“The Constitution gives the states the power to set the time, place, and manner of elections,” the election lawyer Marc Elias points out. “It gives the President no [such] power.” Yet, almost one year before the midterms, Donald Trump has called for a nationwide prohibition on mail-in voting, an option favored by Democrats, as well as restrictions on voting machines. The Justice Department has demanded sensitive voter information from at least thirty-four states so far, with little explanation as to how the information will be used. Will we have free and fair congressional 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,” Elias tells David Remnick. “That may sound very lawyerly and very technical, but I think it would be a historic rollback.” Elias’s firm fought and ultimately won almost every case that Trump and Republican allies brought against the 2020 election, and Elias continues to fight the latest round of incursions in court. And while he rues what he calls “re-gerrymandering” in Texas—designed to squeeze Texas’s Democratic representatives out of Congress—Elias thinks states run by Democrats have no choice but to copy the tactic. “Before Gavin Newsom announced what he was doing, I came out publicly and said Democrats should gerrymander nine seats out of California, which would mean there’d be no Republicans left in the delegation. . . . At the end of the day, if there’s no disincentive structure for Republicans to jump off this path, [then] it just continues.”

Ask this episode

“What did the council decide on item 42?” — answered with the speaker and the moment.