Voting During a Pandemic

Episode Notes

Transcript

Lawyer 2 Lawyer: Law News and Legal Topics

Voting During a Pandemic

04/17/2020

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Edward B. Foley: Logistically it’s going to be a challenge for lots of states to meet the high demand for absentee voting that’s likely to occur this year, because of the pandemic, and so it’s both a logistical issue and a legal issue.

Charles Stewart III: If you are in a state that allows you to request a ballot for any reason, I would say go ahead and request the ballot for November. Do it now.

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Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from sunny Southern California.

I write a legal blog named May It Please The Court and have a book out titled ‘The Sled’ and ‘How to Get Sued’.

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On April 6, 2020 Election Eve in Wisconsin, the Supreme Court here in the United States ruled in favor of the Republican National Committee and Wisconsin Republicans refusing to extend the deadline for absentee ballots in Wisconsin in the middle of the current pandemic. With thousands of voters no longer able to vote by mail this decision led the long lines that understaffed voting locations in a reduced number of voting locations across Wisconsin as voters in masks attempted to maintain safe distances from each other.

We’re currently living in uncertain times where a public health crisis has taken center stage. In our voting process, the scene in Wisconsin is going to be tested and strained. As we approach a major nationwide election this November, what kind of obstacles can voters expect to face on Election Day?

Well, today on Lawyer 2 Lawyer we’re going to discuss voting during the pandemic. We will take a look at SCOTUS’ Wisconsin primary decision, Vote-by-Mail and the impact the pandemic, will have on the upcoming election.

And to do that we’ve got two great guests for you today. Our first guest is Edward Foley. He holds the Ebersold Chair in Constitutional Law at Ohio State University Moritz College of Law where he also directs its Election Law Program. His book ‘Presidential Elections and Majority Rule’ available from Oxford University Press this year excavates the long-forgotten philosophical premises of how the electoral college is supposed to work as it’s been revised by the Twelfth Amendment to the United States Constitution.

Well, welcome to the show, Ned.

Edward B. Foley: Good to be with you, Craig, thanks.

J. Craig Williams: And next up we have Charles Stewart, III. He is the Kenan Sahin Distinguished Professor of Political Science at MIT, where he has taught since 1985. he is a Fellow of the American Academy of Arts and Sciences. His research and teaching areas include congressional politics, elections, and American political development. Charles is currently the Director of the Caltech/MIT Voting Technology Project, a leading research effort that applies scientific analysis to questions about election technology, election administration, and election reform.

Welcome to the show, Charles.

Charles Stewart III: Glad to be here.

J. Craig Williams: Well, Ned, I’d like to turn to you first and kind of have you give us a framework of what voting rights are in a Constitution, how it’s going to be handled in the pandemic and what happened in this United States Supreme Court decision that has generated so much interest?

Edward B. Foley: Sure. Well, Wisconsin is a warning sign for November and for the country. We have a constitutional commitment to one person one vote, full participation for all citizens, all eligible voters and that was maybe going to be a challenge this year anyway, but the virus is certainly making it an extra challenge.

I mean I do think the good news is we still have time between now and November and so we can get this right. We can run a free and fair election where voters do have full opportunity to participate and we can be also adequately attentive to any integrity or security concerns. But Wisconsin showed us the potential of what can go wrong and what can happen if there isn’t adequate preparation or not enough time is available.

And so, let’s learn the lessons, because we can learn some important lessons from what happened.

J. Craig Williams: Charles, let’s talk about the technology. I mean, there’s been some rumor that the United States Supreme Court or the Wisconsin Supreme Court met virtually over the Internet in order to reach these decisions?

Charles Stewart III: Right. I mean, indeed yes.

(00:05:00)

J. Craig Williams: It doesn’t have great optics, does it?

Charles Stewart III: No, it doesn’t, nor does a leader of the Wisconsin Legislature fully-dressed out in protective gear, suggesting that everything is perfectly fine in Wisconsin.

So I mean the optics all around, we’re not particularly good before, during and somewhat after the primary.

J. Craig Williams: Are we going to be set up to handle a technological vote of any kind?

Charles Stewart III: A technological vote, I don’t think so. I mean I think that one of the things I think that we need to make clear in this coming election is that there are a number of things we need to be doing, both to extend voting by mail and to make it safe to vote in-person. But I think that the idea that we’re going to be voting remotely on the Internet, through the apps, things like that in large numbers, that’s where we don’t want to go for this election.

J. Craig Williams: Ned, let’s talk about this 5-4 ruling from the United States Supreme Court and the kind of stinging dissent that Justice Ginsberg wrote. She pointed out that people will get their ballots, their absentee ballots after the postmark deadline?

Edward B. Foley: Right. The 5-4 nature of the Supreme Court decision is part of the bad optics, because it was 5 Republican appointees on one side supporting the Republican National Committee, its position and it was four Democratic appointees on the other side supporting the Democrat National Committee.

Again, not blaming anybody for that it’s just an unfortunate situation that a election case of this nature ends up split in that apparently partisan way. It would be much better if we could get 9-0 decisions out of the Supreme Court, maybe that’s unduly idealistic. But these 5-4 splits and election cases are hard to handle from the public perspective of thinking that the system is neutral and impartial in a referee that’s fair to both sides.

So going to the issue of the absentee votes and the disenfranchisement, Justice Ginsburg was absolutely right. You had voters here who did nothing wrong. They were eligible voters, they had requested their ballots on time, but the government had failed to send them to the voters with enough time for the voters to get them back by their deadline which was Election Day under the statute.

So there was a serious problem of disenfranchisement at the government’s hands that needed to be remedied, otherwise you were risking commitment — the agreement and fulfillment of the constitutional principle of one person one vote, which was very much in play.

On the other hand, the majority opinion in the Supreme Court had a valid concern. The District Court was well-intentioned in its remedy and it thought it needed its particular remedy to protect against disenfranchisement, but part of its remedy was in effect to extend Election Day, not just for when the ballots could be cast and mailed, but the District Court said it would be okay to cast absentee ballots up to six days after the polls had closed or after the election was supposed to be over.

And that is something to be worried about. I mean just think about the November election, which is supposed to be November 3rd, we really don’t want a set of voters to be able to vote on November 6^th, 7^th or 8^th. So there were two competing principles at stake. The majority was more concerned with one and the dissent was more concerned with another, and you’d like there to be some common ground to honor both principles. There may be a way to find one for November but they couldn’t find one in time for the US Supreme Court in Wisconsin.

J. Craig Williams: Charles, did the disenfranchised voters have any remedies?

Charles Stewart III: Well, really not. I mean, the voters were — well, there actually was one remedy which was to show up on Election Day and vote. Now if you were needing to vote or wanting to vote because of your concern about catching something or giving it to somebody else, then it’s not a particularly savory remedy, but that really was the way to what you had to do.

Wisconsin for whatever reason made a policy choice to not allow ballots to arrive after Election Day, so it really does kind of put the onus on the voter to get the request in well before Election Day and then hope the ballot gets back, but if it doesn’t get back and you’re not notified about it then you’re kind of stuck.

Edward B. Foley: Can I just jump in with one more thought and I’d be curious as to Charles’ idea on this, because this was not something that I thought about ahead of time, but as I was concerned about the disenfranchisement and worried about those voters, it occurred to me that there might be a solution to think about for November, too late now.

(00:10:09)

And that is, there is a provision in Federal Law that’s only available for military and overseas voters and it’s called the Federal Write-In Absentee Ballot, and it’s designed to meet essentially the same kind of problem that occurred in Wisconsin that’s happened in the past overseas. Soldiers and sailors will request an absentee ballot from their State government, they will do that in time, they are eligible voters, they will do everything right, but because mails are slow overseas and sometimes states are late in printing their absentee ballots and whatnot, they fail to get the absentee ballot to the service people overseas.

And so Congress said, we can’t disenfranchise people who were protecting us. So Congress created an emergency backup ballot that if the official state ballot doesn’t arrive and it’s available it’s called this Federal Write-In Absentee Ballot, it’s generic, it applies to any state or any election, and that is a way to avoid the kind of disenfranchisement that Justice Ginsburg was worried about because if the military voters ballot doesn’t arrive they have got this substitute. Now they have to cast it before Election Day but it can arrive afterwards and as long as its cast before Election Day Congress requires the states to counted in a federal election.

Now, again nothing like this existed in Statutory Law in Wisconsin or Federal Law for that matter for the average voter in Wisconsin who didn’t want to go to the polls the way Charles was suggesting because they were afraid of their health, but it might have been a better remedy for the District Judge if it said instead of voting a ballot five or six days later let’s download that available Federal Write-In Absentee Ballot and use it kind of for a different purpose or for this pandemic-related purpose or let’s invent a substitute emergency absentee ballot, because I think that remedy would have satisfied Justice Ginsburg know disenfranchisement, it also should have and would have I think satisfied the majority because no extension of the time to vote after Election Day. So there might have been a compromise that just things happen too quickly for anybody to see it.

J. Craig Williams: What is the problem, Charles, with extending the deadline to vote?

Charles Stewart III: Well, there’s two ways of extending the deadline to vote. I mean, one is which was suggested in Ned’s description that we have a tradition in this country of an Election Day, and once the Election Day has occurred then hands off the pencils and you are done. I mean, there’s a practical concern which is that you can start leaking out me that the results can start leaking out and while the folks in Wisconsin were very good and holding on to all the information including some information that they probably could have released like turnout information. They were very good in holding on to it and states around the country have been very good in holding on to information that they have saved during the early voting period.

And so that’s good but one could imagine in another state or in another time or maybe even this time folks leaking out the results, and if you are leaking out the results during the counting and then give people the opportunity to come in with your forces and to load more ballots into the process, I mean, that almost sounds like the definition of ballot box stuffing, which I think there’s a bipartisan aversion to it and a consensus on that one.

And so, I mean, I agree with Ned, I mean, Ned has the legal principles, I mean, I am thinking about kind of the history of policy in the United States. I mean, I think it’s widely understood that once the election is over all the pens are down no more voting, and anything that looks like adding new thumbs to the scales whatever metaphor you want to use after you have an inkling of the outcome is seen as being just a fundamentally illegitimate type of action in an election.

J. Craig Williams: Well, gentlemen, before we move on to our next segment we are going to take a quick break to hear a message from our sponsor. We will be right back.

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(00:14:51)

J. Craig Williams: Welcome back to Lawyer 2 Lawyer. I am Craig Williams and with us today is Ned Foley, the Director of Election Law at Ohio University, Moritz College of Law; and Charles Stewart III, the Director of Caltech MIT’s Voting Technology Project.

We have been talking about the recent Wisconsin decision before the United States Supreme Court about voting deadlines. Who has the authority Ned under the Constitution to determine when the election is going to be set and whether it can be continued? Are we going to expect President Trump to take the rein here and say he has got total authority over this one too?

Edward B. Foley: Well, if he says that he would be wrong and I think that he would get significant push back on a bipartisan basis by virtually everybody else in the system; Secretaries of State at the state level and even both parties in Congress. I think it’s pretty clear that election day for November for both congressional elections and the Presidential, that’s set by Congress. And so we are going to have an election on November 3, that date isn’t going to be changed, the question to think about in light of Wisconsin and everything else going on is whether there can be problems that happen that will put pressure on completing the election properly with full enfranchisement by the time the polls are supposed to close on November 3.

Unfortunately, there could be a repeat of what happened here, namely as you pointed out, voters who were supposed to get their absentee ballots, they did the right thing, but them not getting them. So they can’t cast them because they haven’t received them. That could happen in Pennsylvania, in Michigan and other battleground states, states that have the same kind of statutory deadline that Wisconsin has, where they are supposed to be returned by 8 p.m. on election day and yet impossible, physically impossible for voters to do that if they didn’t receive the ballot in the first place.

And logistically it’s going to be a challenge for lots of states to meet the high demand for absentee voting that’s likely to occur this year because of the pandemic and so it’s both a logistical issue and a legal issue. So we may be facing again a situation with what kind of remedy to exist if this problem occurs; we hope the problem won’t occur and that logistics can avoid disenfranchisement, but if we have the same kind of situation, we are going to have to come up with a new remedy because it wasn’t remedied in Wisconsin.

J. Craig Williams: Well Charles, let’s take Ned’s point and apply it practically to where we are right now. I mean I get my ballots by mail because I signed up for it, but for our listeners who haven’t signed up for absentee balloting and want to figure out let’s plan ahead for November, what do they need to do now?

Charles Stewart III: Well, it really depends on the state that they live in. if you live in California or Arizona, you can put your name on a permanent list and you are good to go either for the rest of the year or the rest of your life. If you live in one of five states you don’t really have to do anything other than to be a registered voter and on the active part of the registry.

For all the other states and that’s roughly 40 of them, you are going to have to take some sort of positive action to request a ballot. In most cases you could go ahead now and request the ballot for November. And so if you are in a state that allows you to request a ballot for any reason, I would say go ahead and request the ballot for November, do it now, you can certainly do it now.

J. Craig Williams: And who do you ask, I mean in California I believe it’s called the registrar, right?

Charles Stewart III: Right. And again that really varies by state, so what I would recommend for people to do is to go to their county or municipal election board website, probably easiest is to go to the state election department website and find out the information there, virtually every website I am aware of has links and information about what to do to apply. Some states have a centralized online application or online request system, you fill it out and you are on the list. Others will give you the information about how to contact your county or municipal board.

Unfortunately though it’s very state specific, so I would start with the state election authority, the election department, the Secretary of State, even there there is variability, but start with the state election department and find out the information there, but act now.

J. Craig Williams: Right, excellent advice. Well Ned, let’s talk as well about something else that Justice Ginsburg mentioned in her dissent and that’s the future of litigation. I mean she took issue with the eleventh hour nature of the lawsuit that was filed to deal with this and I think she was taking Democrats to tasks there. So what can we expect for litigation when it comes to the federal election that’s coming up?

(00:19:52)

Edward B. Foley: Oh, a lot of it. I mean Marc Elias, one of the leading lawyers on the Democratic Party’s side, has publicly announced essentially that he plans a series of lawsuits from his perspective to try to improve the voting process. He has got litigation already in Arizona and in Michigan so he is not shy about that.

Now, in some respect it’s better to have litigation early than right — if you are talking about November, some of his lawsuits were brought over a year before the November 2020 election and to the extent that you are going to have to have litigation at all, it’s less destabilizing to voters and to administrators as far as possible in advance. So that way you can clear up some of the ambiguities and codes and some of the problems.

What is really hard on the system, both the judiciary and everybody else, is the last-minute lawsuits and there is a principle in law called the Purcell Principle after one of these cases that’s designed not to have last-minute litigation that is destabilizing. But as Wisconsin showed there can be last-minute events in the real world that trigger problems that necessitate litigation that’s not the lawyer’s fault or the litigant’s fault; they just have to be reacted to.

This happens sometimes on election day with respect to polling places, there is a power outage at a particular school or a flood or something and people go to court and say we need to extend the voting hours at this one precinct for two hours, because in the middle of the day nobody could vote because of the flood or the power outage or what have you. That kind of lawsuit can’t be told you should have brought it two months earlier. So the Purcell Principle is designed to stop lawsuits that should have been brought well in advance.

So I think the way to think about litigation is before, during and after, kind of like what Charles was talking about earlier in our conversation, there is a period of time well ahead of election day which is one kind of lawsuit.

Then there is lawsuits right in the middle of the voting process, which are kind of the hardest to deal with because they are so fast moving and emergency.

And then a third kind of lawsuit, which Wisconsin I think has avoided at least for their statewide election, but is conceivable is after the polls close and it’s time to count the votes and you actually litigate the result and say that there is something wrong with the reported tallies; that was Bush versus Gore in 2000, in Minnesota’s US Senate race involving Al Franken and Norm Coleman in 2008, there were lawsuits over the results. So that’s a third kind of lawsuit that potentially could exist in November if it’s very close and disputed.

J. Craig Williams: Charles, let’s talk before we wrap up about voter IDs and voter fraud. What are the issues that surround those two points?

Charles Stewart, III: Well, voter ID very quickly, I mean voter ID has become the favored reform, if you will, among Republicans and Republican state legislators who either — some people say it’s to make elections more difficult for Democrats. My take is that Republicans on average have a different view about access to the polls and the propriety of requiring people to demonstrate whether they should be allowed to vote.

In any case, this has been a favorite reform and voter IDs have been accelerating as a policy across the country, although it’s slowed down a little bit in recent years and states have settled into kind of equilibrium.

Now, supporters of voter ID justify them based on concerns about fraud and it has to be said immediately that the type of fraud that would be deterred or detected by voter ID, that is voter impersonation fraud is homeopathically rare. I mean it just almost never occurs as we observe it.

And in fact, there is another type of rare voter fraud which is absentee ballot fraud, but it’s slightly more common than impersonation fraud and in any event the amount of fraud that we discover in either the mail route or by people impersonating other voters is pretty rare.

The cases that we see very commonly are almost kind of a garden variety of fraud and people are reluctant to call them fraud sometimes; it will be the widow who knows what her recently deceased husband would have done on election day and she votes his ballot. Somebody who believes that they were re-enfranchised when they got out of prison and they weren’t, it’s things like that which are technically fraud, but when you look behind, the intentions are usually either innocent or well-meaning.

And those sorts of questions are becoming — I think are being renewed because adding more mail ballots does raise the question about well, where are those ballots coming from and does having more mail ballots increase the opportunity of bad actors perhaps to do nefarious things with the ballots.

(00:25:05)

J. Craig Williams: Right. Well gentlemen, we have just about reached the end of our program and it’s time to wrap up with your final thoughts and your contact information if you would like.

So Ned, we will turn it over to you to go first.

Edward B. Foley: Well, thank you. I think this year this election is important for so many reasons, but I think it is going to be a test of our capacity to have a successful election. I think we will, I certainly hope we will, but Wisconsin has put us on notice that it’s not a guarantee and it’s what we do collectively as a society between now and November that will determine whether we will be able to say that we did it successfully or not.

So let’s get to work and let’s make sure that we continue our tradition of free and fair elections. And we are committed to that at our Election Law @ Moritz Program at Ohio State, that’s the best place to find us. You can google us or email me at [email protected], but it’s Election Law @ Moritz and on to November.

J. Craig Williams: Wonderful. Thank you. And Charles.

Charles Stewart, III: Well, just to follow up on the spirit there. I mean as a political scientist I like to quip that what’s bad for the country is good for business and I think that the chaotic election and confusing election in Wisconsin will actually be good as a reminder that if the country does — if there are not bipartisan solutions to the problems facing voting in the current time then we can have bad illegitimate outcomes at the end. It shows the stakes behind taking emergency actions to de-densify in-person polling places and making sure that November is as safe and secure as is possible.

And so I am hoping that Wisconsin shows the dangers of leading with partisanship in terms of addressing this emergency and shows that some simple solutions such as being more generous in allowing for mail ballots and being more generous with some deadlines will both save lives and will encourage more people to vote.

And if people are interested in contacting me, probably the easiest way is through my email at MIT which is [email protected].

J. Craig Williams: And that’s S-T-E-W-A-R-T?

Charles Stewart, III: Correct.

J. Craig Williams: Great. Well, thank you very much gentlemen. And as a wrap, I would like to thank Ned Foley and Charles Stewart for joining us today. It was a pleasure having you both on the show.

For our listeners, if you have liked what you heard today, please rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app.

You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I am Craig Williams, thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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