A Look at Voting in the Upcoming Election

Episode Notes

Transcript

Lawyer 2 Lawyer

A Look at Voting in the Upcoming Election

08/08/2020

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Intro: I’m alarmed and worried about the future of the country in a way that I never have been. I think it is up to all Americans of goodwill to do their civic duty as best they know how.

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 Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a legal blog named “May it Please the Court” and have two books out entitled “The Sled” and “How to Get Sued.”  Well, before we introduce today’s topic, we’d like to take this opportunity to thank our sponsors, LEX Reception and Blue J Legal. LEX Reception is a close-knit team of virtual receptionists dedicated to professionalism, warmth and a 24/7 availability for law firms and attorneys. Blue J Legal’s AI powered foresight platforms accurately predict court outcomes and accelerate case research by using factors instead of keywords. You can learn more at bluejlegal.com. Well, on July 30, 2020 this year, President Trump tweeted the following with universal mail-in voting not absentee voting, which is good. 2020 will be the most inaccurate and fraudulent election in history. It will be a great embarrassment to the USA. Delay the election until people can properly securely and safely vote? So, what does it mean when a sitting president calls for the delay of an election? What’s the difference between universal mail-in voting and absentee voting? And why does this controversy even exist? How will it all affect the 2020 election? Today, on Lawyer 2 Lawyer, we’re going to spotlight voting in the upcoming November election. We will discuss this tweet, the controversy surrounding mail-in voting and predictions on what we’re going to see on election day.

To do that, we’ve got a great show for you. Our guest is Professor James A. Gardner, a specialist in election law from the University at Buffalo School of Law. He is one of the most frequently cited legal scholars working in the field of election law and recently ranked among the top 10 most cited faculty in election law scholarship. According to the influential election law blog, Jim is also a leading authority on American State Constitutional Law as well as the Principles of Federalism. Welcome to the show, Jim.

Jim Gardner: Thanks, nice to be here.

J. Craig Williams: Well, we pretty much know what Trump said, I read it there in the introduction. What’s your initial reaction to it?

Jim Gardner: It’s one thing after another. So, it’s hard to be surprised or even shocked. I guess these days at the things that the president says, but the idea that this will be the most fraudulent and inaccurate election ever run because of mail-in voting is simply false. There is no reason to think so. The election may have problems because of low turnout because of the pandemic but it won’t be inaccurate or fraudulent because of the use of mail voting.

J. Craig Williams: And it’s interesting that you raised the pandemic. I looked back briefly at the history of voting during the 1918 pandemic before women had the right to vote and it turns out that there was a low turnout like you predict here perhaps and as a consequence, the republicans won both the house and the senate. What is Trump’s problem here? What’s really going on?

Jim Gardner: What’s really going on is something that’s quite dangerous and something with which the United States fortunately has no prior experience. Donald Trump — and I’m going to use strong words here but they’re justified. He is an aspiring authoritarian. He is taking plays out of an authoritarian’s playbook that is used around the world. We’ve seen it used recently in Hungary and Poland, in Turkey, in the Philippines, in Venezuela and what he appears to be trying to do is to undermine public confidence in the election to such an extent that he will be able to stay in power regardless of the outcome.

J. Craig Williams: And it’s not just this tweet, I mean, he’s also made some complaints about the postal service that the postal service has apparently pushed back about.

Jim Gardner: Yeah. So, it’s really interesting here. You know, for 20 years ever since Bush versus Gore — ever since that the 2000 election really exposed to public view, a lot of the inadequacies of the American electoral system, people have been complaining that we in the United States don’t have a highly centralized and highly professional system that it’s run by all 50 States and in fact the States further redelegate authority down to the county level, which is of course true.

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On the other hand, the current situation exposes one of the great benefits of having a decentralized system which is that somebody’s sitting at the center, Donald Trump can’t get his hands on the entire electoral regulatory apparatus and manipulate it to suit himself. But the postal service is a federal agency and because of the unusually great emphasis that will be laid on postal voting right now actually Trump does have I think perhaps some opportunity to influence how things go.

J. Craig Williams: Well, Trump has said — well let’s take a look really at what power Trump has to affect the election beyond the postal service. You know, congress sets the election when it’s supposed to be so that that can’t happen and there was huge pushback on both sides to his tweet, but what power does he have to influence the election?

Jim Gardner: Let’s talk about his statements about delaying the election. So, the President of the United States has no power to delay the election. This is one of the consequences of our decentralized system. The States are the ones that regulate the elections. The constitution fixes at an absolute date and time, the end of the presidential term. Congress has enacted laws that provide for the date of the election and the meeting of the electoral college and the President of the United States has no authority whatsoever to influence that. So, he’s really out of the picture.

J. Craig Williams: Can Trump stay in office — I mean, what happens if we do — let’s play that game, the hypothetical in law school Trump loses the election, Biden wins and he refuses to vacate the White House and they got a fence and military, what happens?

Jim Gardner: This is a situation that is faced with dismaying frequency in other countries around the world. And it feels very weird to say these things about the United States, but what you have to hope is that the military and employees of the federal government decide that their allegiance is the allegiance that they took an oath to hold which is an allegiance to the constitution and not to any individual. You know, at noon on January 20th, Donald Trump would be considered to be a trespasser in the oval office if he didn’t voluntarily leave before then. That really is the only solution to that problem, I suppose.

J. Craig Williams: Trump is making a lot of noise about mail-in voting in the universal mail-in voting. That was a bill that was proposed, but did it never make it into law?

Jim Gardner: In what jurisdiction are you speaking of?

J. Craig Williams: I believe the universal mail-in voting act was proposed I think in 2007 to fix some of the issues in prior votings. I think there were some issues regarding States including voting restrictions and qualifications in order to vote as part of mail-in voting?

Jim Gardner: Yeah. So, there’s been no federal intervention in that way. So, just to make clear that the context, Article 1 Section 4 of the constitution provides that States have the power to regulate not only their own elections which is simply implicit under the system of federalism and the sovereignty that States retain under that system. But Article 1 Section 4 also gives makes states essentially the first line of regulatory authority even for federal elections which very unusual arrangement considered in global context, but congress has the authority under that provision to essentially override State regulation with respect to federal elections, but it has used that authority very, very sparingly. When we talk about election law, we’re talking about overwhelmingly about State Law. Sure, there’s a couple of federal statutes, there’s the Voting Rights Act, there’s the Help America Vote Act, there’s the Motor Voter Law, but really, it’s a matter of State Law. And anyway, so at the moment, the laws that govern how people vote where they vote by what means and method they vote that’s all State Law.

J. Craig Williams: And they’re all different?

Jim Gardner: Yes, absolutely. I mean, there does tend to be – so, federalism permits of course in principle, a huge amount of diversity but what does tend to happen among the States is that they talk to each other and best practices tend to emerge over time.

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And so, there does tend to be some convergence of State Law, but in the area of elections, I think there’s probably less convergence than we would find in other areas. I mean, certainly like — there’s no equivalent of the uniform commercial code for electoral law.

J. Craig Williams: Right. Well, and historically States have imposed different restrictions on different classes of people. Can you give a brief little history of how — I mean, I know it’s extensive, but what are some examples of how people have attempted to restrict voting and how does it turn out?

Jim Gardner: So, I guess it really all started in the late 19th century before then voting practices were really determined by the political parties. So, you may know the parties printed their own ballots and voters would be offered ballots of the different parties as they were approaching the voting place. And the only thing the government really did was count but fraud was so widespread and violence was so common that eventually all the States adopted what was called at that time the Australian system which is the system of secret balloting. So, as soon as there was a secret ballot which was printed by the government, the government started to have to make all kinds of decisions about what the ballot would look like and who would get on it instead of the parties making those decisions. And so that really got the States into the business of regulation. One of the first and most important State Laws in this field was a requirement of voter registration. So, there were charges flying around probably true that that people were voting in multiple jurisdictions or that ineligible people were voting non-citizens and so on.

And so, this entire apparatus of voter registration was introduced towards the end of the 19th century and the early 20th century, as it was the first regulatory measure, it was also the first measure that had a real impact on the outcome because what happened was turnout dropped substantially. Once the onus was put on voters to register, a lot of people just didn’t do it and in ways that were not random. And so, it began, it was the first of many kinds of measures that skewed the outcome.

J. Craig Williams: Are people still disenfranchised? Do we still have voting restrictions in place that prevent groups of people from voting?

Jim Gardner: Yes. We’re past the point, long past the point where a voter eligibility requirement could be descriptive of some characteristic of a person. We can’t say, you can’t vote if you’re black or you can’t vote if you’re poor, you can’t vote if you’re female or you can’t vote if you’re Jewish, but every regulatory measure has some kind of impact on who is going to be more or less likely to show up, but what we are seeing much more recently is what can really only be described as deliberate attempts to suppress voting by certain kinds of groups.

So, voter ID measures voter registration, list purges restrictions on voter registration drives, proof of citizenship measures all these kinds of things have an impact and at least political scientists tell us that the impact tends to fall more heavily on people who are likely to vote democratic.

J. Craig Williams: What do people do in the event that they are disenfranchised when they go to the polls? They find out that their name isn’t on the list or they have some other requirement. Is there a way that you can actually vote despite being denied?

Jim Gardner: That is something that differs from jurisdiction to jurisdiction as well. In many circumstances, federal law requires that a person who has refused voting be given a provisional ballot which they can then fill out and that gets sealed and then there’s a period following that when the voter’s eligibility to vote can be determined in some kind of a proceeding. Other than that, there are legal routes that can be pursued although even those are being choked off, Indiana I think just passed a law restricting the ability of voters to Petition Courts to hold polling places open for extra hours on account of very long lines. So, States are intervening in that as well.

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J. Craig Williams: Great. 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: Predict legal outcomes with Blue J Legal’s foresight platforms using AI to analyze thousands of cases and administrative rulings. Blue J Legal can predict with 90% accuracy on average. How a judge would likely rule in your case? Plus, you can research by factors and outcomes to find the relevant cases in seconds. Stay ahead of the curve and learn more at bluejlegal.com. Eighty percent of callers who reach voicemail hang up, hiring and answering service means that you never miss a lead. LEX Reception can take your calls live and a legal intake and schedule appointments in a professional manner for less than the cost of hiring an in-house employee. There are no contracts and the service is quick and easy to set up. For 50% off, your first month service, visit lexreception.com/lawyer2lawyer. And welcome back to Lawyer 2 Lawyer, I’m Craig Williams and with us today is Professor James A. Gardner, a specialist in election law out of the University at Buffalo School of Law. We’ve been talking about various restrictions on voting and how the president can affect voting. President Trump is now saying, “Well, it’s okay for Florida to vote” and he’s issuing some type of a challenge perhaps in Nevada over the votes there. Is it truly because one is going to be republican and the other one is going to be democratic?

Jim Gardner: Well, that does seem to be the common thread with Mr. Trump and he’s been – I might say disarmingly frank about that. He criticized the law introduced by democrats in the house on the grounds that if the law were passed, you’d never have another republican elected. So, he’s quite transparent up front about that. His claims are junk. There’s no reason on earth to think that Florida will be a better manager of the election no matter how it ends up being conducted than other States and of course maybe Mr. Trump’s memory is poor, it was Florida that because of its extremely poor election administration precipitated the crisis of Bush versus Gore. And as for Nevada, the Trump campaign I guess today or yesterday sued the State of Nevada to block their plan to distribute ballots to all registered voters. I haven’t seen the complaint, I’d be very curious to know what the legal grounds are but from the statements that have been made, it sounds like it has to do with the risk of fraud and the truth is that the risk of voter fraud is approximately zero.

J. Craig Williams: Back in the day, there was some serious fraud as you mentioned. When did that change and how did it change?

Jim Gardner: Well, the secret ballot got rid of an entire culture of electoral fraud or at least it made the commission of electoral fraud much, much more difficult. That didn’t mean of course that there wasn’t electoral fraud but what it did mean is that the location in which fraud is perpetrated in order to have an effect migrated. And it migrated from the individual voter to the official apparatus. So, right now, when we say voter fraud is approximately zero, what we mean is that fraud perpetrated by individual voters is zero and the reason is because it’s very hard to get away with and it gets you practically nothing and the risk is a felony conviction. If you want to show up at the poll and cast a vote in the name of somebody who you are not, you have to risk a felony conviction for what? To get one additional vote for your candidate. That’s fraud on what I like to think of as a retail scale. If you want to really influence election, you have to commit fraud on the wholesale level.

So, the place where fraud occurs and when it does occur which is still extremely rare but where it has an impact is when it is corrupt election officials who are perpetrating it. So, for example in the 1982 famous example. In the 1982 Chicago mayoral election, the democratic machine controlled this very heavily and all kinds of things happened like precinct captains were going into the polling place after the polls were closed and marking a straight democratic ticket and running through the machine 500 additional times.

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That’s the kind of fraud you need to worry about and all the measures that are being taken about citizenship proof or photo identification, they don’t address the actual way in which fraud under the current legal regime could actually occur.

J. Craig Williams: Well, President Trump has kind of reversed himself as he has several times and now is saying that he has the authority to issue an executive order to address the expected influx of mail-in voting. What could he possibly say?

Jim Gardner: I don’t know what he means by that. I don’t know who it would be addressed to, would it be addressed to the postal service?

J. Craig Williams: I can only imagine.

Jim Gardner: I don’t really believe that the president has supervisory authority over the postal service, but this is a piece of administrative law arcana that I’m not familiar with.

J. Craig Williams: In a recent interview and perhaps now somewhat famous Axios interview. President Trump said that he thinks it’s going to take two months for Americans to see the result from November’s presidential election. That seem possible given even what happened in 2016, we knew that night that morning?

Jim Gardner: This election is going to be very, very different because of the pandemic, a lot, a lot of people are going to be voting by mail and we’ve already seen from the primary season so far that counting votes that are posted by mail takes time and there’s no question that the American public has gotten very accustomed to a little election night ritual, we have dinner, we go turn on the television set and we expect that by the time the 11 o’clock, top the 11 o’clock news rolls around, the major news organizations will have at least a prediction. We know that that’s not the actual count, but we go to bed and we expect the next morning to have an authoritative count, we expect to read that the loser has already conceded. Things are going to be different this time around whether they’ll take two months, I think, well, they can’t, they can’t take two months. The schedule is set election day is November 3rd, any disputes over the identity of electors under the federal statute have to be resolved by the States if they’re going to be resolved by the States by December 8th and then the electoral college meets on December 14th to vote.

So, it’s all got to be done within that window. Now, some States have proposed trying to speed things up by getting legislation allowing State electoral officials to begin to count the absentee ballots before election day and republicans are resisting this politically and with lawsuits wherever it’s been proposed.

J. Craig Williams: Well, you mentioned the electoral college and that’s an interesting thing because we’ve just had a major supreme court decision on faithless selectors. Can you kind of let us know what happened there?

Jim Gardner: Yeah. So, the electoral college is an interesting institution. These electors are appointed in a manner selected by the State legislature under Article 2 of the constitution and then they they’re the ones who hold the election that actually counts and there is a long, long historical tradition of members of the electoral college simply deferring to the wishes of the people of their State, but they’re not required to do so by the constitution and in fact, the writings of the framers and particularly Alexander Hamilton who wrote on this in the federalist papers suggested that the whole design of the electoral college was to introduce a body of wise and virtuous men who would actually make the selection. A kind of selection that the people themselves were not really fully competent to make. And it never worked that way but on the other hand, over time, periodically, a handful of electors decided that they would not follow popular opinion in their State and they voted for somebody else.

So, States started taking regulatory measures to control these votes and the question arose and was decided by the court whether States could sanction a member of the electoral college for voting so-called incorrectly for voting not in accordance with the popular vote of his or her State and the supreme court upheld the authority of States to impose those kinds of sanctions so as to essentially write out the discretion of the electors themselves.

J. Craig Williams: So, it becomes more of a rubber stamp?

Jim Gardner: Yeah. It does appear to be now or not every State has this kind of legislation, but if a State wants to do so, a State can make the office of presidential elector essentially a ministerial office like a clerk.

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J. Craig Williams: Well, the other part that we haven’t yet talked about is how foreign governments are influencing our election and attempting to get President Trump re-elected. There’s been a lot of noise about Russian interference in the last election and again in this election, it appears that as you said Trump pretty frankly states that he’s out there asking foreign governments for their support and help to get him re-elected. How is that even possible?

Jim Gardner: Well, it’s possible. He’s doing it in contravention of long-standing norms of presidential behavior. One of the things that the Trump presidency has underscored is something that we often overlooked, which is that the written constitution is very, very sparse and it has been supplemented over the years with unwritten conventions that people follow and they have had the force of custom and it has been understood that to deviate from this custom is a significant kind of a breach and from the first day of his presidency from even before the first day of his presidency, Mr. Trump uh showed his willingness to flout these conventions and probably he showed his unawareness of them as well, but he’s certainly been willing to flout them and the idea of foreign interference in the elections is extremely worrisome and it’s equally worrisome that the Trump administration has done essentially nothing to prepare us in terms of electoral security and technological security for this eventuality.

So, it seems an absolute certainty that some kind of inter-meddling will be attempted and again, that shows the benefits of having it in fact a decentralized system because very difficult to hack 50 different systems.

J. Craig Williams: Yes. And there is also that benefit, the big fight between the federalists and some of the framers.

Jim Gardner: Yes, it’s true. The experiment of federalism we might say is being proved up every day whether it was a good idea or a bad idea. Even today more than 200 years later exactly.

J. Craig Williams: Right. Well, Jim, we just about reached the end of our program. So, I’d like to take this opportunity to invite you to share your final thoughts and allow our listeners to reach out to you at the end of the show.

Jim Gardner: Well, my thoughts are I’m alarmed and worried about the future of the country in a way that I never have been and I think it is up to all Americans of goodwill to do their civic duty as best they know how and other than that, we just keep our fingers crossed and if listeners want to reach me, they absolutely can. I can be emailed at [email protected]. I’d love to hear from you.

J. Craig Williams: Great. Well, thank you very much and as we wrap up, we’d like to thank our guest, James A. Gardner for joining us today. Pleasure having you on the show.

Jim Gardner: It’s been great to be here. Thanks so much.

J. Craig Williams: Well, for our listeners, if you like what you heard today, please rate us on Apple Podcast or 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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