TF 42 THE TROUBLED STATE OF VOTING RIGHTS HEADING INTO THE 2020 ELECTION - RUSH TRANSCRIPT
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Harry Litman [00:00:23] Everyone, welcome. And listeners, welcome back to Talking Feds, a prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and a current Washington Post columnist. Today, for people who aren't in the room, we're in Austin, Texas, for a live recording of a very [APPLAUSE] -- arguably, maybe not even the coolest town in America. Right? A very special episode here at the Texas Tribune Festival where we've had two really great days chock full of panels on timely and important topics and fantastically knowledgeable commentators. And I think we will extend that run of great panels. Our topic is the troubled state of voting rights in advance of the 2020 election, could not be more timely and critical. And we certainly have four fantastically knowledgeable commentators on the topic whom we're thrilled can join us today. And let me briefly introduce them: Joaquin Castro, the congressman, probably known to many of you represents the 20th Congressional District of Texas in the US House of Representatives. That's since 2013. And for 10 years before that, he was a member of the The Texas House of Representatives. First, thank you very much for joining me.
Joaquin Castro [00:01:58] Good to be with y'all. Thanks for having me.
Harry Litman [00:02:03] As many of you know and is also germane to our topic, he serves as campaign chair for his brother, former HUD secretary Julian Castro, who is running for president and for whom he seems fated to be confused by MSNBC this week. This is serious. He said, "You guys at MSNB know that's me, right? I grew a beard. Do I need a face tattoo?"
Joaquin Castro [00:02:33] Apparently, I do need a face tatoo. Now it's just a matter of what I'm going to get on my face.
Harry Litman [00:02:37] He is the only Castro in the room. And I actually have a serious question about the campaign. You know, as attorneys anyway, which I guess, you're surrounded by, you know, you're told don't represent a sibling, someone you're too close to because you have this emotional connection that makes it hard to be, you know, cool headed. Does this not come up in a in a campaign where, I don't know, someone attacks your brother and you wanna, you know, may be improvidently duke it out. How do you stay cool headed, seriously?
Joaquin Castro [00:03:09] That happens every time I read Twitter. [LAUGHTER] No, I mean, you know, my brother, my brother and I have been in politics now for several years. And, yeah, I mean, you're there to support your family member and do everything that I can. I'm flying out tomorrow morning to Iowa to campaign for my brother. And so it's been exciting. It does take -- they used to say that to go into politics or to be in politics, you need a thick skin, in the age of social media now, I think you need Teflon. It really is.
Harry Litman [00:03:40] And maybe no fingers. OK. To my immediate left, Ellen Weintraub, who is the chair of the Federal Election Commission, which protects or does its best in our troubled times, the integrity of the campaign finance process. And she's got extensive experience in election and election law. Something many of you may have seen, interesting incident from yesterday when there were there were efforts by. This is how bad and ugly it's gotten back in D.C., the Republicans wanted a weekly memo or weekly rule and they wanted to block the publication of it because of one paragraph. They hoped not to see the light of day. Strategy backfired. I think it's fair to say. Can you can you explain how you handled this one?
Ellen Weintraub [00:04:37] Well, I I put out a statement last week just summarizing how the FEC interpreted the law of the foreign national ban and what a thing of value is. It's something that obviously a lot of people are talking about, I thought would be helpful to put out something from the FEC. It can't be. It's a proposed interpretive rule that we can't vote on right now because we don't have a quorum at the FEC, which is another whole problem. But I still think that it was a it was a sort of a vanilla summary of what the law has been. And I thought it would be useful to have it out there for people to see. My Republican colleague did not think it was a useful thing to have out there for the public to see. And so really, for the first time ever said when we put out our weekly digest that I could not put that in and therefore we couldn't put the digest out because I insisted on having it in as every other commissioner who has ever put a statement out, has had it in the weekly digest. So when we couldn't put out the digest, I just tweeted it out.
Harry Litman [00:05:36] Tweet at a time.
Ellen Weintraub [00:05:38] 57 tweets.
Vanita Gupta [00:05:38] And it's all over Twitter now.
Harry Litman [00:05:44] Well, that's the point. I think you were saying she got like ten thousand new followers and so much more attention to tweet number 34 than we ever would have had.
Ellen Weintraub [00:05:51] That was a good one. [LAUGHTER].
Harry Litman [00:05:53] I'm thrilled and honored that Vanita Gupta is here. She is now the President and CEO of the Leadership Conference on Civil and Human Rights. But prior to that, she served as the Principal Deputy Assistant Attorney General and then as head of the Civil Rights Division at the US Department of Justice from 2014 to 2017. Now, this was -- 2014 is already, there've been some real setbacks in the Supreme Court, a challenging time for enforcement of a voting rights agenda. In brief, because we'll get to the individual areas. You know what, what does it look like for a progressive activist, Assistant Attorney General in the voting rights area? What sorts of things could you do even confronted with the legal obstacles and challenges that you that you, in fact, inherited?
Vanita Gupta [00:06:49] Well, I came into the Justice Department a year after the Supreme Court had really gutted the heart of the Voting Rights Act in the Shelby County decision. And it used to be before the Shelby County decision in 2013--.
Harry Litman [00:07:03] Which we'lll get to by the way--.
Vanita Gupta [00:07:04] Which we'll talk about, but the Justice Department had to preclear changes, local changes in admin, the way elections were carried out in order to ensure that there was no racial discrimination or impact, racial impact in those changes in states that had long histories of discrimination. And so this was really the heart of the Voting Rights Act. And the Voting Rights Act has long been considered probably one of the most effective federal pieces of legislation. And so we had to then there were literally a whole team of folks in the voting section who no longer had jobs, who used to analyze these maps and do this work. And we had to rise to the challenge to figure out in the immediate hours that after the Shelby County decision, states like North Carolina, states like Texas went to work to pass some of the biggest voter suppression laws. Joyce is also Alabama--.
Joyce Vance [00:07:57] Alabama passed theirs in advance and just put it into effect days after Shelby.
Harry Litman [00:08:01] Texas too the day after, I think. Isn't that right?
Vanita Gupta [00:08:02] Yeah, North Carolina was literally just hours later. And so we then had to get to work to challenge these laws. And we ended up spending years challenging these laws. But meanwhile, we'll talk about this--
Harry Litman [00:08:15] So the DOJ came and it was the US V. North Carolina. We don't see those captions as much these days.
Vanita Gupta [00:08:22] You don't see those captions as much these days. We'll talk about that as well. But, you know, the reality is Texas had a number of elections that took place pursuant to a law that years later was found to have been motivated by intentional racial discrimination. And over 200 officials in the state of Texas were elected pursuant to the Texas I.D. Law that federal courts then later found to be unconstitutional. And that's the problem that we're in, and I'm sure we'll talk about it.
Harry Litman [00:08:52] But of course, I assume those two hundred remain in office. And like so many things in this area, you know, you think back to Bush v. Gore and the butterfly ballot once once the eggs are broken. It's very hard to--
Vanita Gupta [00:09:05] Yeah. I mean, this is the problem with with voting rights is that when officials enact laws at the state level and sometimes at the federal level, but at the state level, that result in voter suppression found to have been animated by intentional racial discrimination.
Harry Litman [00:09:22] Very hard finding to make.
Vanita Gupta [00:09:23] It's a very difficult finding. In North Carolina, their state law was found to have been enacted with surgical precision to disenfranchise African-Americans in the state of North Carolina. Took years to get that ruling. But the problem is there's no consequence for the officials who pass these laws. And so elections take place. People are disenfranchised. And this was what got lost in the Shelby County decision. And I can talk some more about what we are all doing to rise to the challenge and what we're doing in the face of the 2020 in the face of 2020 election. But we will also be entering the 2021 redistricting cycle without the full protections of the Voting Rights Act for the first time since 1965. And so that's why we're all working hard right now to kind of meet the moment.
Harry Litman [00:10:11] Finally, I just want to introduce or reintroduce because anyone who's listened to the podcast knows Joy Vance literally a charter Talking Fed. A lot of people know her background as a U.S. Attorney. She's actually a hands on litigator in this area. In fact, can you give us the quick summary of the work you're doing on behalf of New York?
Joyce Vance [00:10:33] So I live in Alabama, which means doing voting rights work is pretty much a full time job for lawyers in my state, where the state of Alabama has sued the Department of Commerce, arguing that only data regarding citizens can be used in drawing voting districts. And that might sound like a reasonable proposition on its face. But for one thing, the Constitution says count all people and the law is well established in this area that we use data on on residents, on people who are present. So Alabama is trying to get a second bite at the apple. The New York Attorney General decided that she would intervene because she didn't believe that when Alabama sued the Department of Justice that she could rely on the Department of Justice to really vigorously defend that action. And so I now represent, as local counsel, the state of New York, about 12 other states, a number of municipalities, including Seattle, is one of our municipalities in New York City who have intervened so that we can give the case, the defense that it deserves, because if this is a loss in Alabama, it will impact the entire country.
Harry Litman [00:11:44] OK. We've got this really, we've got a daunting list even to just say and try to cover in 45 minutes. Not to mention trying to fight back in the field about. But there's so many different ways that touch a multifarious problem we have. Poll closures. Access to voting materials. Insecure voting technologies. Possibly foreign interference with voting technologies. Restrictive state wide voting laws. Barriers to registration. Redistricting challenges. Bogus charges of voter fraud. Continued influence of money. And and now the whole sort of overlay and threat of foreign misinformation and manipulation of social media. Unlawful spending. And I'm sure I've left out half of them. But that's the kind of minefield that, you know, the sort of heroes in front of you are trying to navigate. Let's start at least briefly at the top with -- Joyce just mentioned the constitution says things have to be counted equally, but it's a little surprising what the constitution says about the thing we really take to be bedrock. I'll quote Vanita. "Voting is the language of American democracy. The ability to participate in civic life, to have a voice in choosing the elected officials whose decisions impact our lives, families and communities is at the core of what it means to be an American." No one would dispute that. We learned that in third grade, but it's actually not really in the Constitution. There's a lot in the Constitution about equal treatment. But, well what is there and what what does the constitution tell us about this one person, one vote principle that we take to be canonical? Anybody?
Joyce Vance [00:13:31] Well, it doesn't really talk a lot about your right to vote. I mean, that's one of the interesting things. It's implicit. It's clear that the founding fathers assumed that we had a right to vote--.
Harry Litman [00:13:41] White men did, yeah.
Joyce Vance [00:13:42] It's not spelled out as clearly as we might want it to be in 2019.
Vanita Gupta [00:13:46] And I mean, it actually said so you have to -- that white men is implied as that they have the right to vote. But actually also the Constitution had the three fifths language in there where African-Americans are constituted three fifths of a person for purposes of the census and for voting, which women and people of color did not have the right to vote. So the struggle for the right to vote and to achieve it for all citizens of the United States has been a long struggle in this country and remains an ongoing struggle as efforts to disenfranchise, in particular, continued efforts to disenfranchise Latinos and African-Americans in this country remains all too real and all too alive.
Harry Litman [00:14:28] And it's really true. I mean, there's no you no, at Con Law students are surprised to learn there's no exact anchor in the Constitution. You know, Bush v. Gore, if you consider that authority for anything but says, you know, there's no federal constitutional right to vote, which seems stunning. And of course, there's a lot of protection. And the Constitution, there's many constitutional arguments to raise. But we start with this most fundamental and yet unarticulated right. So Vanita mentioned there were sort of a killer combo of three Supreme Court cases in the last ten years that we could take two episodes just detailing. And we're not because there's so much to move on to. But I want to sort of touch on each of them and just ask for reactions in the panel about, you know, is there anything to be done since the Supreme Court interpreting the Constitution? What is being done at all? So we have these three five to four decisions that people here are probably familiar with. And first, Shelby County, which I think it is fair to say, gutted the most important provision of the Voting Rights Act, which had a sort of coverage formula for deciding when states who made changes to voting had to get advance clearance from the DOJ no more. The door is sort of opened for Congress to come in and act, but it certainly it hasn't done anything. So let me ask you or anyone how big a practical effect is that had? I mean, states rushed in to fill the breach? How big has that been? Not just, you know, on an actual on the ground level?
Vanita Gupta [00:16:11] There have been over 20 states that have enacted voter suppression laws in one form or another since the Shelby County decision. And as I said, litigation to challenge them in a number of areas has been successful, has led to the state legislatures meeting to change those laws. But the suppressive effect has been pretty profound.
Harry Litman [00:16:33] Are they very different one from the other? The twenty three or, you know, I know alot of them are voter I.D. Laws...
Vanita Gupta [00:16:38] There are a lot of different ways in which voting has been made harder post Shelby. So states will do it by cutting early voting or cutting same day registration or cutting, creating really restrictive requirements to obtain voter I.D. and then demanding that that voters have I.D. at the polls. There are any number of ways in which states have done this. We just released at the Leadership Conference, the organization that I work for, a report documenting the systematic closing of polls. Poll cites, polling places all over the country, Texas being the number one -- we call it a mega closer. But since the Shelby County decision, close to seventeen hundred poll sites have been closed. These used to be the kinds of hyper local changes that would need to be precleared in states that had long histories of racial discrimination and voting, no longer. And so, there no longer is an ability to assess what the racial impact is of these systematic poll closures on communities of color all over the state of Texas right now.
Harry Litman [00:17:42] Just so the preclearance process, it wasn't just an advance, but you could ask certain questions. So it was a process where people they really had to make the case to the department, correct?
Vanita Gupta [00:17:52] Yeah. The state, the states and the jurisdictions face the burden of proving that racial discriminate, that the change did not have a racial impact. That now has totally been turned on its head. And while the Voting Rights Act remains law in other sections of it, the onus now is on the voter to establish that racial discrimination animated it. And it sounds really wonky, but it makes a huge difference. And for the most part, it's really hard to find out when little changes are made in local areas. But when you amass a lot of changes, you really can have a profound racial impact that no longer can be detected and fixed.
Harry Litman [00:18:28] Congressman, do you do you -- for instance, this happened in Texas. What did the proponents of it assert was the -- I assume they didn't say it was to disenfranchise. Why did they say we don't want people to vote early? How can you defend that?
Joaquin Castro [00:18:40] I think a lot of it is couched in good government. It's couched in making sure that democracy is protected, that the ballot is protected.
Harry Litman [00:18:47] You mean against fraud? Is that the notion?
Joaquin Castro [00:18:49] Yeah, the arguments were against fraud, against abuse. For example, in 2011 in Texas, that was the year that well, it was a redistricting year, but was also the voter I.D. year where voter I.D. was passed. And a lot of the focus was both on redistricting and on voter I.D.. But when you think about voter suppression, it's basically a point shaving scheme. It's doing little things that create obstacles to people voting. So, for example, with voter I.D., it may be that if you pass a voter I.D. law, ninety five percent of the people are going to be able to meet the requirement and turn over their I.D. But you know that within that margin of 5 percent, it's mostly the people that are voting for the other party or the other candidates that are not going to have their I.D. They're not going to vote. So there were some lesser known things. For example, it used to be in Texas that if you were deputized in, say, Travis County to register voters, that you could go register voters throughout the state. Well, in 2011, I believe the legislature changed it so that you had to become deputized in each county in which you wanted to register voters. So it's little things like that that just make it tougher for groups to organize, to go out and register folks. Bear in mind that Texas routinely has has one of the lowest voter registration rates, but also historically one of the lowest turnout rates in the country. And these things have made it tougher. And, you know, we talk about the Voting Rights Act. I'm worried about the Voting Rights Act getting reauthorized when it comes up again. If it comes up or if it came up while President Trump was in office, I don't think any part of the Voting Rights Act would be reauthorized.
Harry Litman [00:20:23] Right. So, I mean, we have this dynamic where the court said in striking it down. This is based, said the court, on antiquated information, the bad old days of the 60s. But we'll still keep the basic right in their Section 5. But Congress needs to have a new kind of system and findings. But, of course, you know, it's a it's a bit of a mixed blessing. You know, for advocates on the ground, because what could be possible, that's that's kind of a possible hornet's nest to open and--
Joyce Vance [00:20:54] Can I just make that concrete for a second? Because I think what the Congressman is talking about--
Harry Litman [00:20:57] You thought that was a little abstract?
Joyce Vance [00:20:59] No, I think it's so important and I think it's worth underlining it. In Alabama, we had an I.D. Act that was passed in anticipation of a bad decision in Shelby County. And so there were stories in the 2018 election about a 94 year old veteran who had voted in every election that he was eligible to vote and who suddenly couldn't vote because he didn't have a driver's license, which was the gold standard for I.D. in Alabama. And what it really meant was that the people for whom it was most difficult to get these forms of I.D. because maybe they lived in a county where the registrar's office wasn't opened more than four hours a week. And they worked or maybe they were older and they couldn't get there. And the Secretary of State would get past this in court by saying, well, I have a mobile van that'll go out and make I.D. for these people, which really wasn't true. So you would hear about older people, people with disabilities, working moms, people who just didn't have that flexibility, who suddenly were unable to vote. And I think that that's the shame of this.
Vanita Gupta [00:22:01] Right now in Congress -- I testified two weeks ago for H.R. Four, which is a federal bill to restore the Voting Rights Act. And there is a proposal of a new formula in this bill. And there's been a lot of thinking that has gone into it. It will almost likely pass the House in the fall and then will enter Senator Mitch McConnell's legislative graveyard and not get a hearing. But the whole point and I testified in the end of January on H.R.1, which is this amazing omnibus bill to restore our democracy to unrest, yet not just to restore the Voting Rights Act, that really around automatic voter registrations, a whole list. It also went into Senator McConnell's graveyard and never got a hearing in the Senate. But these are the markers that we are establishing that the House is passing a lot of really important legislation. Thank you. Going nowhere in the Senate, but to mark the democracy reform agenda that needs to take place as the first order of business in a first 100 day Congress in a new electoral situation come 2020, which I hope all of you will take a part in by voting-.
Joaquin Castro [00:23:06] We need a Democratic President, Democratic House, Democratic Senate. [APPLAUSE]
Vanita Gupta [00:23:07] That's right. A pro civil rights slate.
Harry Litman [00:23:08] And by the way, H.R. 1 is no coincidence. This was actually in the last Congress the first thing that the the newly ascendant majority in the House introduced. All right. So, so quickly now, we've got a couple other tough decisions out there. The Rucho case from this last term, the Supreme Court got the federal courts completely out of the business of gerrymandering. There used to be arguments to be made of the sort that Vanita identified of, you know, if you really analyze, there's there was at least a hope of overturning some of the ridiculous gerrymandered districts. Does everyone have a sense of what a gerrymandering? So, I mean, really, just as even the court said in getting out of the business, we have these ridiculous sort of shapes that were obviously done to erode the one person, one vote principle. There's no doubt about it. That's what they're for. But there's no, seems to be no sort of real path, at least at the federal level. Is there any efforts that people are aware of to try to push back against? Or is that just now, a new fact of the landscape.
Joaquin Castro [00:24:26] Yeah, I mean, the thing that I've advocated for a while is that I think that you have to take redistricting out of the hands of politicians, really Republican or Democrat. And you have to entrust that to an independent commission to then go draw those districts. You know, it exists in California. It exists partly in Ohio. Arizona, it exists in states that are, quote unquote, blue and states that are red. So it doesn't necessarily advantage one party or another. But as long as you have politicians drawing their own districts and parties involved in that, they're going to be skewed like that. And now, as you saw in North Carolina, because of computer technology over the years, you can do it so precisely. You can disenfranchise communities so precisely in a way that was tougher to do four decades ago or three decades ago. It's very pernicious.
Harry Litman [00:25:19] Anyone who's ever worked on these, they're surgical.
Vanita Gupta [00:25:22] It's amazing to me that in this room, when you asked if people know that everyone's like, of course, we know about gerrymandering. But I mean, it's not the most sexy issue in. But yet I do think there's been a real awakening around what the effects of gerrymandering have been in the allocation of power. And it's frankly why we care about the census, because it will be the basis of the next 10 years of redistricting and potential gerrymandering. But the thing that I think is really exciting in the states that the congressman was mentioning, in November of 2018 in the lead up to the midterms, there were a bunch of ballot initiatives and red and blue states around creating these independent commissions. And they passed because people are tired of politicians choosing their voters rather than voters being able to direct their politicians. And this is I think there is a movement afoot around this that I think is really important. We're also seeing a lot of state court led litigation that even though the Supreme Court kind of foreclosed the possibility of having federal courts deal with partisan gerrymandering, there have been some recent decisions at the state court level that have vindicated the notion of unlawful partisan gerrymnadering.
Harry Litman [00:26:26] Yeah. So I think there's a state strategy and that's what it has to be. OK. The final big decision of the terrible three. Good old Citizens United enshrining the First Amendment rights of corporations. Ellen, you know, I know the FEC is very active in general in the area of campaign finance. What's your sense of the overall impact? It's now been with us for many years. How is Citizens United sort of distorting the political landscape and what, if anything, is there to be done?
Ellen Weintraub [00:27:03] Well, you know, it's interesting because it's had a different impact than I think a lot of people thought it would. When it first passed a lot of people were concerned, oh, the big corporations with billions of dollars in profits, they're going to be plowing that money into elections and they're going to basically take over the political landscape. And that didn't really happen in part because big corporations have shareholders, they have boards of directors, they've got customers. They've got a lot of stakeholders that they don't want to annoy. And, you know, they've got people on both sides of virtually every issue. But what has happened is it with Citizens United and its progeny is we've seen the creation of these super PACs where individuals can give millions of dollars. So, you know, we talk about one person, one vote and that we want everybody to be equal. Well, that doesn't apply according to the Supreme Court when it comes to money. In fact, the Supreme Court is held and this goes back to Buckley V Valeo in 1976, that when it comes to money, that leveling the playing field is antithetical to the First Amendment. Think about that. In every other field that we have any kind of competition in the United States, we want a level playing field. And the Supreme Court has said you cannot have a level playing field that is contrary to the Constitution, to have a level playing field in terms of the money that is available to candidates in order to get their message out, because the court says if the only way to do that is to limit somebody in how much money they can raise and spend, and that will limit the messaging that they can do. But if you look at this issue of the goal of all this is to get the most robust political debate and in order to do that -- another way of looking at it and this is, for example, the way they look at it in Canada is that if you allow if you say you cannot have any kind of limits, then that means that one side, if they can raise more money, they can drown out the voices on the other side. And that will undermine the principle of trying to have the most robust debate and getting the best information out to the voters. So there is another way of looking at it. I don't think democracy has crumbled in Canada because they take this other point of view. And what we have seen and if you just look at 2018, and this is just talking about disclosed the money because then there's another whole problem with dark money groups. But of the money we know about, there were in 2018, I think one hundred and twenty six individuals or couples who gave over a million dollars to various political committees. There were 12 or 13 individuals or couples who gave over 10 million dollars. And there was one family that gave over a hundred million dollars. Now, how does that square with the principle of one person, one vote, an equal representation? When people with that kind of resources and there are a number of people at the higher end, you know, billionaires who have very intense ideological views that they are trying to get across and that they want to reshape the country around their ideological vision. They are spending big bucks. They are spending millions of millions of dollars in every election. Where does that leave the rest of us?
Harry Litman [00:30:19] So, Congressman, how's this sort of, you know, lived in a day to day? Would you like to move to Canada?
Joaquin Castro [00:30:23] I like San Antonio. I like Texas.
Harry Litman [00:30:25] How's it lived in a day to day in a day to day campaign, you know, on the on the ground that, you know, how does Citizen's United make your life as a candidate more difficult?
Joaquin Castro [00:30:36] Yeah, I mean, that's actually an interesting question, because I came into politics as a state representative. I got elected when I was 28 years old and I got elected in 2002. So I took office here in the legislature in 2003. And I think that was before you really had these huge super PACs that the Kochs have started and others have started to have. 2010 was when it started, OK? So I kind of existed in a period before that and then obviously after it. And you're right. I mean, we've seen this big money. Part of what's balanced that out some--although I agree we need to defeat Citizens United and take big money out of politics --is that political giving has also become more democratized because of the Internet? Right? Back in 2002, nobody was raising money off of Facebook ads or even hardly off of emails. You know, where you get these political emails and then you donate 10 dollars or 50 dollars or whatever it is to candidates. So that that has been if the Citizens United is kind of the dark story of money and politics, the Internet boom and the democratization of giving, I think has been the bright side. Right? The silver lining in all of that. And it's interesting now that you ask, because I've I've kind of seeing the effects of both of those things.
Harry Litman [00:31:55] Speaking of the Internet, I actually don't know whether people on the stage can speak to this or even who can. But, you know, we have among the sort of horror stories that you read about in preparation for the 2020 election, it's almost out of dystopian science fiction, but the possibility of Internet manipulation, foreign interference to actually reach in and change your votes. And so sow chaos, not even foreign, but but possibly there's there's an assessment by the intelligence community that this didn't happen in 2016. If, you know, if you credit that. But that that it's a real risk going forward.
Ellen Weintraub [00:32:37] Wait, wait, wait, wait. They said they didn't change votes, but there certainly was disinformation.
Harry Litman [00:32:41] Yes. OK. So. That's right. So thank you very much. All right. It's a two part problem. And let's say there's first the real kind of, you know, headline, can you actually reach into the machine? Then then there's a way which you they did and you will going forward manipulate voters and social media. And then, you know, that's volume among the volume ones of Mueller. Do you are you guys aware? Is anyone in this room actually working on that problem? And how do you even go about getting your arms around it?
Vanita Gupta [00:33:15] Well, so I don't. We've been doing a lot of work with Facebook, Google and Twitter around fighting disinformation.
Harry Litman [00:33:20] With them. Like partnering with them?
Vanita Gupta [00:33:22] Yeah, I mean, partnering and pressuring because a lot of what happened in 2016. I mean, Facebook acknowledges that they had been asleep at the switch. They say that they were they were doing through A.I., fighting the bots that were creating these these folks at the bots that were setting up these accounts and getting like 2 followers and then kind of sending these automated messages. But the disinformation around creating fear, negative messages, targeting black voters in particular, and there's been a lot of documentation in the intelligence community has documented that. And so now just two days ago, I was with Sheryl Sandberg and a small crew of civil rights leaders and her team focusing on what is needed for Facebook to set up a real operation to counter disinformation. Not only we've been pushing her in the lead up to the 2020 election, but also on the census, because as Joyce referenced, the citizenship question was designed to cause a lot of fear among not only immigrant communities, but mixed status families and frankly, Americans giving data to the federal government, and so there's a lot of potential for disinformation campaigns to create a lot of fear in these communities and to have people refuse to be counted in the census and not vote. And so this is work for the Leadership Conference that we can do all of the GEO TV work and we're fighting voter suppression. And there's a lot of organizations that are litigating. And we launched a big project called All Voting is Local that's working in eight states to work with local election officials, to do everything from recruiting poll workers and working on addressing broken machines and the like. But this issue around disinformation could get all of us despite all of these efforts. And so we've been really kind of engaged with social media platforms around literally until the 20, until three weeks before the midterm election, Facebook still, despite everything that had happened with Cambridge Analytica and everything else, did not have a voting rights policy on the books. And we got them to set up a war room. But it was two weeks before the election that they did. We trained that war room on what, traditional voter suppression looks like.
Harry Litman [00:35:37] And by war room you mean this would actually be there during the election?
Vanita Gupta [00:35:40] Because they so it was twelve employees at Facebook that were that were working to enforce against disinformation. But now what we said is you need. That needs to be set up 365 days of the year like needs to be set up now because disinformation is prevailing. But then we had this great conversation. They're setting up these war rooms. And two days ago, Nick Clegg from Facebook in the policy leadership, announced that politicians would be exempt from that, violate their rules, would be exempt as part of the newsworthiness exemption from this rule. And this is really problematic because we have officials who shall remain nameless. Well, maybe not the president [LAUGHTER] who is campaigning--
Harry Litman [00:36:25] You didn't say his name.
Vanita Gupta [00:36:26] --using his name, literally using lies as part of a campaign right now around it, who's you know, there was a thing yesterday that an email that he sent out, his campaign, sent out Washington Post, said these contain these following lines, did a fact checking thing. It's been, they poured two million dollars yesterday, a million today. Over millions of people have viewed this now. And the question is, if it is a known if these if these campaigns are sending out known lies, why how are we actually going to not let this loophole that they're creating swallow everything else that we're trying to do with the platforms? And so we need to keep the pressure on. Frankly, I think Congress eventually is going to have to figure out how to regulate these industries in some way, shape or form. I learned the other day that unregulated radio was how Hitler built up the Nazi regime. And if we don't keep our eye on the level of disinformation and propaganda that could take over our democracy, that's how we set up authoritarian regimes.
Harry Litman [00:37:23] I mean, it's it's a great point. I thought of this actually when Lewandowski was testifying and saying, you know, basically, yeah, I lied. So what I don't you know, I don't have to tell the truth. I mean, it's been a casualty of the Trump era. But you would think that the principle. It's all right if you lie to one another or the press, but for a candidate to lie flat out, it ought to be regulable but it's basically not. Right? There's--
Ellen Weintraub [00:37:49] Well, we have rules at the FEC and I've been trying to strengthen them about what kind of information is attached to what you're reading online. Particularly if it's political advertising, then it ought to carry a disclaimer. And the question is, you know, where's the disclaimer? Does have to be right on the face of the ad? Can you link to it? Is that is that good enough? We know that most people don't actually click on the links. Can you bury it in a teeny little icon that people won't really see and so they won't know they have the option of clicking on it? I have thrown out, I've lost track of how many proposals at the FEC to try and address more strongly foreign money that's being spent in our elections as well as to try and get better disclaimer information on online ads. And it just meets a brick wall on the other side of the table. Everything at the FEC has to be done on a bipartisan basis. That's great. If you can get bipartisan buy in for some of this stuff. And it's it's unfortunately a very heavy lift.
Joaquin Castro [00:38:46] You know, another piece of that also is obviously-- I came into the Intelligence Committee at around July of 2016. And then shortly after that, it's when we were confronted with a Russian interference. And I learned back then something that has not been really corrected much, which is that there is no federal law. And at the time, I couldn't find a single state law that may have changed by now. But there's no federal law. And I'll say hardly any state laws that set a minimum baseline of election security or cybersecurity protection for our voting system.
Harry Litman [00:39:17] Right. S.
Joaquin Castro [00:39:18] So there's no standard for--.
Harry Litman [00:39:19] It really is the Wild West out there.
Joaquin Castro [00:39:21] --for county governments that administer elections and the way our government was operating, was that because the federal government doesn't impose any standards on the states, the federal government, the FBI and other departments basically tell the states, "Hey, if we can be helpful in helping you all run through the traps to secure your systems and so forth, then we're available to you." But there are a handful of states, even in 2016, that never consulted with the federal government. So they never came forward. So we don't know how secure their systems were. Also, there was not much follow up, as far as I could tell. After the election by our federal government with the states to figure out whether there was any interference, actual interference. Again, we were relying on local jurisdictions to come forward and say that something happened. So that whole process, I think, really, really, really needs to be tightened up and improved.
Harry Litman [00:40:17] And there is this again, peculiar vulnerability of so much in election law, which is once you're on the other side of it, there's so many ways in other areas of the law you can still try to remedy, but so often you can't do it. All right. So we have this long list. I want to get to H.R. 1, but the two sort of specific problems I wanted to make sure to cover are poll closures. On the one hand, and then the allegations, the widespread allegations that voter fraud is endemic in the country. So let me just, you know, voter fraud, poll closures, discuss. But, you know, do the any any thoughts you have on these two things? And then because then I'd like to be sure we we are able to explain to everybody about the the different provisions in the bill that Vanita mentioned.
Joyce Vance [00:41:07] So let me talk about voter fraud as a former U.S. Attorney, because allegations of voting fraud would often land on my desk. I was in the office as a prosecutor and then as U.S. attorney for twenty five plus years. In those twenty five years, there was only one case of voting fraud that was legitimate and it impacted about 8 votes. So not to, you know, not to laugh at that, but just to say voting fraud is not a system wide problem in American elections. What is a problem is voter suppression. Voter suppression was something that we saw in every election, whether it was post cards that said Democrats vote on Thursday when the election was Tuesday, which is something that we saw in every election, whether it was people being moved off on voter rolls, making it more difficult to vote. You know, Vanita and I spent time on this together. Alabama was was out odf standard as are many states for requirements for registration. And there are so many systematic efforts to make it more difficult for certain people in this country to vote.
Harry Litman [00:42:14] What did you do, because I think every U.S. attorney office did it. I actually don't know if they still are. But didn't you have a regular -- what did you do as U.S. attorney sort of election by election?
Joyce Vance [00:42:23] So, you know, every office in the country, there are ninety four U.S. attorneys offices nationwide, 93 U.S. attorneys. It's your Jeopardy! Trivia. Guam and the Mariana Islands share a U.S. Attorney, but every office has a district election officer and that person is charged with being a central collection point for problems that come up during an election. And in some states, it's a little bit easier because they vote for extended periods of time. If you're in a state like Alabama, where the polls are only open for one day, suppression problems become very acute. And you have to have relationships that let you deal with them in this very tight timeframe. But I think the kicker on all of this is that early in the Trump administration, the president created something that he called the voter the Election Integrity Commission, chaired by a gentleman from Kansas named Kobach, who was sort of infamous, if you're familiar with him, for being one of these people who constantly complain about voting fraud while trying to promote suppression. And the interesting thing about that commission, which was supposed to find instances of voter fraud, was that it came up empty handed and it ultimately had to be shut down. One of the members on that commission who tried to bring real problems to the forefront in a sensible way was an Alabama probate judge who I was used to working with, who ran elections. And the points that he made were very simple. He said, "You know, counties have to run elections and sometimes they're poorly funded and they don't have state of the art equipment that's safe from hacking. So we need to have something the equivalent of of HAVA, the Help America Vote Act, which provided funding. There is, I think, a little bit of funding, but we're not at the levels we should be. He had these very common sense requirements. And so you'll recognize this strategy. The strategy of the commission was to disband and not publicly distribute his recommendations.
Ellen Weintraub [00:44:19] And just to follow up on what Joyce was saying, that her experience in Alabama is not anomalous. One scholar, Justin Levitt, looked at, after the 2014 election, at every election between 2000 and 2014 over a billion votes and found thirty one instances of potentially credibly alleged voter fraud. It's just not it's not happening out there. And there was a case in Kansas, Fish V Kobach, not that long ago, where they trotted out all of their best voter fraud experts. And the judge said that none of -- they were entirely lacking in credibility. All of the evidence and I put that in quotation marks that they claim supported voter fraud, the judge said none of that is credible. What you're what you're bringing forward. I think we really need to demand facts from people who make these claims. Facts are not partisan. Facts are just facts. And if you don't have facts, you shouldn't be saying things.
Harry Litman [00:45:24] I mean, it's like the dragon or unicorn of the voting system with this mythical figure that keeps getting trotted out. OK, on the other hand. What about. I mean, poll closures seem like a funny one. Because everything else we've talked about, gerrymandering, these phony violations, you can sort of see the political overlay. But do we think that the raft of poll closures, you know, how's it working and how how do how or how is it being -- is it a political agenda, as best you can tell? And what what magnitude of the problem is it?
Vanita Gupta [00:46:01] Well, just before I answer that, I think it's important to recognize that just like Justin Levitt had studied, there's been study after study and the Brennan Center recently found that it is more likely that you will get hit by lightning than that you will find an instance of voter fraud The whole concept in all of this has been really a political agenda to to fuel and foment voter suppression laws. And I think it's just important to name that. And the problem. I mean, voting rights has become incredibly weaponized for partisan gain as a civil rights lawyer. It is a deeply dangerous place for us to be, to have the agenda to promote voting in this country, be seen as so hyper partisan. You called me a progressive activist when you opened.
Harry Litman [00:46:50] Did I?
Vanita Gupta [00:46:50] But I'm a civil rights lawyer. You can call me progressive activists, but I will work with folks on the right and the left to actually advance voting.
Harry Litman [00:46:58] Of course.
Vanita Gupta [00:46:58] And the thing about the Voting Rights Act that folks need to know is that the Voting Rights Act in 1965 and then every subsequent time that it was reauthorized by Congress because Congress had to do this repeatedly, it was reauthorized by a Republican president and Republican control of at least one House of Congress. And when the Shelby County decision comes down in 2013, in 2014, members of the House try to reintroduce a restoration bill and not a single Republican member of Congress would co-sponsor it. And that's where we are today. And we have to dig ourselves out to figure out how to get folks, champions that we had, like Congressman Sensenbrenner who had taken this on. That that kind of cohort on the other side is not there to push a bipartisan voting rights agenda. And it is very, very dangerous. And I need to say that because I think it's really important.
Harry Litman [00:47:49] And what could be a more bipartisan principle that underlies that, right?
Vanita Gupta [00:47:52] RiIght. But yeah. And I can -- I know you asked about poll closures and I can--
Joaquin Castro [00:47:55] But If it's not reauthorized, then correct me if I'm wrong, I could be wrong, but then they don't, when they're drawing districts, they don't have to take into consideration minority voting rights or anything. Right?
Vanita Gupta [00:48:06] That's right.
Harry Litman [00:48:07] And the courts can't do anything.
Vanita Gupta [00:48:07] I mean, that is what is terrifying about entering the 2021 redistricting cycle.
Joaquin Castro [00:48:14] When is it up again. Y'all know when it's--.
Vanita Gupta [00:48:15] So the census will take place next year. And then starting in--.
Joyce Vance [00:48:20] Which date though, the Voting Rights Act?
Vanita Gupta [00:48:24] The House will be marking it up in October twenty-third is the date that it's marking it up and it will be up for a vote then subsequently in the next two weeks after that. But we know exactly where it's going to end up once it moves to the Senate. So this is the long haul. And we have to be in it for the long haul. But you were asking about poll closures.
Harry Litman [00:48:44] Yeah. I mean, give us an actual concrete sense of the problem in a state in which it's happening a lot. Are they sort of going through and just closing functional ones and not really know what what what the sort of abuse story?
Vanita Gupta [00:48:56] I'm looking at my phone because I wanted to get the stats right. So we did a report involved a lot of FUYAS--this is part of the problem is it's hard to detect this. But we found one thousand six hundred eighty eight polling place closures between 2012 and 2018, which was almost double the eight hundred and sixty eight closures found when we did the same report in 2016. There's been a lot of closures and since 2016 and in Texas, just so folks know, as I said, it was a mega closer. There have been seven hundred and fifty polling places closed since the Shelby County decision in Texas. Travis County, right here where we are, 67 closures. Thirty two percent of polling places have been closed in in Travis Count.
Harry Litman [00:49:38] So that just means you're you were in that poll and you've just gotta go another three miles to a strange place that you've never voted before.
Vanita Gupta [00:49:45] And sometimes it's a lot farther. So this is the thing, there may be legitimate reasons to close public polling places. So Texas has introduced big mega vote centers. And and so that has been used as justification for closing polling places. The problem is, is this is like a really high number of closures in states that had histories of racial discrimination in voting. And what has been lost is the ability to document what the racial impact is of these systematic closures.
Harry Litman [00:50:19] Again because of the voting rights decision.
Vanita Gupta [00:50:21] Right. Because of the Shelby County decision. We had a crew of Section 5 analysts in the Justice Department that would sit and analyze where different communities lived and down to the census tract data and be able to document what the racial impact would be of closing of poll sites. Native Americans have a huge problem with access to polling places, and we have that's a huge problem that no administration has successfully and properly tackled. But this is what gets lost.
Harry Litman [00:50:53] All right. So, so much doom and gloom. And I wanted to think of some way to, you know, to have at least some kind of maybe in the distant horizon, some some hope for a ray of sunshine So I thought we could at least end by telling people about H.R. 1. What are the main components? You know, what its prospects are. It sounds like we already know it will be -- we expected to be introduced. So this would be a pretty big day. Almost, maybe almost like the Voting Rights Act. Were it actually to pass. What does it consist of? What are its prospects? You know, let's let's talk a little bit about a hopeful scenario.
Joaquin Castro [00:51:41] The part that -- because we passed it a few months ago -- the part that sticks out to me is the dark money part trying to end Citizens United, which I think we need to do as a country.
Ellen Weintraub [00:51:50] Well, I mean, it adresses dark money, but it doesn't end Citizens United because I don't think it can be done by statute. There's a lot of great provisions in H.R. 1 from my perspective, that talk about money and politics. There's the Honest Ads Act component that would extend to the Internet the same kind of rules we have for broadcast ads. There's the DISCLOSE Act, which really would get better disclosure of a lot of the dark money that's out there. There's also in there and I have mixed feelings about this, a whole section on FEC reform. The FEC right now is an evenly divided body. It's supposed to have six commissioners, no more than three from any one political party, takes four votes to do most important things that we would do there. Right now, we only have three commissioners. So that's a big problem because we can't do what we need to do.
Joaquin Castro [00:52:38] Two Republicans resigned, is that right?
Ellen Weintraub [00:52:41] Well well, 1 Democrat and 2 Republicans have resigned over two years and one in the last month and--
Joyce Vance [00:52:52] Ellen, can I just ask asked, do you read anything devious into that? Does that impair the office's ability to act and was it intentional or would that be a misread of that situation? I don't want to put you on the spot.
Harry Litman [00:53:02] But you you did.
Joyce Vance [00:53:02] I guess I sort of did, I'm sorry.
Ellen Weintraub [00:53:02] Definitely it impairs our ability to act. We can't vote on enforcement matters. We can't launch any investigations. We can't issue advisory opinions. We can't issue rule makings. We can't do any of the important things that we need to do. Since my one of my colleagues left about a month ago and I had literally five days notice that that he was leaving. And, you know, we scramble to get as much done as we could in the last five days. But boy, it would have been nice to get a little bit more notice so that we could have tried to get more done and organize better.
Harry Litman [00:53:34] All right. I feel we could go on for several more hours, but we're out of time.
Vanita Gupta [00:53:42] I want to just end on a hopeful note which is to say that despite all of the challenges that we face, things like H.R. 1 really provide a North star for an agenda that I believe should be a pro civil rights Congress and a pro civil rights administration come into office in 2021, needs to be the very first order of business because everything else that we care about rides and falls on our democratic institutions, being healthy, on being able to have a rule of law. And we need to unring our democracy so that it's working for all people. But the thing that's amazing to me is recognizing the amount of activism and energy. These issues used to be considered super wonky and abstract and boring. And the thing is, when you look at the midterm elections and you look at the ballot initiatives that we're on and folks are voting for those independent commissions and they're voting for automatic registration and they're doing it in red and blue states, I think there is a democracy, a pro-democracy movement afoot in this country, maybe because we have been facing one of the biggest grievous crises to our democracy. So we are feeling that much more urgent about these issues. But to me, that gives me so much hope. And we need to continue to build power for these issues and public well to have candidates that are going to represent all of us in Congress.
Ellen Weintraub [00:55:01] And I want to follow up on that in Michigan. There was there's a new by referendum, they have this new independent redistricting commission because one young woman started a post on Facebook and started to gather other people who were interested in the same issue. It started with one person. So never doubt that one person can have a huge impact in our democracy.
Harry Litman [00:55:25] Okay, Austin. Thank you. Thank you so much to Ellen, Joaquin, Vanita and Joyce and thank you very much, listeners, for tuning in to this special edition of Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple podcasts or wherever they get their podcasts. And please take a moment to rate and review this podcast. You can follow us on Twitter at Talking Feds Pod to find out about future episodes and other Feds related content. And you can also check us out on the web at Talking Feds dot com where we have full episode transcripts. Submit your questions to questions at Talking Feds dot com. Whether it's for Five Words or Fewer or general questions about the inner workings of the legal system for our sidebar segments.
Harry Litman [00:56:25] Thanks very much for tuning in. And don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Jennie Josephson, Dave Moldovan. Anthony Lemos, and Rebecca Lopatin. David Lieberman is our contributing writer, production assistant by Sarah Philipoom. Research by Sam Trachtenberg and transcripts by Matthew Flanagan. And huge thanks to Evan Smith, Jessica Weaver, Michelle Aldridge, Claire Rooey and the rest of the team in the library at the Texas Tribune Festival and the entire crew at the Texas Tribune Festival. For all of their hard work and kindness to us, it's really been a great honor to be invited here and even more fun to be here. Thanks also to the Charles Moore Foundation and Kevin Keim.
Harry Litman [00:57:21] As always, thanks to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time.
