The 2020 Election: Voter Suppression, Mail-in Ballots, and a Potential Legal Fight

Episode Notes

Transcript

Lawyer 2 Lawyer

The 2020 Election Voter Suppression, Mail-in Ballots, and a Potential Legal Fight

10/30/2020

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Transcripts this is something that we’ve been dealing with in election after election in recent years with all these wild claims of voter fraud, and it simply doesn’t exist or at least it exists at a very, very, very low level.  And when it happens, it’s caught.

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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’re listening to Legal Talk Network.

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J. Craig Williams:  Welcome to a special episode of Lawyer 2 Lawyer on Legal Talk Network.  I’m Craig Williams coming to you from Southern California.  I wrote a legal blog named May it Please the Court and have two books out called How to Get Sued and The Sled.

Well, before we introduce today’s topic, we’d like to take this time to thank our sponsors, LEX Reception and Blue Jay Legal.  LEX Reception is a close-knit team of virtual receptionists dedicated to professionalism, warmth and 24/7 availability for law firms and attorneys.  Blue Jay Legal’s AI powered foresight platforms accurately predict the court outcomes and accelerate case research by using factors instead of keywords.  You can learn more at bluejlegal.com, that’s blue, the letter j, legal.com, bluejlegal.com.  Controversy over ballot drop boxes in California, long lines for early voting, intimidating emails to voters from Iran and Russia, a call for army of poll watchers from the president, two SCOTUS decisions, one blocking curbside voting in Alabama, another blocking a request to allow an extension of the absentee ballot deadline in Wisconsin.  These are some of the issues that porters will be facing around the nation as we approach election day on November 3, 2020.  So what impact will all of these issues have on the upcoming election?  Today on Lawyer 2 Lawyer, we’ll spotlight this election.  We’ll take a look at the variety of legal issues leading up to the election, voter suppression, voter intimidation, controversy over mail-in ballots, and the potential legal fight awaiting us after the election.

Our guest today is Professor Joshua a. Douglas from the University of Kentucky, J. David Rosenberg in College of Law.  Josh teaches in Researches Election Law and Voting Rights, Civil Procedure, Con Law and Judicial Decision Making.  He’s also the author of Vote for Us, How to Take Back our Elections and Change the Future of Voting.  A popular press book from Prometheus that provides hope and inspiration for a positive path forward on voting rights.  Welcome to the show Josh.

Joshua a. Douglas:  Thanks Craig for having me.

J. Craig Williams:  Well, what is the basic law about voting?  Is it one person one vote?  Is that how it works in in the United States?

Joshua a. Douglas:  Well there’s not really one law.  There are 50 laws because our elections are very decentralized or 51 including Washington D.C.  And in many ways, there are thousands of procedures because our elections are run at the local level. So although we do have some constitutional boundaries and constitutional rules that we would at least hope the courts would enforce, elections are run very different ways in different states depending on the various policies that the states adopt.

J. Craig Williams:  Well, for example, I read in my voter booklet here in California that we have up to 17 days after the election to get our ballots in as long as they’re postmarked by the day of the election.  I think in Pennsylvania, it’s going to be late if you’re more than three days late.  That’s the kind of different laws you’re talking about, right?

Joshua a. Douglas:  Yeah, different laws in terms of, you know, even who is eligible to vote by mail, you know, we have an increase in mail in voting this year but there are still five States that won’t allow general concerns about the pandemic to be a valid excuse to vote via absentee ballot.  So those States are Indiana, Tennessee, Texas, Louisiana and Mississippi.  And so you have a handful of States where anyone can vote by mail.  You have a handful of States where voters are automatically mailed the ballot, universal vote by mail.  Like you have in California, they were sort of doing it at some local level and I think the State has now done it statewide for this year where you have other States where you have to request it and provide an excuse where COVID-19 doesn’t account.  You have different rules about the types of machines that are used for in-person voting, different rules about when the polls are open.  So we really have a ton of different procedures pf the patchwork of rules with, you know, you said one person one voter that the constitutional right to vote is kind of this amorphous standard that’s out there that in theory the court should enforce but really elections are to run at the local level.

J. Craig Williams:  And what kinds of things happen to suppress the vote.

(00:05:00)

I mean there’s been a lot of actions taken by various entities to like, for example here in California the GOP put out unofficial ballot collection boxes that is raise the huge fuss.

Joshua a. Douglas:  Yeah, I mean so the term voter suppression can mean a lot of different things and there’s lots of practices that people point to and say that’s voter suppression. I define it as any election rule that makes it harder for people to participate for no good reason.  So we have election rules that have good reasons behind them.  We need the election to be over for example and so we need to have an end date or an end time when the polls are going to close.  And someone that shows up after that who, you know, otherwise didn’t have a hard time, you know, it wasn’t traffic or something like that or

something out of their control, they just show up late, you know, I’m not sure that’s necessarily voter suppression if they had lots of opportunities to participate.

When we think about voter suppression, we think about rules that make it harder with the state having no good reason to impose them.  So this year we’re seeing things like a limit of drop boxes where voters can return their ballots, at the same time they were undermining people’s feeling towards the postal service and feeling about how reliable the postal service is.  You know we have situations where states might mail out an absentee ballot to someone and yet then require them to mail it back in but there may not be enough time.  So Missouri is a good example of this where if you have a valid excuse like normal years, you can request an absentee ballot and you can either mail it in or return it in person but they did expand the rules this year for those with just general COVID-19 concerns so they can request an absentee ballot, but the state is forcing those individuals to mail it back in with a receipt deadline of election day itself.  I think that’s suppressive because there’s no good reason to treat the two kinds of ballots differently.  And then of course, you get voter ID laws and you know changes of polling places and there’s lots of situations where we’re making it hard to vote for no good reason.

J. Craig Williams:  Poll taxes?

Joshua a. Douglas:  Well, we don’t have explicit poll taxes anymore like we used to but we have indirect poll taxes.  For example, a photo ID law can be seen as a poll tax because you need to obtain the underlying information like a Birth Certificate to obtain an ID and that costs money.  Florida is engaging in what I would call a modern-day poll tax with respect to its Felon Disenfranchisement Law that states voters overwhelmingly passed a state constitutional amendment to re-enfranchise 1.4 million citizens who had completed their sentences for a felony conviction and then the state legislature passed the law and said to get the right to vote back you also have to have completed all of your fines and fees, your legal financial obligations.  Now this was litigated under an argument that it’s an unconstitutional poll tax under the 24th amendment and even though a lower court agreed the 11th circuit voted 6-4 in an on-bonk case that it was not an unconstitutional poll tax even though the only thing keeping individuals from the ballot who otherwise are eligible to regain the right to vote is the fact that they haven’t paid off their fines and fees and the state doesn’t even know which people haven’t paid them off and how much they owe. There’s not good record keeping.  So certainly, modern-day poll taxes are not as direct but they’re still just as pernicious.

J. Craig Williams:  What is the constitutional framework about what is required to show up and vote?  If I walk into my polling place, do I need to give them anything more than my name and my address?

Joshua a. Douglas:  Well, it really depends on state law.  So in terms of a constitutional basis, the U.S. Constitution does not affirmatively grant the right to vote and that surprises a lot of people but there’s nowhere in the constitution that says people or citizens have a right to vote.  Now there are four constitutional amendments that list the right to vote in the negative.  They say no state shall deny the right to vote on the basis of race or sex or inability to pay a poll tax or age over 18 years old.  And the U.S. Supreme Court has recognized the right to vote under the equal protection clause of the 14th amendment, but there’s no affirmative grants.

Now state constitutions do have an affirmative grant of the right to vote and they’re generally — the language is pretty general, I should say.  So state constitutions say things like all citizens shall be qualified electors.  So there’s no constitutional requirement that you can show up to your polling place and say your name and get to vote it’s really up to state law also because the U.S. Constitution in Article 1 Section 4 says that states and state legislatures specifically have the authority to regulate the times, places and manner of holding elections.  Now that clause also says that congress can make or alter those regulations so congress could step in and pass laws about specific things with regard to how to vote, but congress has generally not done.

J. Craig Williams:  We’ve also heard President Trump out there saying well if you’ve already submitted your vote and you want to change it, go ahead.  How does that work?

(00:10:03)

Joshua a. Douglas:  Well, it doesn’t in most states.  This is another example of unfortunately the President either not knowing the election laws or simply lying about them.  There are a couple of states where you could submit a second absentee ballot which has the effect of cancelling the first absentee ballot essentially the election authorities will just count the later arriving ballot.  There’s only a couple states that do this.  I actually have to take another look to see what those are.  I think Michigan may be one of them. I’m going have to look this up, but there’s very few states that even allow that.  And again, it’s not canceling your ballot per se, it’s you know submitting another one that has that effect.  But in virtually every other state, you can’t change your vote and if you voted in person obviously you can’t anyways even in those states and for absentee ballots in most states don’t allow you to do that.

J. Craig Williams:  Well, let’s talk a little bit about voter intimidation.  President Trump has been promoting the idea of armed inspectors, guards or whatever you want to call it at polling places.  What’s going to happen?

Joshua a. Douglas:  Of course, it’s hard to know what’s going to happen, although I think we’ve seen in the early voting states so far that it’s gone relatively smoothly.  You know he’s calling for his supporters to go to the polls and be poll watchers.  Poll watchers are a very specific legal term.  They’re individuals that the election officials have pre-cleared essentially or at least the state typically, the state parties or the local parties will give names of individuals that are going to be the poll watchers, who can be in the polls and basically to observe.  They can’t challenge any voter.  They can simply talk to the poll workers in most states if they think there’s an issue.  In terms of outside the polls, you know we do have laws in every state that has what’s called a campaign free bubble or a campaign-free zone where you can’t be inside the campaign into that you know typically 100 or 200-foot radius surrounding the polling site.  But you know you did see a court for example strike down Michigan secretary of state’s directive that says you can’t have guns in that campaign-free area and struck that down as a constitutional violation.  You know what’s going to happen on November 3rd obviously, it’s very difficult to say but in terms of, you know, just people showing up to be poll watchers that’s not allowed.

J. Craig Williams:  What happens?  What are voters supposed to do if there are armed people outside a polling place preventing them from voting because they say they’re going to vote one way or another.

Joshua a. Douglas:  Well, obviously at that point, you need to call the local officials with law enforcement officials, those individuals simply can’t be there.

J. Craig Williams:  There’s also been a lot of noise this election season about voter fraud with mail-in ballots and people voting for dead people and people voting for twice in elections.  Is that a serious charge?

Joshua a. Douglas:  There’s a lot of noise about it, but there’s no evidence of it.  And this is something that we’ve been dealing with in election after election in recent years with all these wild claims of voter fraud and it simply doesn’t exist or at least it exists at a very, very, very low level.  And when it happens, it’s caught.  You know people point to the North Carolina congressional election in 2018 where a republican operative basically went around to apartment complexes and asked people for their absentee ballots for then him to fill out essentially and that was caught because the local county elections board saw the vote totals coming in and just looked — and something looked off it just didn’t look right.

In terms of the increase in mail and balloting, we have ballot trace where individuals can go and trace where their ballot is in the system, when it’s been sent out to them, when after they’ve returned it, when it’s been received and processed.  We also have signature matching where the election officials before counting your about will check the signatures that they have on file for you to make sure that they match.  So you know, there’s a lot of worry or bluster out there about voter fraud but not a lot of evidence that it actually exists.  You know, as I like to say it’s kind of like the monster under the bed to my kids.  I mean you know there’s no monster under the bed and every time I look, I still even have as hard as I look for it I’m not going to find the monster under the bed.  You know, except for maybe there’s going to be a very occasional situation where you know there might be the cat under the bed who comes out and scares me, right, every once in a while, very rarely.  And so you know, we could do things like keeping a night light on to deter the possibility that might happen even though we know that the likelihood is extremely low.

J. Craig Williams:  Well, there’s also been some intimidating emails to various voters, I think in Florida and other places from now we’ve discovered Iran and Russia.  Do you think those will have much of an effect?

Joshua a. Douglas:  Well, I mean I think foreign interference is definitely something we need to think about and worry about because we saw it in 2016 as well.

(00:15:00)

But importantly, the foreign interference we saw was not of the votes totals or the voting machines, it was really a hacking of the campaign and it was, you know, false social media posts that changed the tenor of the campaign and so this example of these emails that purportedly were from the white supremacist group the proud boys that went to voters but actually were sent by Russia and Iran are a good example of that and example of what we need to be concerned about in terms of the last few days of the campaign and the disinformation and misinformation that might spread.

I feel very confident that the election system itself it can’t be hacked again because we have a decentralized system because we’re being vigilant about that because we have local election officials on the ground who are really dedicated to their work and do a really great job under impossible times and not enough resources but whether you know something happens over the next several days in terms of the campaign itself that could change the discourse.  We need to be really vigilant about what we’re sharing on social media, what we’re believing and looking for good sourcing.

J. Craig Williams:  Well, thank you.  Well, before we move on to our next segment, we’re going to take a quick break to hear a message from our sponsors.  We’ll be right back.

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J. Craig Williams:  And welcome back to Lawyer 2 Lawyer.  I’m Craig Williams and with us today is Professor Josh A. Douglas from the University of Kentucky, J. David Rosenberg College of Law.  We’ve been spotlighting the upcoming election just days away now and we’ve been talking about foreign interference.  Josh, in the beginning we may have some domestic problems as well.  In the beginning of the conversation, you talked about the postal services role were now past the recommended deadline to put your ballot in the mail it’s either got to be delivered by hand or voted in person.  But what about the postal service’s role in slowing down the mail and the republican moves to basically disassemble the machinery?

Joshua a. Douglas:  Yeah, this is really concerning because a lot of election officials or Partisan, I shouldn’t say election officials that should I say, a lot of partisan operatives are undermining people’s faith in the postal service at the same time they’re arguing for a receipt deadline of election day itself.  So they’re basically making people feel like they can’t trust the postal service.  They have instituted ways to make it the mail slow down so the that ballots and other mail won’t arrive as quickly as otherwise and also not extending the deadline for ballots to receive.  Unfortunately, I think there’s some people who simply don’t want you to vote.  So the best advice right now is to drop off your ballot if you’re able to do so if you have a mail-in ballot that you have not yet sent in.  You know it’s a multi-pronged attack on our ability to participate in this election.  You know we’re seeing record turnout which is great but that shouldn’t mask the voter suppression tactics and I would put this nonsense with, you know, both the reality of slowing down the mail through the administration as well as the fears that are putting in people’s minds compared or alongside these about receipt deadlines as a really concerning episode of what looks to amount to a tactic of voter suppression.

J. Craig Williams:  So, Josh what about some of the Supreme Court cases and what’s with this all last-minute approach to these election issues?  Why are we seeing this flurry of activity right days before the election?  We’ve known this is coming.  We’ve got the SCOTUS case blocking curbside voting in Alabama, there’s been the request about the absentee ballot deadline in Wisconsin, I believe also in Pennsylvania.  Why the last-minute stuff, why not handle these six months or a year ago?

Joshua a. Douglas:  Well, I mean part of it is in response to the pandemic, right, and the desire to try to make it easier for people to participate in the unique circumstances that we’re in.

(00:20:03)

And you know, these cases take some time to go through the lower courts. Obviously there’s evidence gathering, there’s the district court disposition, including all the briefing and hearings and whatnot and then going through the Circuity Court system if you’re in federal court. So in part, I think it’s just the nature of litigation and the nature of trying to figure out the best way to do this during a pandemic, especially as we’re seeing a new surge in cases all around the country. And in part, I think it’s because these issues are just so heated and litigious that each side is trying to get as much advantage as it can. You know it’s not concerning to me so much that there’s been last-minute decisions. To me, it’s really that the merits of those decisions or the analysis that the courts have been using that I think is really concerning for our understanding of the constitutional right to vote.

J. Craig Williams: Are we headed to another Bush versus Gore?

Joshua A. Douglas: A lot of things have to go wrong before that were to occur and the first would be that the election would be super close in one or a couple of battleground states where you’re within what we call the margin of litigation, that is you know the vote totals are so close that litigation can make a difference. You know, recalling Bush v. Gore, the one state it came down to was Florida and that was 537 votes out of millions cast. So you kind of need a perfect storm.

And then the second thing you’d need is, if we were to be in that situation, litigation to proceed and you know the US Supreme Court does not require to take a particular case, an election case. There’s no original jurisdiction to the Supreme Court for an election dispute. This would go either through the normal federal court system or it would go through the state court system, and in fact every state has a procedure set up for how to resolve a dispute about the presidential electors and then up to the state’s highest court. And either way, the US Supreme Court would have to grant cert, would have to decide that it does want to hear a dispute from a lower court. And I suspect that at least Chief Justice Roberts and probably some of the other justices don’t want anything to do with this and would like to stay out of it as much as possible. That said, it’s not implausible or impossible situation where you get a ruling out of the Pennsylvania Supreme Court which leans Democratic that the Pennsylvania Republicans appeal and you’ve got either 6-3 or 5-4 sympathetic conservative majority on the US Supreme Court now with Justice Barrett. Now the US Supreme Court tied 4-4 from an appeal from the Pennsylvania Supreme Court just earlier last week and now we have new Justice Barrett and so it’s an open question as of this moment right now whether she’ll even hear that case and how she’ll rule if she does decide to hear it.

J. Craig Williams: There’s also been some commentary that she should recuse herself?

Joshua A. Douglas: Yeah and you know, I think in terms of a legal matter. You know if this was a year ago and when she was a new justice a year ago and then there was a last minute election case, I don’t think anyone would be talking about her needing to recuse. It’s really the unprecedented nature of putting her on the court eight days before the election that’s raising a lot of people’s alarms. And whether she has to recuse or should recuse, I think is a difficult question. If I were in her position, I wouldn’t necessarily want my first vote on the court to be one that essentially decides the election, especially if it’s in favor of the president who put me on the court because I think that starts your tenure on the court off on the wrong foot. But obviously it’s going to be up to her and what she thinks is right in terms of what the law requires and what she thinks her role should be as a new Supreme Court Justice.

J. Craig Williams: Well let’s talk about the voting election process itself, November 3rd comes and goes. At the end of the day, usually the talking heads and the pundits on TV are going to project who the winner is. Would you think that’s going to happen this year?

Joshua A. Douglas: It’s hard to know honestly. I mean I think in part, it relies on what the counts look like from the states that are able to process their ballots early and so therefore have early-ish results on the evening of November 3rd. For example, Florida can process its mail-in ballots, and I say process, I mean, open them, check signatures, get ready to tabulate and Florida is allowed to do that early. So I think the results could come back from Florida if they are strong one way or the other relatively early — when I say relatively early, I mean some point in the evening or early morning of November 3rd or November 4th. And if so if it’s a blowout in Florida, for say Biden, then I think that would give us some good information about the trend lines, not only because Florida is a big prize, but because it would suggest something about how some other states might go as well.

(00:25:00)

But if Florida is very close, for example, then I think we may be in for several days because we may have to wait for Michigan, Wisconsin and Pennsylvania to process their mail-in ballots and in those three states, the election officials are not allowed to start the processing until either November 2nd or November 3rd itself. So that means it’s a huge backlog of ballots to go through and to get ready to tabulate and I think the Michigan Secretary of State said that she expects to have results by Friday after November 3rd. So the real question is, “Are we waiting on a few key states to figure out who’s got enough electoral college votes or is it lopsided enough that those states don’t matter or we have a really good sense from those states?” I think it’s really hard to predict what we’re going to look like on November 3rd, but I would watch Florida and I’d watch North Carolina as early indicators of where we might be.

J. Craig Williams: We’ve talked throughout the program about all the efforts that have been made to limit people from voting to invalidate ballots and so forth, and all the efforts that have been taken beyond the ballot box itself. Do you foresee any kind of Voter Rights Act going forward as time goes on? Are we going to get some kind of federal mandate about what’s required vote, what’s not required? Give us some uniformity instead of the patchwork that we currently have.

Joshua A. Douglas: Well I mean, so we do have a little bit of uniformity already, right? With a couple different federal laws like the Voting Rights Act of 1965 which prohibits discrimination on the basis of race and voting and a handful of other things, prohibits illiteracy test, et cetera. And the question is, how robustly will the courts enforce for example Section 2 of the Voting Rights Act. The Supreme Court gutted a big portion of that law in the Shelby County decision in 2013. But Section 2 which prohibits discrimination on the basis of race and applies nationwide is still a valid law. And the question is, how much are the courts going to enforce that?

There’s also the National Voter Registration Act of 1993, also referred to as Motor Voter which is the law that requires for example DMV offices to offer voter registration. There are a couple laws involving military and overseas voters that require things like when states must mail out absentee ballots overseas. So there are some federal laws, but I do think that if the Democrats in particular take over both the House and the Senate and the presidency, or keep the House and take over the Senate and the presidency — they’ve said that one of their number one priorities is going to be voting reform and they already enacted or they already passed — the Democrats introduced HR 1 in 2019 which was a suite of election and campaign finance and ethics reforms that the Republicans refused to take up.

So I think they already have a model for a law that would implement some of the best practices that we see in states, already things like automatic voter registration, easing of mail-in balloting and re-enfranchising returning citizens. These are individuals with felony convictions who have completed their sentences, campaign finance and ethics reforms. So I do suspect that Congress would do that if it’s in fully democratic control, but again it’s an open question as to whether the courts would uphold that kind of an act.

J. Craig Williams: Lots to look out for. Well Josh, looks like we just about reached the end of our program. So I’d like to take this opportunity to invite to share your final thoughts as well as your contact information and let us know where we can get you book?

Joshua A. Douglas: Thanks. So final thoughts, vote of course if you haven’t already and vote early if you can and don’t assume that we’re going to have necessarily immediate results. And if we’re waiting, it’s okay. The election is valid after every ballot is counted not when media pundits want you or election officials or politicians want you to say the election is over. It’s only over once all the votes are cast.

I’ll be spending a lot of time on Twitter. I’m @JoshuaADouglas commenting on various election law issues and as you mentioned, my book, Vote for US: How to Take Back Our Elections and Change the Future of Voting, which tries to provide some good news from states and localities about how we’re actually making it easier to vote in more convenient and more including through various reforms that do various democracy champions working on this in local areas. You can find it at where all books are sold.

J. Craig Williams: Great. Thank you very much.

Joshua A. Douglas: Thanks for having me.

J. Craig Williams: And if our listeners, if you like what you’ve heard today, please rate us on Apple Podcast, your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m 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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