John Cusick serves as a Litigation Fellow at the NAACP Legal Defense and Educational Fund, Inc. (LDF), where he...
In this special 2020 election edition of @theBar, host Jonathan Amarilio and co-host Chastidy Burns are joined by John Cusick, Litigation Fellow at the NAACP Legal Defense and Educational Fund, Inc. (LDF), for a discussion about the current state of voting rights, in the courts and at the polls, since the U.S. Supreme Court’s decision in Shelby County v. Holder eliminated the full protections of the Voting Rights Act of 1965.
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The Voting Rights Edition
October 23, 2020
Jon Amarilio: Hello, everyone. Welcome to CBA’s @theBar, a podcast where we have unscripted conversations with our guests about legal news topics, stories and whatever else strikes our fancy. I’m your host, Jon Amarilio of Taft Law and joining me as co-host today is my friend, Chastidy Burns of the Cook County Public Defender’s office and of course, second vice chair of the CBA’s own young lawyers section. Hey Chastidy.
Chastidy Burns: Hey, everybody. Hey, Jon.
Jon Amarilio: So, Chastidy, it’s October 2020, we have a presidential election coming up in about two weeks. And unless someone has been I think living under a pebble, beneath a rock, underneath a boulder, buried in a very deep mountain cave, they’re well aware of that fact and they have almost certainly made up their mind as to how they’ll cast their ballot if they haven’t done so already. And it’s the casting of the ballot itself rather than the choices made in it that we’re here to talk about today. This is an unprecedented election for many reasons. But when we’re talking about participation in the electoral process itself, this election is I think especially unique because we’re holding it in the middle of a global pandemic. Will people vote? How will they vote? When will they vote? Will they be allowed to vote? Will they be intimidated if they try to vote? Will their votes be counted? All of these questions, substantive procedural and logistical will arguably matter more in this election than in any election in living memory. Here to speak with us about all that and more is John Cusick. John is a litigation fellow at the NAACP Legal Defense and Educational Fund where he primarily works on voting rights cases. Among other cases he’s working on, John is part of the legal team challenging Florida’s attempt to undermine its own ballot initiative, restoring the right to vote for 1.4 million felons. He represents students at a historically black university in Texas who’ve been denied access to on-campus early voting. He just finished up a trial and despite that he’s taking the time to be with us here today, John, thank you for joining us. Welcome to @theBar.
John Cusick: Thank you so much, Jon and Chastidy. So, so excited to be here and looking forward to talking about voting rights about now, just two weeks from election day.
Jon Amarilio: Thanks, John. So, every day, John, the news seems to be flooded with headlines about the election and how it’s being conducted. But before we get into that, I thought it would be useful if we zoom out and rewind to 2013 when the U.S. Supreme Court handed down its decision in Shelby County v. Holder because that decision as I understand it explains a lot about the problems and controversies that we’re seeing play out in this election. So, let’s start there. Can you tell us what was Shelby about, what did the Supreme Court decide?
John Cusick: Sure. And as a brief background as you mentioned, I am at the NAACP Legal Defense Fund and part of LDF’s core mission is to protect voting rights especially for black voters. And we were one of the counsels who argued the Shelby County decision back in 2013. And that decision has made that mission to protect voting rights extremely difficult post-2013. Shelby County was a case that reviewed the constitutionality of the coverage formula in the Voting Rights Act and I’ll talk a little bit about what that meant and how it’s transpired. And So, since 1965 under Section 5 of the Voting Rights Act, certain jurisdictions whether that be states, counties, cities or towns with a history of racial discrimination in voting were obligated to submit all proposed voting changes either to the Department of Justice or Federal Court in Washington DC for pre-approval. This was what you might have heard of as the pre-clearance requirement. And the ingenious part of that component was it halted discriminatory voting changes before they were implemented. And so, Section 5 placed the burden of proof, time and energy under covered jurisdictions which also required them to engage in community outreach and correspondence with members. And so, for nearly 50 years, Section 5’s pre-clearance requirement served as one of our democracies discriminatory checkpoints protecting black, Latinx, Asian, Native American and Alaskan native voters from various forms of racial discrimination. And for which jurisdictions were covered was under Section 4b of the Voting Rights Act which was essentially the formula that congress had determined for which jurisdictions would be covered. And so, the Shelby County decision reviewed the constitutionality of that Section 4b coverage formula. And in the case what Justice Scalia referred to as a racial entitlement for the Voting Rights Act, Chief Justice John Roberts writing for the majority essentially wrote that racial discrimination is a thing of the past and that the formula is essentially outdated and unresponsive to current conditions in voting which essentially really gutted the Section 5 requirement because there were no longer any formula for states to be required under that.
If you can believe it the Voting Rights Act passed in 2006 with a 96 to 0 vote in the senate for reauthorization. And so, just a little over seven years later, you have the Supreme Court coming in essentially discounting all of that thousands of pages of evidence of submissions that were created and between just 2010 to 2013, the U.S. Department of Justice processed over 44,000 Section 5 submissions. I think it’s relevant to uplift Justice Ginsburg dissent in the Shelby County case where she said throwing out the pre-clearance requirement when it has worked and is continuing to work to stop discriminatory changes, is like throwing away your umbrella in a rainstorm because you’re not getting wet.
Jon Amarilio: Right.
John Cusick: And so, this crown jewel as you can see was so important not only as a deterrent effect but really placed the onus on jurisdictions to show that any changes would not have a discriminatory result or lessen the impact of racial minorities to elect candidates. And so, what you could imagine is after the Shelby County decision, the results were very predictable. You had as just one example strict photo ID laws passed right away within hours of the Shelby County decision the State of Texas announced that it would enact a photo ID law that it had been trying to pass and had been blocked for years. Eventually part of that photo ID law after three to four years of litigation, part of it was struck down for being a former racial discrimination, but you also had similar states like North Carolina, Alabama, enact these laws and these opportunities to really restrict who has access through voting ID laws. You also had a whole sloth of poll closures. So, previously, if a jurisdiction was going to move a polling location, it had to get pre-clearance requirement and cover jurisdictions and the leadership conference analyzed data sets over the past years from 2014 to 2018. And in jurisdictions that were previously covered, more than 1,600 fewer polling locations. And so, that often times happened without notice or community input without the pre-clearance requirement and these types of changes disproportionately impacted black communities especially in places where you had no public transportation or very limited access to private and public transportation.
And so, I think it’s important, Jon, as you mentioned in the beginning, is that the 2016 election was really the first election without the full protections of the Voting Rights Act. Sherrilyn Ifill, our president and director council often discusses how one of the issues with the 2016 diagnosis is that we really misdiagnosed some of the reasons for low turnout and participation. I think it’s assumed sometimes that people might have not been motivated or not interested. There’s also been discussion about people’s interest in voting in the 2016 election. But part of that discussion has to be central of the way that the Voting Rights Act was not in effect for more than three years and what those barriers had on for people when they were voting. And so, you know, I’ll stop here to see if you have any follow-up. LDF has published a report called democracy diminished where we document some of the ways these covered jurisdictions have enacted. But what we’re seeing now especially in this election which would be the second election without the full protections, just the exact type of harm that the Voting Rights Act was intended to eliminate and also Section 5 was intended to really prohibit and place the onus on jurisdictions. And so, you’re seeing these laws, poll closures, cuts to early voting, all of these different types of barriers to the ballot box that would have otherwise forced some type of pre-clearance requirement.
Chastidy Burns: So, John, you mentioned that Section 4b was found to be unconstitutional by the Shelby decision right but not Section 5? So, do we still have an opening then to come up with a new formula that would replace Section 4b in order to be able to bring back the pre-clearance requirement?
John Cusick: That’s exactly right. And so, the new formula essentially would be trying to have it comply with what the Supreme Court found in Shelby County. And so, that determination only ultimately rests with congress for enacting a new formula. And so, you initially had HR 4, House Resolution 4, which has now been renamed for the John R. Lewis Voting Rights Act. And so, this is a critical voting rights protection in the wake of the Shelby County decision. It essentially proposes a new way to have the formula coverage proposed and as such, it would have a new pre-clearance formula for states with patterns of discrimination. It also would eliminate some of the last-minute changes that adversely affect voters. It would also have one of the issues with the Shelby County decision and the pre-clearance requirement is there was a federal observer program. And so, in previously covered jurisdictions, you would actually have Department of Justice attorneys and other observers from the Department of Justice in certain jurisdictions on election day documenting those requirements, taking note, working with officials.
And so, these are just some of the ways that HR4 is one of the solutions for that formula coverage to comply with the constitution. Unfortunately, although it has passed, it has not gotten a vote in the senate yet. But hopefully, it will be continued to be debated and discussed and it’s just such a critical response to ensure that it complies not only with the constitution, but with the heart of the Voting Rights Act was meant to be.
Jon Amarilio: I just don’t know if, you know, the DOJ is going to really have the resources to commit to that kind of thing again, John, given how much time they’re probably spending investigating Hunter Biden.
Chastidy Burns: Good point.
Jon Amarilio: But you know, if we zoom out a little bit, something that you just said really struck me which is that just before Shelby County was decided, the Voting Rights Act was renewed 96 to 0 in the senate. And now, I assume if the GOP maintains control of the senate, we could never really hope for an up or down on the Lewis Voting Rights Act, that shift just politically. I mean, we’re not here to talk about the politics, we’re here to talk about the law. But that shift is really remarkable to me. 96 to 0 to not even getting a vote within just a handful of years.
John Cusick: Yeah. And I think part of that is that for some time there has been a recognition, not only from the judiciary, but also from senators that racial discrimination exists. You know, it has continued despite 1965, it has continued despite federal protections. And the culmination of that was again for the reauthorization to happen, you went state by state, you had congressional hearings and you had a full record of all these types of documentation and concerns. And as you mentioned just in in 2006 with that reauthorization, since then, I think you’ve seen a shift where the narrative has really tried to detach the historical connection to that. And so, you see sanitized versions of voter integrity instead of voter disenfranchisement. You also are seeing on the federal bench judicial nominees who are unwilling to affirm the legitimacy of Brown V. Board of Education. I think you even in the recent hearings with Judge Barrett for her confirmation process, an unwillingness to commit whether racial discrimination in the voting context is an issue and ongoing. And so, I think there’s not only into the sense of that you’ve seen an electoral shift but you’ve also seen a shift in the judiciary where the types of voting discrimination that they are willing to recognize and to state has really changed and that really has happened in the last four years through the judiciary process and the nomination process where it’s almost become kind of a right of passage and unwillingness to speak and to discuss racial discrimination, whether it be in the criminal justice system or the voting rights context.
And so, I think, you know, one last point to that too is that I think the voting rights discussion cannot be detached from what we’re seeing throughout the country, we’re seeing not only more people registering to vote but we’re seeing more black candidates run for office, more candidates of color registering. And so, I don’t think it’s any coincidence either that that also is serving as a catalyst to restrict access to the ballot box because those are generally seen as threats to power when you’re seeing shifting demographics not only in those who are voting but those who are running for office. And so, I think that is all part of this discussion about the unwillingness not only for the senate to hold a vote on the Voting Rights Advancement Act but also the judiciary and that process for an unwillingness for people to do.
Jon Amarilio: And we could probably have an entire episode on how meaningless Supreme Court confirmation hearings have become. But let’s dig into the weeds a little bit about what you were just talking about, the kinds of voter suppression efforts that we’ve seen in the wake of Shelby County. There’s a number of them, right? There’s restrictions to early voting, attacks on mail and voting, voter ID laws which you mentioned, registration restrictions, voter purges, gerrymandering, all these kind of things. If you had to pick one place to start, the biggest threat that you see to access to the ballot, what would you say that is?
John Cusick: That’s a tough one. I’ll take it in two bites. I think for this upcoming election, I think one of the main ones has been again just those poll cuts and poll closures. It’s a bit difficult in this context because we also are in the midst of a global pandemic right now. And so, resources are a legitimate concern for jurisdictions especially those that had budgeted, you know, pre-march before all of that had occurred. But as you’re seeing, there’s a lot of skepticism for folks that want to rely on mail-in voting or vote by mail or absentee ballots through the mail. And so, I think access to the ballot box is so tied to early voting and so I
think a combination of poll closures and cuts to early voting access are probably the biggest threats because we’re seeing now such long lines and people going out I think some of the reports from the other day up to eight hours, people driving 300 miles.
There was a woman who was living with her son in Illinois and drove 300 miles to Michigan to vote in-person and during early voting. And so, I really think that combination is one of the greatest threats. And looking forward which we can talk about later, I think redistricting is going to be a huge issue. This will be again one of the first times where the redistricting process won’t be subject to pre-clearance requirements and so, who is drawing those lines, there’s certainly issues with the census data. You could have a whole segment on that on what’s happened with that deadline. And so, I really think for this election cycle, safe and secure early voting access whether that be with polling locations or early voting access I think is really one of the biggest threats, all of which would have been covered in in some of those jurisdictions under the Section 5.
Chastidy Burns: Yeah, John, you mentioned the mail-in ballots and early voting lines and whatnot. And to me, when I see these really long early voting lines especially when I went myself, I find that to be inspiring, whereas we’re also seeing a lot of coverage of mail-in ballots being dumped into rivers and you know, set on fire, sent to the wrong places. How big of a deal do you think this hysteria over potential issues with mail-in ballots will be as far as access to voting?
John Cusick: Yeah. And I think, you know, LDF was one of the organizations along with public citizen and you know, several states, attorney generals and other organizations that challenged — filed against the U.S. postal service for a change in July, when they pivoted with a memo that put restrictions on the timing and nature of letter carriers. And so, there is a big legitimate concern that changes — that were taken back in July, that just general overwhelming of the postal system that people have legitimate concerns about if they send their vote in, will it arrive on time. And I think those are legitimate. We’ve seen now eight courts including — in our case, file against in favor of plaintiffs who are challenging some of those changes. On the other end of it, it’s unfortunate that you see several elected officials really attack absentee ballots and voting by mail as some type of illegitimate process despite the fact that they themselves will actually rely on those types of methods. You know, I think one of the things that is missing is you already have five states prior to 2020 that relied entirely on vote-by-mail where everybody got a ballot and they voted by mail. So, they’re clear —
Jon Amarilio: Without any problems, right?
John Cusick: Correct, exactly. I forget the secretary of state, it might have been Washington who wrote an op-ed article explaining and documenting these. But in addition to those and obviously it varies from state by state, but you have so many built-in protections about identity verification, barcodes with mailing, ballot tracking through the U.S. postal service, you have drop boxes. So, the types of, you know, widespread or reoccurring issues of voter fraud again are selectively cherry-picked. Again, you know, so much of this has really been stirred up and we’ve seen it historically as a way to de-legitimize, not only the process but to also scare people. And so, you know, that is really being seized upon as a way to deter people from voting, but you know, from the evidence from what elected officials who are running these elections and do so every year, they’re saying we have safe and secure elections and you should rely on any means possible to do so. And Chastidy, I would also just echo to that long lines, too, is also a positive in the sense that some places are complying with social distancing. And so, that — you know, just with long lines too, it’s — not always a bad thing.
Chastidy Burns: I felt very safe when I went.
Jon Amarilio: That is one of the — John, one of the last points you hit there I thought was really remarkable which is you hear — especially administration officials calling mail-in voting into doubt and, you know, the man at the top especially saying it’ll all be a big fraud. But what you hear even from republican attorneys general and at the state level I should say and secretaries of state is that this is a proven and safe system. And that’s what they’re saying at the state level, again, even when they’re of the president’s own party. And that I think that disconnect between the people who are actually administering the system and one of the candidates is certainly interesting and probably telling.
John Cusick: And it’s — you know, it’s another point too that even the research — you know, obviously, this is a voting rights issue. It does — you know, people are not being asked why they’re voting for access but all of the research on this too doesn’t suggest that one party is favored over another. If you are in a rural area and don’t have access to an early voting location, mail-in ballot is so secure and so it’s why you saw interestingly during the primaries in places like Georgia and other places, you actually saw certain administrations actively sending out ballots for people to do and to do those. And so, you know, there could be long discussions about the, you know, also the subsequent not only election fraud but the voter fraud too that has been the boogeyman that has been used by election officials.
But you’re totally right, there’s such a disconnect. And again, that’s why it’s so important for people who are listening and not only in Illinois, and other states, but to really rely not only on your own secretary of states and election officials, but people you trust and people who are actually conducting these elections because they know the best way to do so.
Jon Amarilio: John, I was under the impression that the postmaster general had recently bagged off his policy changes and said that ballots will be given priority for the upcoming election, is that right?
John Cusick: That’s from our understanding too. The postmaster general recently settled a lawsuit, I want to say maybe in the last four or five days with the State of Montana. And so, not only a complete reversal of that pivot memo that we briefly discussed, but also to give priority. But again, the unfortunate part is the damage has already been done. It’s very difficult in this process despite the assurances that might be made. And so, that’s why you see not only from the U.S. Post Office initially, but also other people saying if you’re going to submit your absentee ballot or if you’re in a place that has vote-by-mail, to do it as quickly as possible so you can ensure that it is there or alternatively, we’re also seeing, you know, communities that we serve doing, you know, drop-off days where, you know, they might schedule and organize for people who are voting by absentee to all go to their supervisors of election office and hand it in-person as opposed to mail.
Chastidy Burns: Yeah, John, we’re also in addition to seeing obviously, a lot of people pushing high voter turnout, we’re seeing a big push for poll watchers, even the Chicago Bar Association has a new program where attorneys can volunteer to be out in the field assisting on election day. So, can you talk a little bit about voter intimidation and the types of things that these volunteers are being put out there to protect? What are you seeing?
John Cusick: Sure. And, you know, this obviously will vary from jurisdiction to jurisdiction and some of the even terms of poll watcher versus poll observer will have different connotations for example in South Carolina, a poll observer can be any member of the public whereas a poll watcher is on behalf of an organization. And so, you know, I’m sure in places like Illinois and other areas, people are understanding those dynamics. But in terms of voter intimidation, it is particularly troubling this election cycle for a number of reasons. One important context is that this will be one of the first presidential election in 35 years where the consent decree between the RNC and the DNC that had essentially limited some of the RNC’s ballot security initiatives which the consent decree under found that there were intimidation tactics especially against racial minorities and other issues that that consent decree has been lifted. And so, it really factors into two ways. I think, first, you have government actors. And so, the most visible form from government actors may be law enforcement. We are seeing and previously have seen law enforcement patrolling polling sites or inside of polling locations. I’m not sure if either of you saw yesterday but there was a police officer in the City of Miami who was inside a polling location during duty who had a Trump 2020 mask — face mask on. And so, people who were going to vote saw law enforcement and they saw somebody with a trump mask on.
Chastidy Burns: Well, I didn’t think you were going to say that because just having police presence, especially in low-income or minority, predominantly minority neighborhoods, just their presence alone can be a deterrent especially with the tense, you know, feelings we have between community and law enforcement right now. But to be wearing, you know, particularly masks is terrible.
John Cusick: And especially the historical context, you have black voters who not so long ago distance, you know, law enforcement would be a place where they were using violence to deter people from voter registration drives and so exactly to that point, we’ve also seen in previous elections where you have, you know, three or four law enforcement cars parked outside of a polling location where they’re unprompted, especially with armed law enforcement too, again, just gets back to that intimidation tactic. And the unfortunate thing is you’ve heard the president pledge at times that he’s going to to send sheriffs and law enforcement in on election day. And this is particularly troublesome not only for a host of the reasons you mentioned about the intimidation tactics, but also the conflict of interest. You have sheriffs and law enforcement who have endorsed certain candidates. You have local elections where the same sheriffs and law enforcement might be running for office. And so, that really is one of the big concerns about government actors. And then to the second point, we’re seeing a lot of private actors, we are seeing supporters driving by at locations, blaring music or signs, you know, there are certainly concerns when people are invoking the confederate flag and they’re waving that outside of polling locations, what that as mean. And you again unfortunately to the point we discussed earlier also however the president asked people to go and watch the polls very carefully and so there is this emboldened sense that people despite the laws and despite what you need to do prior to becoming a poll observer or a poll watcher in the jurisdiction have to go through some process, either if it’s designated by the party or the candidate.
And so, this is really troublesome and we’re really seeing some of it begin to manifest now despite the fact that federal law prohibits discrimination and prohibition at the polls, not everybody can show up and simply watch. And so, what we’re doing in addition to monitoring is also sending letters to not only jurisdictions to make them aware of incidents we’ve found, but also to ensure that secretaries of states or attorney generals and states are aware that they have an obligation to enforce when it is raised and it is escalated about these intimidation tactics.
Jon Amarilio: And that is probably an inopportune but nonetheless necessary place for us to take a break. We’ll be right back.
Chastidy Burns: I’m Chastidy Burns, second vice chair of the CBA young lawyers section and a co-founder of our racial justice coalition. I want to remind you that this November, your vote matters. As our country faces some of the most challenging times in history, we want to encourage you to let your voice be heard as we choose the leaders who will shape the trajectory of our future. You can vote early in-person, you can vote by mail or you can vote in person on election day. Just be sure that you have a plan in place to make your vote count. For more information about voting and registration requirements, visit the Illinois State Board of Elections website or call the Illinois ACLU at (866) our-vote.
Jon Amarilio: Do you have a legal matter that you need resolve but want to avoid the expense of going to court, the litigation process can be stressful and costly but there’s another solution, mediation. The Chicago Bar Association Mediation Service enables you to choose a qualified attorney mediator to help resolve your business or legal dispute efficiently and for a reasonable fee. All participating attorneys have been fully vetted by the Chicago Bar Association. They have undergone an extensive training process to ensure that they provide the highest quality service and can guide you to an amicable resolution of your dispute. Call (312) 554-2040 or email [email protected] to get started with Chicago Bar Association Mediation Service today.
Jon Amarilio: And we’re back, John, before the break, we’re talking about voter intimidation at the polls. And for our audience, could you explain when they go there, if they’re not voting by mail, what is not okay? What is and is not acceptable at the polls? What should they be looking for in terms of red flags for intimidation and just as importantly, what can they do about it if they see something, if they see voter intimidation happening?
John Cusick: Sure. And so, some of this will obviously vary from state to state but one of the first things you can do is generally in most states, there’s a barrier for people to be outside of the polling location whether you’re affiliated with a campaign or you might be an observer or watcher. And so, there are certainly examples where people will cross that line or try to engage voters or try to, you know, for lack of a better word, intimidate voters within those restricted lines. And so, that’s one issue that should be very aware of. One of the tactics we’ve seen and again, this is historically, is you might have people questioning citizenship, criminal records, other qualifications for somebody’s voter issues, certainly in — I know Chastidy mentioned this at the at the beginning but for people with felony convictions, especially in a state like Florida where there’s been such litigation and ballot initiatives around qualifications of who can vote with a criminal conviction, you certainly might see examples where people unidentified might be asking do you have a criminal conviction or other types of really intimidating questions about citizenship and criminal records.
Jon Amarilio: So, John, sorry to interrupt you but are you saying people who are like setting up false check points before you actually get into the polling place?
John Cusick: It might not even be like an official, certainly there could be examples of that but it also might just be somebody kind of roaming around just asking people the question to begin with as a way to intimidate. You know, certainly somebody falsely presenting themselves as an election official and so, again, I think in most areas and again, election workers should have some type of identifiable marking on them whether it’s a name tag or who they are. And so, to the extent you see somebody representing any troubling information or they’re speaking to you, you might just want to — you should confirm that there’s somebody who works there, who is somebody that’s part of the polling locations. You know, another thing that we’ve seen is people spreading false information about the requirements, so it might be uh literature, they might be that might have misinformation or — it’s so hard to label it now because there’s so many ways but just inaccurate information about voter qualification, so it might say for example you need XID when that might not be the case. And so, there are certainly those types of intimidation tactics. But then two, and this gets back to the point Chastidy raised, there are other ways that are not always as explicit.
And so, you could see for example, a line of cars lined up in a way that seems pretty intimidating on the backside or you might saw law enforcement. And so, it’s really context-specific, but if you do see any of those issues, certainly, there’s an election protection hotline. It’s 1866-OURVOTE that you could call. Certainly, if there are any independent poll observers who are part of a non-partisan organization, you should definitely reach out to those folks within your jurisdiction. There certainly, you could also reach out to US Department of Justice. Voting rights has a hotline for issues of voter intimidation and then two, if you have any relationships either with poll workers, your county clerk, election administrators, you should certainly escalate those issues and again, it’s unfortunate we have not — it’s rare to see those types of voter intimidation tactics but John, to your point, the election and the rhetoric around this cycle has been so different especially with the calls for private citizens to essentially go out and to do some of this observing that it’s really important people have all those facts and it’s always better to be on the safe side especially if you’re feeling uncomfortable or see other people feel uncomfortable during early voting or on election day.
Chastidy Burns: So, say that you make it past all of the crowds with their different flags and the cars lined up and the cops outside and you’re actually in the polling place, are you seeing issues involving equipment malfunction in the ballot places?
John Cusick: Yeah and so this has been an issue. I think probably you might remember in Georgia, I think it was in the primary in June that there were extremely long lines and they had recently switched fully — had switched election machines and equipment and so in the initial primary, they had run a pilot of that and unfortunately, it had really failed for all intents and purposes but they completely swapped out machines and so what you saw, and these are issues of just about preparedness, you saw issues with voltage, so you have new machines that require different voltages. You saw issues with those. People didn’t know how to properly work those machines and so we’ve seen malfunctions not only in Georgia but there have previously been issues in the last election cycle in South Carolina. So there are the issues just with the machines themselves. But then people are overwhelmed and so some of — as another example in GEORGIA, there’s a different process where you have to scan your ballot after writing it and so these new methods and new ways that might be unfamiliar to folks are another way that polling lines have really gotten longer.
And so I think for listeners who have not yet voted and think that their jurisdiction might have new machines, it might be helpful to talk to someone who’s used them before or just to kind of understand those issues. We’ve also seen some reporting online in Louisiana where people are being told that they only have three minutes to cast a ballot in a vote and I’m not entirely sure about the specific state law if that’s acceptable or not, but certainly there are reasons why especially with — you go look at a place like California where you have so much ballot initiatives on the docket that people should not feel pressured or rushed and so there are a lot of ways that this happens not only with the equipment, but how up-to-date and secure people are.
And then I think just the last point is we’re also, as you mentioned, in a global pandemic and so, people who have volunteered, it might be people switching out or new volunteers and so, training is just so key and so that’s really another issue we’ve seen where part of it I think we have this idea that voter suppression is having to have this explicit form where you’re intending to do something but there’s also these subtle ways that it manifests where if you don’t take the time to prepare, if you’re not training people and I think some of the machine malfunctions, some of it certainly is unintentional but some of it too is on the state actors in those jurisdictions for not taking steps prior to the election to really ensure the equipment was fully tested.
Jonathan Amarilio: John, talk to me about voter purging. Whenever I think of this issue, Ohio comes to mind, Georgia comes to mind I think in the lead-up to the last election, there’s something like 70% of the voters who were purged were black in the lead-up to that last election. I don’t specifically remember if this is accurate but I have the number 16 million in my mind of voters purged in the lead-up to the 2016 election.
I know advocates say that it’s necessary to account for people who have moved out of state, who have died, et cetera, but opponents say it mostly happens in jurisdictions with histories of racial discrimination and that this is just another example of the floodgates that were opened in the wake of Shelby County.
John Cusick: Yep and so, certainly there are legitimate reasons that are authorized. It’s under the National Voter Registration Act (NVRA) for legitimate reasons for removing someone, as you mentioned someone who might have moved out of state or passed away. But the really challenging part of this is the Supreme Court essentially gave states a green light to adopt extremely aggressive voter purge practices.
You might have heard the term use it or lose it, places like Ohio. I think it’s about eight or nine states now that have similar ones where someone might be initially flagged as possibly moving if they miss a federal election. Now, we can think of many reasons why someone might miss a midterm election or might decide not to cast a ballot and then so as a result, they’re oftentimes sent a postcard asking for verification and I don’t know if either of you have how often you checked your mail but I don’t know when I see postcards really look at them closely or if I even get them and so if you don’t respond to that postcard for verification and then again, if you don’t decide to vote in two next federal elections, your name is removed and so you’re essentially penalized for not casting a ballot for up to six years and again, not responding to that card.
John, exactly to your point, we’ve seen again jurisdictions with a history of racial discrimination really utilize this tactic in a way that’s discriminatory. We saw — man, the years are blurring a little bit but Texas recently, under the auspice of people who are undocumented talked about voter purge practices in Texas, which we found was faulty data. It was people who at the time and when they got their license were undocumented but since then, had received citizenship. You saw it again in Georgia in these practices where the data that’s being used and sometimes with common surnames or initial that might be missing off disproportionately impacting voters of color and so it’s to your point about what happened in Georgia, we saw in the 2016 elections you had hundreds of thousands of people that were removed from the polls through some of these really aggressive practices, relying on again, faulty data on not sufficient notice.
And so, in elections where you’re winning a state or even a local election that’s decided by 10 or 15 votes, it makes such a big difference and it’s another thing unfortunate where just because you voted in a past election, even in a primary, you sometimes might be marked as inactive or if you voted two years ago, you could also potentially lose that registration status and so, it’s so vital that you check your voter registration status. It’s an unfortunate consequence but a reality that’s become far too common for too many folks.
Chastidy Burns: Yeah and John, with this being such a contentious presidential election, I’m sure we’re all on high alert for all of these different voting tactics coming into play and different laws that change the procedures for voting. Can you talk a little bit about the Purcell principle that you mentioned earlier and how we can possibly use that to try to at least protect against politically-motivated election laws coming in?
John Cusick: Yeah and so, LDF along with many other organizations has filed a number of different litigation in several states about responses to COVID, there’s one example in South Carolina. South Carolina initially had absentee but the 18 categories for absentee voting did not include somebody who might fear COVID or might have some type of issue with the COVID pandemic. You also had a witness requirement, which would be very difficult in the midst of a global pandemic for contact. This is not unique. You saw other states like Alabama have a witness requirement and so LDF along with ACLU and other organizations challenged South Carolina state requirement for absentee voting and also the witness requirement.
South Carolina made a legislative fix in terms of the no excuse for this election to allow people who have a legitimate fear. But even though the lower court initially affirmed and joined the witness requirement, the Supreme Court recently reinstated that witness requirement and so, Chastidy, you mentioned the Purcell principle and not to get too wonky here, but this is part of the Supreme Court sometimes you might hear of the “shadow docket” where they’re essentially deciding these big voting cases without much written opinion, you might get a dissent or two, but they’re really impacting what’s going forward and essentially, the Purcell principle, what it was supposed to be is a factor that courts consider whether to accept changes to a state law near an election because they might, for example, be confusing.
Let’s say there is an election law two weeks away from voting or while voting is going on. It should be one of the many considerations for temporarily enjoining that law but what’s happened is courts have really looked to that especially the Supreme Court as a stand-alone ultimate decision factor where if it might cause confusion, we’re going to rely on Purcell and that’s going to be it and so, even with the supreme court case in South Carolina, these decisions oftentimes don’t have any written opinion especially if there is enough to enjoin it and so, Purcell’s been invoked but it’s not entirely clear what those lines mean and how they’re exactly enforced.
You would think that making voting easier during a global pandemic especially when it would make it easier for voters would not cause confusion. I think you and john might remember the pictures in April from Wisconsin that election where again, the lower courts decided to extend absentee ballots by a week because they understood that not doing so meant more people would be going to the polls. You would see longer lines and people braved those they unfortunately braved those. They unfortunately braved lines and did that.
But that was only after the Supreme Court decided to overturn that decision again and so it’s become an unfortunate reality where this Purcell — what has been dubbed as this Purcell principle has really become a barrier to voting. You would think that it would be used especially well in advance, that if it makes voting easier, it’s certainly in the public interest. It certainly aligns with constitutional and equitable principles but what we’ve seen is really this weaponization of it by people who are trying to restrict or to take back some of the gains of voting protections.
Chastidy Burns: Yeah it’s always shocking to see a law not have its intended effect, right?
John Cusick: Yeah and I mean and the most glaring example, if let’s say a jurisdiction four weeks before an election enacted a poll tax, certainly the public interest would be to strike that down. That’s what Purcell would be for, but as I mentioned, it’s been so inversed and used selectively unfortunately not only by the Supreme Court but by other courts too to really restrict especially in this COVID-19 pandemic cycle.
Jonathan Amarilio: John, I think most of our audience is comprised of lawyers and most people don’t get into the law because they don’t want to do good. They want to help society. Obviously, including in its most challenging times, which I think this ranks among, so what can lawyers do to help to enfranchise people and help protect the right to vote in this election?
John Cusick: Yep and I think I don’t know if I mentioned this earlier, but LDF has a prepared to vote initiative which essentially is monitoring the election and ensuring jurisdictions comply with some of their federal and state obligations and so, that might be for example, not only through LDF but other organizations where you could volunteer to serve as a poll watcher or observer, as a nonpartisan one. There’re also opportunities to conduct remote monitoring for people who might not feel so comfortable doing the in-person opportunities. Certainly, there are opportunities also for folks to get involved for people that might have registration questions or obligations and so I think one of the first steps from the law component is to really try to contact any organizations that are either working in your state that you know of or have a relationship to and just ask how can I volunteer. It might be, for example, answering phone calls on the day of election. There are certainly going to be a lot of people I think I mentioned earlier that election protection hotline, people are setting up those opportunities for early voting. Especially with limited resources, there’s not a whole lot of observing going on during in-person election protection as much as would be desired. And so, there are certainly opportunities for folks and lawyers to get involved in that way.
Certainly, if you’re at a firm and you have relationships with certain non-profits, it would be helpful to reach out and to talk in ways that there unfortunately will likely be election day litigation, not only on election day but what will likely be days and potentially weeks after election day and so I think those are some of the meaningful opportunities that lawyers can really utilize their skills not only for the legal research but also to really be out there and interacting with voters in a meaningful way.
Chastidy Burns: John, can we get your prediction as far as just how much litigation we’re looking at after election day or your projection?
John Cusick: I’m pretty sure I saw a statistic that for this election cycle, there’s been about 350 lawsuits so far, voting rights-related. It is unfortunate because it seems that there are a number of different ways that it’s going to happen. Certainly, you’re going to have issues continuing to come up about when ballots should be counted after election day. You’re also seeing certain states, I think Pennsylvania is one, talking about having some sort of commission that is going to look at the integrity of the elections that could essentially there was talk about if there are concerns that they find actually kind of using that commission as the way that gets voted. So there are likely going to be those in as many of the states as you could imagine.
Jonathan Amarilio: And Pennsylvania is predicted to be the tipping point state. So of all the states not to have this worked out, that just blows my mind. But I’m sorry, I interrupted, continue.
John Cusick: No, no, exactly. There’s certainly I think going to be issues to not only — individual voters are going to have issues and so you might have for example polling locations that we saw in 2018 didn’t open for the first two or three hours and so there are election day litigation where you’ll ask for that to be extended and then you’re going to have your big picture election issues about votes being counted. I don’t want to invoke the Bush v. Gore but there’s certainly been talk about a Bush v. Gore 2 especially in a place like Florida where there’s a lot of disuniformity in the way votes are counted.
And so it is unfortunate that as much as we are all lawyers, the hope would be that we would not be involved in election but I think the other aspect of that too is that we saw that some certification won’t happen on election day. I think that’s kind of a big change especially with absentee voting in places like — I think it’s North Carolina and Florida. They’re counting ballots now as they receive them. But for other jurisdictions, I don’t think that’s the case and so some of these issues are likely going to be resolved. The primary here in New York City where I was, I think it took over a month to certify some of the election results and so that is in a very well-resourced jurisdiction that have a lot of people working on these issues and so, not in a roundabout way but I do think there will be unfortunate — some big and some small litigation both on the state and federal level.
Chastidy Burns: So what you’re saying is I don’t have to worry about staying up late on November 3rd. There won’t be —
Jonathan Amarilio: You can go to bed.
John Cusick: That goal of saying after election day, I think I’m good. I think might have to be extended.
Jonathan Amarilio: Well, certainly the closer the election, the more litigation there’ll be, right? If we see, let’s say, Pennsylvania, North Carolina and Florida go to Biden, there really wouldn’t be a point in a lot of the litigation that we’re talking about, post-election litigation that we’re talking about provided the margins were large enough, right?
John Cusick: It’s always difficult to say as I’m sure both of you know, people like to litigate especially lawyers and so I think that regardless of how the results are going to be swayed, I think even if you see initial results come in, there’s been such an unfortunate from certain elected officials picture painted that the entire election process is illegitimate and so I’m not even sure right away. We’ve seen this play out, you begin by saying absentee voting or people who are in jurisdictions where it’s entirely vote by mail that that’s all rampant with fraud and if you don’t have election results right on election day, everything else is bad and so I think even if you do see election results coming in and there is certain tilt for one candidate over the other, I’m not sure that is unfortunately going to reduce the calls. It might make certain strategic decisions differently but I think this election is so contested.
We also unfortunately have a Supreme Court nominee who might be nominated during this election cycle too and so I think that also kind of puts a strain on this because we don’t know how that — I mean, we have concerns about that obviously happening during an election cycle but that too might, at the end of the day for some lawyers is it doesn’t matter what the courts on the lower level do, it’s what’s going to happen in the Supreme Court. And so, I think that unknown if Judge Barrett is confirmed and what her voting record is on voting rights, I think that’s another unknown that certainly could change some of the calculus too unfortunately, which should otherwise be a nonpartisan issue.
Jonathan Amarilio: And on that frightening note, we need to take our second break.
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Jonathan Amarilio: And we’re back. So John, your prognostications of doom and gloom and darkness and the end of democracy as we know it. Tell me that there is some bright spot out there that we can look to that we can grasp for that we can look forward to.
John Cusick: Yes and I think there are a couple. Certainly, we’re seeing jurisdictions and elected officials who are making it easier and safer and freer for folks to vote and so that certainly is a bright spot but I think the other one and Chastidy mentioned this at the top of the hour is that we’re seeing record turnout through the entire country. I mean records being shattered for people who are going out, they’re standing in line for two, three, four, five, six hours. They’re making that sacrifice. They understand that democracy is on the line and so I think it’s —
Jonathan Amarilio: More than 30 million people have already voted.
John Cusick: Exactly and so, this is such a bright spot because we are seeing not only people that are recognizing their power in the right to vote but they’re running for office, they’re registering people to vote, they’re mobilizing, they’re energized and so I think that is one of the big bright spots out of this is it really has shown that we all have a role to play in defending and maintaining our democracy and everyone, whether you’re a student, whether you’re a voting rights lawyer, whether you’re a non-lawyer can play such a major role not only by voting but also educating your friends, taking action and so I think that is one of the big takeaways from this election and hopefully moving forward because all hands on deck are needed.
Chastidy Burns: We appreciate the good news. Thank you.
Jonathan Amarilio: Yes, thank you. So let’s go to Stranger Than Legal Fiction. The rules are going to be a little different today instead of just finding one law that’s real and making another one up, Chastidy and I have done some research about voter myths, pieces of misinformation or just strange ballot initiatives and we’re going to pull john and pull each other to see if we can distinguish strange fact from fiction. John, Chastidy, are you ready to play?
Chastidy Burns: Ready.
John Cusick: Let’s do it.
Jonathan Amarilio: Chastidy, why don’t you lead us off?
Chastidy Burns: Okay! So under the category of Strange Ballot Initiatives. First, voters in the tiny Hell, Michigan decided back in November of 1997 on whether or not they were going to vote their entire town and the accompanying town taxes out of existence. That’s the first one. Second one, in San Francisco along with school vouchers, sales taxes and city charter revisions, voters decided back in October of 1993 on whether or not to allow a veteran police officer to walk his beat with a ventriloquist dummy.
Jonathan Amarilio: John, what do you think? Which one’s real?
John Cusick: The second one just seems so out there but then also it is a place like San Francisco, so there is a lot of —
Jonathan Amarilio: In my experience with these, the weirder it is, usually the truer it is but —
John Cusick: I think I’m going to go with San Francisco as the stranger than fiction. I think that I forget the place in Michigan, I feel like people might try to vote out taxes despite what the laws might be. So I’ll go with the second one.
Chastidy Burns: Okay. The first one was Hell, Michigan. They were deciding on whether or not to vote their entire town and their taxes out of existence.
Jonathan Amarilio: I’m going to say that one’s real as well, the Michigan one. Not only because of the tax issue but because I know a lot of towns are looking for ways to cut budgets and certainly incorporating or reincorporating into a larger neighboring town might be one way to do that. So, Chastidy?
Chastidy Burns: Okay. So the San Francisco ventriloquist dummy one is real.
Jonathan Amarilio: Yeah, of course.
Chastidy Burns: That initiative was approved October 30th of 1993 and fun fact, the hand carved dummy that the officer wanted to carry around on his beat cost $1,750. And then regarding the other one, that one was false; however, I actually just changed the name of the town. Hell, Michigan is a place —
Jonathan Amarilio: Oh, come on.
Chastidy Burns: This actually happened in Castlewood, Virginia. The initiative was approved. The town did abolish itself and was absorbed into another county.
Jonathan Amarilio: I’m calling shenanigans on that. That’s not fair.
Okay, number two and this is fair, ladies and gentlemen. Option number one: In Texas, you can use a handgun license but not a student ID to register to vote. That’s option number one. Option number two: In Ohio, voting twice is illegal but intent matters. It is an affirmative defense to a criminal charge of voter fraud if you can prove that you did so to test the integrity of the voting system. John, you better get this one right.
John Cusick: Well, I know from LDF is one of the organizations in that Texas photo ID litigation and so —
Jonathan Amarilio: Ah, there you go.
Chastidy Burns: I was going to say he probably knows the actual answer.
Jonathan Amarilio: Chastidy, you want to make it interesting and challenge him a little?
Chastidy Burns: I was going to say that the Texas one is true because I know they love their guns down there. So it makes sense.
Jonathan Amarilio: And it is. Yeah, maybe that one wasn’t as hard as it should have been. But you know what? It was fair.
Chastidy Burns: It’s fair, okay. I’ll do better next time.
Jonathan Amarilio: And that’s going to be our show for today. I want to thank our guest, John Cusick of the NAACP Legal Defense and Education Fund for this timely and vitally important conversation. The number John handed out before was 1-866-OURVOTE. If you see something at the polls, call that number and say something. John, good luck. Keep fighting the good fight.
I also want to thank my co-host, Chastidy Burns, our executive producer, Jen Byrne, Adam Lockwood on sound and everyone at the Legal Talk Network family. Remember, you can follow us. Send us your comments, questions, episode ideas or just troll us on Facebook, Instagram and Twitter @cbaatthebar. Please also rate and leave us your feedback on Apple Podcast, Google Play, Stitch or Spotify or wherever you download your podcast. It helps us get the word out. Until next time for everyone here at the CBA, vote. Vote like your life and the lives of your loved ones depend on it because this time it just might.
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|Published:||October 23, 2020|
Young and young-ish lawyers have interesting and unscripted conversations with their guests about legal news, events, topics, stories and whatever else strikes our fancy.
John Cusick joins the show to discuss the current state of voting rights.
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