this. It's not some magic trick. And that's not me saying that. That's actually what the courts have said is that you cannot save an unconstitutional or illegal action by just adding that phrase at the end. So that's what they're arguing in court. They're saying, "Look, there's no standing because it's too early. And after all, we told them to just be lawful. Note that they're not going out of their way in these filings to explain how if this thing were implemented. It's constitutional. No, what they want to do is say it's too early now. Allow it to go forward. Then after they've gone forward and the states sue again or my law firm and I, we sue and say, "Okay, now they're doing the thing." Then they're going to be like, "Oh, geez, it's too late. Oh, I mean, it's just too late now. I mean, we've already implemented this rule. It's too late now. We're too close to the election." How many times have you heard that before? Remember the PCEL doctrine doesn't exactly apply here because that deals with legislation at the state level. But that same concept, right? You know that just as they are saying today, it's too soon because nothing has happened yet. As soon as it happens, they'll say, "It's too late because the thing has happened and it would be disruptive to the elections." Try to unwind it, having already done the thing that we said that we were going to do and told you was too late to block. So, this is just a shell game. This is the usual shell game that we get from this administration. It's a lot of nothing. It's a lot of bad faith. It's a lot of arguments with a lot of, you know, legal ease and case citations that amounts to an authoritarian takeover of elections justifying what Donald Trump wants to do.
So, what happens next? Well, the Supreme Court will give us a schedule in which to respond. And when I say we, I mean the states that are at issue will directly respond. But those of us who represent other parties that may have an interest in this, we can file amicus briefs, right? Our own briefs to explain why they're wrong. But the states will have a time to respond. Others can file, like I said, our own briefs. And then we'll wait for a decision. I don't know how much time that will take. If I had to guess, it'll be a few days, maybe a week to respond to this. Then the Department of Justice will file another brief or reply brief and then we will get a decision probably, if I had to guess, sometime in the first week of August. Now, don't hold me to that. It could be sooner, could be a little later, but I think that's what we're looking at in terms of timing. This is not the first trip that we have had to the Supreme Court this year on something that could be outcome determinative in elections. You may remember we won a big case, the Watson case, in which the Republican party was trying to force states to throw away hundreds of thousands of mail-in ballots cast by lawful voters simply because the US Postal Service delivered them too late, even though they were postmarked before the election day. We won that case. The RNC lost that case, but there's a lot of other cases percolating up through the system, including those 17 losses that DOJ has racked up so far. My law firm and I, we've intervened. We've been fighting. We're undefeated. They haven't won yet. But you know that as those cases move up through the Court of Appeals, the Department of Justice will undoubtedly after they lose try to get those before the Supreme Court. We're in that season where there's going to be a lot of back and forth in these cases between trial courts and court of appeals and even yes the Supreme Court. There's one thing I can't have you do and there's one thing I need you to do. The thing I can't have you do is to say all is lost. Donald Trump and this Department of Justice, they want you to say all is lost. They want you to say, you know what, Elias, he'll never win. You know what? These state AGs, no chance. It's rigged before the Supreme Court. Don't give them that hopelessness and cynicism is Donald Trump's friend. We need to be realistic about the fight ahead. We need to be realistic about what the Supreme Court is like. But we also need to insist that the courts do their job. And in this case, that means restraining a president who is out of control, exerting powers he does not have, and letting the states run elections. Now, the thing I need you to do is I need you to pay attention. I need you to share this information. I need you to share it as broadly and as widely as you possibly can. You can start by sharing this video. There is a button that says share. How much simpler could that be? But I also need you to subscribe to Democracy and share its content. It is putting out news information and analysis all throughout the day. about what is happening, what Donald Trump is trying to do, what the good guys are doing, what you can do to protect free and fair elections. We all need to be purveyors of the news, the good news, the bad news, the action items. We all need to be sharing it with everyone we know. Our our friends, our families, our clients, our customers, our bridge club, our diner uh get together and yes, even our bowling league. We need to stand out in our own town square, whether that is with uh people they know we know on social media or people we meet to play ma jang with. We need to stand out in that town square and share this information and say that we're not going to let Donald Trump steal the midterm elections. We are once again going to stop them. And yeah, the lawyers are going to do their part. Elias, he's going to do his part, but we're going to do our part as well. So, we, like I said, you can start by sharing this video. Leave me a comment because I love reading your comments to to find out what we're doing well and what we can do better. Subscribe to this channel and hit the bell to make sure you are alerted when there's new content. But really most importantly, make sure you are subscribed to Democracy by clicking on the link in the description of this episode or going to democracyn.com backyoutube. When we have more updates, we will bring them to you. Thanks. I'll see you next time.