Your Vote Has to Survive the Count

Marc Elias’s warning about the midterms, the lawsuits already underway, and what Democrats and civil-rights groups are doing to protect the result.

Nov 01, 2026

In a passage beginning at 3:18⁠, Marc Elias said:

“We are in the midst of a constitutional crisis.”

That’s his assessment of efforts to interfere with the counting and certification of votes, a threat he argues goes beyond whether or not people can cast a ballot. Their votes have to survive the count, too. [1]

Earlier this year, I began publishing what I called a Reader’s Cut. This is that concept again, an hour-and-43-minute video written up with the reporting, sources and context for those who want to read.

I spent 20 years as a police officer. We took notes, we collected evidence. I was trained to articulate the facts and what evidence supported my reports.

That still shapes my reporting: an emphasis on what people actually said, what’s in documents, the significance of what’s going on beneath what’s said publicly, the difference between an allegation in a lawsuit and a judge’s actual decision.

That’s why I wanted to write up this Democracy Docket episode featuring Marc Elias. I want this October 30 video⁠ to have a readership among those who won’t click play on it. In my view, Elias runs the best Democratic election law firms in the country, and his team has been hard at work on midterm lawsuits that are already underway. His firm, along with other attorneys, Democrats and civil-rights groups, is trying to ensure votes are actually counted. [1]

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TLDR

The Ninth Circuit denied the Justice Department’s emergency bid to have California set aside votes it suspected belonged to noncitizens. The three-judge panel’s majority said such a remedy could imperil eligible voters’ participation in an ongoing election. DOJ had sought to segregate ballots potentially cast by about 20,000 people it suspected might be noncitizens. [2]
In another case, unions and civil-rights organizations won a temporary order restricting federal ballot demands based solely on allegations of voter ineligibility. It also restricts threats to prosecute workers who refuse those demands. [3]
Senate Democrats said they’re organizing to observe the election and prepare for vote-counting and certification, and House Democrats said they’ve been planning for months. [4] [5]

So far, so good, at least on the legal side, which is what this video is mostly about. There’s no silver bullet to inoculate every election from every contingency, but there are real efforts afoot.

Here’s how I approached the episode

I generally follow Elias’s argument. In places, I check his claims against court filings or other official statements.

This episode aired on October 30. Where relevant, I include subsequent developments as reported in the media, identified as such. Here’s where things stood as of October 31, checked on November 1.

Marc Elias founded Democracy Docket. His separate law firm, Elias Law Group, is involved in some of the litigation he discusses. He identifies those instances as they come up. [1]

If you know anyone who perpetually asks what Democrats are doing about this, consider forwarding them this. Restack it as well. There’s more where this came from.

The election doesn’t end when you vote

In this October 30 episode, attorney Marc Elias discusses litigation in California, Alaska and Texas with a common concern. He warns that pressure on election officials may intensify during counting and certification, including efforts to set aside ballots cast by eligible voters. [1]

The election doesn’t end when you vote. Votes still have to be counted, following the applicable laws, and the results still have to be certified. Certification is when the proper officials officially confirm the election results after the requisite counting and review has occurred. For example, California’s election calendar gives counties until December 3 to certify, and the secretary of state until December 11 to certify the statement of the vote for the state. It’s normal for votes to be in the process of being counted after election night. [6]

Elias sees segregation as a way to lay the groundwork for disqualification. Segregation alone wouldn’t necessarily mean those votes don’t count. [1]

Elias also says DOJ is asserting authority it doesn’t have. The California majority said the federal ban on noncitizen voting did not displace the state’s election procedures as DOJ claimed. Elections for members of Congress are conducted pursuant to state law, subject to the authority of Congress. The underlying case remains pending after the Ninth Circuit denied an injunction pending appeal on October 30. [2]

The VRA and defending democracy

Bear with me as I add some history here. Federalism isn’t always a protection for voters. Federal action has also been crucial to protect the right to vote against racial discrimination. The Voting Rights Act of 1965 authorized the federal government to combat discrimination in voting, including the use of federal examiners to register voters. Black Americans’ constitutional right to vote had been thwarted by intimidation and obstacles. Read more about the VRA from the National Archives. [7]

For me, it’s instructive, in considering government action on voting issues, to think about what law is at issue, what the evidence is, and whether the government action would protect or impede access to political representation. And, particularly where votes are at stake, be wary of efforts by the government to brand voters.

In California, the votes of actual citizens might be in jeopardy

In California, DOJ sought to segregate mail-in ballots connected to individuals on its list while their citizenship eligibility was checked. California challenged the list. The Ninth Circuit panel’s majority denied emergency relief. Judge Patrick Bumatay dissented, arguing segregation would shield lawful voters pending review. [2]

Attorney General Rob Bonta’s office represented California, which opposed the effort along with Los Angeles County. [8] Elias said his firm, Elias Law Group, represents Latino organizations in the case; an opposition brief identifies those clients as Services, Immigrant Rights and Education Network (SIREN) and Mi Familia en Acción. [9] [1]

According to Elias, that list is problematic and might ensnare lawful voters. [1] After the livestream, on October 31, according to the Associated Press, a court filing by the UCLA Voting Rights Project said its researchers couldn’t match 8,880 of the names on DOJ’s list, 42 percent of the 20,930 names, with California voter registration records. At least 22 people on DOJ’s list appear to be U.S. citizens, the researchers said in the court filing. [10]

DOJ had resisted handing over the list in a separate case brought by the Coalition for Humane Immigrant Rights and a naturalized U.S. citizen, which challenges the government’s voter list-matching project and its possible effect on denying votes to lawful U.S. citizens. The court ordered DOJ to provide the list to the plaintiffs, and DOJ agreed to disclose it under set conditions. [11]

To me, litigation matters even before cases are resolved. DOJ had to disclose the list to the plaintiffs, which allowed researchers to examine it and raise questions about it. It’s important that a government assertion be held up against available evidence.

Challenges to certification in Alaska and Texas

Elias Law Group also represents clients opposing efforts to block certification in Alaska and Texas. DOJ brought the Alaska case; the Texas case was brought by the Potter County Republican Party and a voter.

In Alaska, DOJ has said voters might be confused about whether they voted for incumbent Republican Sen. Dan S. Sullivan or another candidate named Daniel J. Sullivan; the Democratic candidate is Mary Peltola. DOJ is seeking to stop certification of the Senate election results. In an October 30 motion for emergency relief, DOJ asked for expedited discovery as well as the preservation and segregation of potentially affected ballots. DOJ cited media reports on Democrats’ recruiting efforts in the race. [12] [13]

According to Elias, DOJ doesn’t have the authority it claims under the National Voter Registration Act. [1] After the livestream, his firm along with local counsel, representing Alaskans for Mary and the Democratic Senatorial Campaign Committee (DSCC), filed an October 31 brief urging the court to dismiss the case. [14] Alaska election officials, Common Cause and the League of Women Voters of Alaska have also called for dismissal. [12]

Elias Law Group also has sought to intervene in the Texas case. The plaintiffs sought to stop certification of federal election results until there’s a statewide hand count of every paper ballot, arguing that electronic voting machines are vulnerable to hacking and manipulation with artificial intelligence. Those allegations don’t establish that an election has been compromised. [15]

Elias said intervention was necessary so Democrats would have a voice in responding rather than leaving the defense entirely to Republican state officials. He also warned that a last-minute hand count statewide could make it nearly impossible to meet deadlines for certifying the election. [1] His firm and local counsel filed to intervene on behalf of the DSCC and the Democratic Congressional Campaign Committee (DCCC); the NAACP Texas State Conference, League of Women Voters of Texas, MOVE Texas Civic Fund and Common Cause also have sought to intervene as defendants. [16] [15]

At the time of this writing, a hand count statewide was being sought in the lawsuit; Elias was speaking to the potential effects of a court decision that could order such a hand count.

Protecting election workers is part of protecting voters

Another lawsuit Elias referenced at 16:26⁠ was brought by SEIU to protect California election workers from threats from the federal government; he encouraged viewers to look at the lawsuit for themselves. [1] The lawsuit, brought on behalf of SEIU, AFSCME, LULAC and the NAACP by lawyers with Protect Democracy, the Legal Defense Fund, Democracy Defenders Fund and Altshuler Berzon, challenged threatened criminal prosecution to coerce local officials over ballot handling. [3]

On October 30, the court entered a temporary restraining order barring federal pressure to stop processing, segregate or withhold ballots solely on allegations of voter ineligibility. It also limited threats of criminal prosecution for refusing those demands or counting ballots lawfully. The TRO required notice to government entities that received the letters and disclosure to the court of related demands for election materials. These protections are temporary; the case remains ongoing. [3]

Similarly, the ACLU reported on October 9 that a federal court issued a decision striking down the Trump administration’s efforts to consolidate voter data in a case brought by Common Cause and voters. Lawyers with the ACLU, ACLU of D.C., CREW, Protect Democracy and Harvard’s Democracy and Rule of Law Clinic represented the plaintiffs, arguing that the policy violated privacy protections and improperly meddled with states’ authority to administer elections. [17]

To me, these cases matter because election workers need to be able to do their jobs. A decision that protects election workers from undue influence by the federal government may also protect the votes of those they’re counting.

These examples don’t begin to capture all the efforts being made by numerous organizations, coalitions and lawyers to defend voting rights and election integrity. And while there’s plenty of overlap among these efforts, they’re not all the same. It’s important to recognize the full breadth of response and acknowledge the contributions of all who are working to defend democracy, not narrow it to the efforts of one prominent lawyer.

What Democrats are actually doing

Turning his attention to Democratic leadership, Elias pushed back against those who’ve criticized Democrats. At 56:03⁠, he said:

“Democrats on Capitol Hill are fighting back.”

As someone who’s involved in this work through his own law firm, Elias pushed back against characterizations that Chuck Schumer, Hakeem Jeffries and members of their caucuses haven’t done anything to push back, pointing to steps like getting involved in legal efforts and other preparations to be ready for Election Day and beyond. [1]

Elias Law Group represents the DSCC, DCCC, Democratic Governors Association, Nevada State Democratic Party, Sen. Chuck Schumer (D-NY), Rep. Hakeem Jeffries (D-NY) and a California voter in a case challenging efforts by the administration to pressure state and local election officials. Their October 31 court filing, which came after the broadcast, seeks emergency relief and lays out their argument that they have standing, meaning they face concrete, actual or imminent harm tied to the challenged conduct that a court order can remedy. [18]

Whether they have standing is an active point of contention in the case, Democracy Docket reported. A judge, James Boasberg, asked questions about the plaintiffs’ standing in court and has allowed limited discovery about contacts between the administration and state and local election officials. The administration turned over some documents related to conversations with California, Washington, Nevada, Pennsylvania and New Jersey, with some caveats, including leaving out oral communications that weren’t documented. That discovery order did not grant the emergency, nationwide relief the plaintiffs asked for. [19]

Elias also discussed a three-part strategy laid out in an October 30 letter from Schumer. Convene a briefing for the Democratic caucus with Elias, monitor reports from Senate election observers on Election Day and set up a “war room” after the election to share information among Senate offices, the House, allies and attorneys. The point, Schumer said, is to be prepared to respond to efforts to challenge the results and try to make sure the election is certified on time. These were announced plans, including a briefing that was still upcoming when the letter was issued. [4]

More preparations were outlined October 28 by the office of Rep. Christian Menefee (D-TX), who said Joe Morelle, the senior Democrat on the House Administration Committee, has spent months coordinating with outside attorneys and election-protection groups and mapping out some 150 election threats. Menefee’s office described preparations by legal teams and election observers to monitor the count, respond to certification challenges and seek legal action against unlawful intimidation. [5]

Those are the steps Elias and others have publicly detailed. Ultimately, I guess, the effectiveness of Democrats’ plans will be measured by whether or not they get the right information to the right people quickly enough when problems arise, and whether or not their legal efforts end up defending voters. Stay tuned.

Were DOJ’s letters to all 50 states demands to throw out votes?

Those preservation letters were not. They reminded states of an existing requirement to keep federal election records, including ballots, for 22 months and warned of criminal penalties for willful violations. [20] I think the timing of those warnings, right before a federal election, deserves scrutiny.

On the broadcast, Elias included DOJ’s recent letters to all 50 states in the government efforts he said are meant to intimidate state and local election officials. [1] Those letters, Democracy Docket noted, are separate from demands involving specific voters’ ballots. [20]

Could federal officials try to seize ballots?

Elias floated the possibility that the administration might try to seize ballots or election equipment as an escalation of pressure on state and local officials. But in the passage beginning at 13:27⁠, he added:

“Again, I don’t have any inside information here.”

He was describing what he thought might happen, without claiming knowledge of a planned seizure. [1]

Correction

At 54:58⁠, Elias walked back his earlier claim that reporting by Bloomberg News indicated Trump had personally ordered the criminal investigations of California election officials. [1]

What else should you know?

My advice is to watch what, exactly, the administration is asking for in these cases and in its contacts with state and local election officials, whether courts issue orders limiting that behavior and whether officials comply with those orders.

And, if you have any questions about how, where and when to vote, reach out to your local election official (this directory⁠ might help you find them). If something goes wrong with your vote, find out what options are available in your state or locality, and any deadlines that come with them. [21]

You can also call or text a coalition called Election Protection (866-OUR-VOTE, 866-687-8683) for assistance from a trained volunteer if you have questions about voting, run into issues while trying to vote or feel like you’re being intimidated. [22]

The vote count could take a while, so please hang in there

Depending on where you live, counting and certifying votes may be an especially long process that goes well beyond Election Day, what some people have described as slow television. The length of the count alone shouldn’t be mistaken for evidence of illegitimacy. [6]

Conclusion

The efforts I’m writing about here warrant more attention, even when they succeed and things end up looking like business as usual: Votes get counted. Election workers can do their jobs. Election results get certified.

Are these and other efforts enough to defend the counting and certifying of votes this year? Only time will tell, and it’s worth watching what happens next, including if appeals or new demands lead lawyers to regroup and try again. Celebrate their wins. Challenge them when they fall short.

Ultimately, my yardstick is people who are eligible to vote should be able to do so, their votes should be lawfully counted and the results should be duly recognized. Keep that in mind as you weigh the claims of all involved, especially, but not only, those in government.

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