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Election Day has been surprisingly calm. But does that mean the threats to the results are behind us?
Former U.S. Attorney and legal analyst Joyce Vance joins me to break down the legal battles that could still lie ahead, from the Justice Department’s reported targeting of election lawyer Marc Elias to concerns over federal poll monitors and potential challenges to election certification.
Vance explains why she’s feeling more optimistic than expected, how lawyers and election officials have prepared for potential interference, and why she believes the courts are ready to protect the results.
Jessica:
Hi everyone! Republican Ashley Moody has won Florida’s Senate race. That is a Republican hold. No change in the vote totals there. In North Carolina, Democrat Roy Cooper has won, flipping a Republican held seat. That is a pickup for Democrats. Tight now between those two seats, one Republican holds one Democratic pickup. It’s plus one for Dems.
We’re going to turn our conversation a bit away from counting votes and analyzing the map, to considering Donald Trump’s attempts to undermine this election and what might come next. So far, today has been relatively calm, but not without incident altogether. I can’t tell you how pleased I am that we have such a wonderful person joining us to talk about this.
Joyce Vance is joining. She’s the former U.S. attorney for the Northern District of Alabama and a legal analyst. You know her if you watch any news at all. She will help us understand what happens next and what we can actually do to protect the results.
Jessica:
Joyce, first of all, how are you? How are you feeling tonight?
Joyce:
I am upbeat and optimistic. It’s a great day to be a Democrat in America — and someone who’s pro-democracy.
Jessica:
I think part of the reason things have gone smoothly and well today is because people like you helped everybody get very, very prepared for all eventualities.
Joyce:
I don’t get any credit for today. But there is just such an amazing conglomeration of lawyers and activists, union leaders — you know, just the pro-democracy movement in this country, that has made it clear to Donald Trump that they don’t intend to sit down and take it any longer. As an American citizen, I find that to just be a wonderful sort of a vibe for the day. I don’t think I was expecting to feel this good. I thought that there would be more drama and trauma before we got to this point.
Jessica:
Me too. I think we all have a lot of election PTSD from past years. Like, is it really okay? Things are okay?
So, though the day has been largely uneventful, it is the case that the Justice Department sent letters to Democratic election lawyer Mark Elias and others. Can you help us understand: What are they demanding? What do you make of this timing?
Joyce:
We know very little about this, other than the fact that the letters were sent, but they appear to be what in Justice Department parlance is called “target letters.” These are letters that prosecutors send to people that they are preparing to indict shortly before they indict them, to give them the opportunity to make their final case or to testify in the grand jury if they want to. What they really end up being, in virtually all cases, is something that motivates plea dealing before there is an indictment — really the best time that a defendant can come in and make a deal.
I don’t think that we will see Mark Elias cutting a plea deal with the federal government for nonexistent crimes. It’s worth noting, by the way, that even if there were crimes here, which I just think it’s very hard to contemplate — this is around the situation with the Alaska race, where there’s an allegation of ballot stacking, which may be awful, but it’s also lawful.
The best case for the government is a vindictive prosecution motion, because Donald Trump has been out in public and has been on social media saying that Mark Elias should be locked up, that he should be prosecuted. That’s the same sort of argument that led [James] Comey’s defense team to make an argument for vindictive prosecution.
Jessica:
Since you brought up the Alaska case, and this is about that: Where do you think that heads? If Mary Portola ultimately wins, will they be able to drag this out in the courts for a while?
Joyce:
The problem for the Justice Department in that situation is that Alaska’s highest court has already ruled that the ballot was proper, that the inclusion on the ballot was proper. They didn’t find any sort of criminal misconduct. That’s a big hurdle for the DOJ to overcome. But even if they decide they want to go ahead and bring criminal charges, that doesn’t really have anything to do with the election win. Those would be two separate and distinct entities. So I would expect to see that election certified in fairly short order.
Then, you know, DOJ can, I guess, continue with Donald Trump’s revenge tour, indicting people who have not committed crimes in a terrible abuse of the power of the prosecution, for as long as the attorney general is willing to be a part of that right.
Jessica:
Which is probably as long as he’s in that office. We have also heard reports today of aggressive poll monitors — poll monitors asking voters questions, which they’re not supposed to do. What has been happening that you’re aware of? Are you seeing a broader pattern? What could those poll monitors be up to that could lead to some fallout in the coming weeks?
Joyce:
Frankly, there was a lot of concern about these poll monitors before the election. It’s very routine for the DOJ to send poll monitors out. But they typically go to jurisdictions, to polling places where voters have had problems exercising their right to vote in the past, to make sure that they watch very carefully to see what happens. The DOJ’s rule is never to interfere in elections that are occurring. The DOJ plays a very different role. States administer elections. The Justice Department doesn’t. There were concerns this year because of statements made by Harmeet Dhillon, the head of the Civil Rights Division, that this would be different — that they would be targeting polling places with, for instance, language minorities, in an effort to determine whether or not some of those voters were non-citizens.
Overnight, Monday night, the NAACP, the Legal Defense Fund, and others were in court. They persuaded a judge in the District of Columbia not to give them an injunction to stop some of these practices, but to issue stern warnings about the behavior that was expected from these poll monitors. For instance, they were not permitted to talk to voters at the polling places.
So we heard throughout the day instances where that sort of behavior was occurring. You know, it’s more concerning, I think, after the election than during. It doesn’t look like there was any intimidation factor. Americans are brave. We showed up and voted no matter what today. The issue, I think, will be in some of the very close races where there may be challenges in court, whether or not the DOJ has used these monitors to collect evidence. But given that they were operating under a very restrictive sort of set of rules here, it’s not at all clear that they made any progress using these folks.
Jessica:
It just doesn’t seem like the crisis people were expecting materialized.
Joyce:
Well, the big issue was whether or not they would send law enforcement officers in with arrest power who would, in some sense, have an obligation to make arrests. The concern was that they would abuse that. But it was very clear that they were not permitted to send in law enforcement officers. My understanding is that, by and large, the department did not do that.
Jessica:
I’ve seen some reporting tonight, I think it was from CBS News at the White House, that Trump has said internally that he is not planning to aggressively contest the results. I don’t put much stock in that. He could change his mind in two minutes, tomorrow, whatever. I’m just sharing that with the audience to keep your calm.
I also want to ask you, Joyce, after January 6th — if Trump does decide to do something about unfavorable election results and to try to challenge the certification: Is there any law or legal precedent that’s been stood up since 2020 that would prevent them from refusing to certify a new Congress?
Joyce:
You know, this certification question comes up persistently. I think it’s a nonstarter for a lot of reasons. A big one is the fact that we are also focused on the shenanigans in ways that maybe as a country, we were not as prepared for when January 6th, 2021, happened. I think it’s a different scenario, but also it’s going to be a very different Congress. By the time it comes to certifying and seating, we will very likely have Speaker Hakeem Jeffries or a Democrat in that role. That changes the dynamic entirely.
Jessica:
Well, that’s for ‘28. But what if they try not to seat this Congress?
Joyce:
I think the same thing is true. If they try to prevent certification. There are a lot of measures that are in between this and not certifying. Because the lawyers have prepared for that at every step, I think there’s very little play in the joints for Republicans to block seating.
Jessica:
That’s great to hear. I just don’t want to cover another crazy episode.
Joyce:
I mean, look. I think what we have to accept is that they will try the crazy — that they will not be successful with the crazy. One of the big unsung heroes in this whole, horrible episode for democracy has been federal district judges — who, regardless of the political party of the president who appointed them to their judgeship, have simply looked at the facts and the law and made decisions on that basis. I think that they’re the folks that get us through this, along with people like the poll workers and state election officials.
Jessica:
It’s really true. The judiciary has largely held. I want to ask you to take off your legal analyst hat and be for a moment a political analyst. You were in Alabama, where voters can cast a straight party ballot. Would you explain what that means in practice and what you think it could tell us about the results we’ll see tonight.
Joyce:
You know, this is the damnedest thing, and it’s the curse of the Democratic Party in Alabama, although they sort of brought it upon themselves. Alabama used to be an all-Democratic state, and then around 1990, it shifted. A lot of Republican money was injected. Karl Rove came down for some visits. And we’re now an all-Republican state.
When you go to vote in Alabama, at the very top of your ballot there’s one little blip and you can fill it in with your black ink pen. We used to call it pulling the lever. You used to have to pull a lever. Now you just circle that one little blip and you have voted a straight ticket ballot. You have voted for every Republican or every Democrat on the ballot, depending on what you designate. An enormous number of people in Alabama do that, as opposed to looking at each race individually.
As somebody who has never voted straight ticket, I just don’t really get it. That’s very attractive, apparently, to some people — it saves time. That’s the high hurdle that Doug Jones will have to overcome if he’s going to have a shot at the governor’s race. So it’ll be very interesting. He talked about it a lot. He campaigned on that issue. There’s also a very interesting House race in Alabama. One of the districts that was heavily gerrymandered, supposedly to give Republicans the advantage. It looks like maybe it was a dummymander instead, because the Democrat figure is looking very strong going into tonight. So we’ll see.
Jessica:
Wow. Well, there’s nothing you can’t do. Political analysis. Legal analysis. Reassuring.
Joyce:
I knit. I cook, I mean, you name it, I’m here for it.
Jessica:
I am impressed. Joyce, your voice is such a valuable one, especially on a night like tonight. I am such a fan of yours. Thank you for helping us to separate the real legal risks from the noise.
Joyce:
Oh, it’s my pleasure. Thank you so much for having me.
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