Jill Wine-Banks [00:00:00]: I'm Jill Wine-Banks, here today for a special two-part series of Talking Feds with the Sisters in Law, Joyce Vance and Barbara McQuade. We are recording this week to commemorate the 100th anniversary of the 19th amendment giving women the right to vote. And we'll be talking with very special guests about voting rights.
Today, in Part 1 of the podcast, we will be joined by Vanita Gupta, an American civil rights attorney. She is the president and Chief Executive Officer of the Leadership Conference of Civil and Human Rights and is very involved in protecting our voting rights. We also are joined by Pam Carlin, who is also an American lawyer and professor of law at Stanford law school.
She is a leading legal scholar on voting rights and the political process. She served as the Deputy Attorney General for voting rights in the Department of Justice from 2014 to 2015. And next week, we’ll follow up with a conversation with Sherilyn Eiffel, a lawyer and President and Director Counsel of the NAACP legal defense fund.
So I'd like to start today by asking Barbara and Joyce for your views of the 19th amendment. Joyce, let’s start with you.
Joyce Vance [00:01:14]: You know, I've always found it a little bit interesting that we talk about giving women the right to vote.
When in fact, we actually had to affirmatively seize it for ourselves. It was these all-male legislatures in many cases that voted to, quote unquote, give it to us. But women worked so hard behind the scenes to get the right to vote. And I was part of the Alabama bar associations task force on the 19th amendment.
And I was struck by the fact that this vote came down to the ballot of one young legislator in Tennessee, the youngest member of the Tennessee legislature, a 24 year old, who was going to vote against adopting the 19th amendment. But he received a letter from his mom the morning of the vote. And it said, ‘Dear son, hurrah and vote for suffrage.’
And so he did, and that was actually the linchpin vote in a decided Tennessee house, that ended up giving women the right to vote. But we had, we had to bring that into being ourselves. No one really gave it to us.
Barbara McQuade [00:02:14]: Well, I think it is a great insight, Joyce, you know, um, I am wearing white today to commemorate the 100th anniversary of the 19th amendment.
It is a white tee shirt, but it is white nonetheless, which was the color of the suffragettes. And I think it's so important to remember the sacrifices of the women that came before us. I think it's sometimes easy for me to forget about the fights and the battles that women before us had to endure to give us the rights that we have today.
I know even Jill, I've read your book, the Watergate girl, which is phenomenal. I've told you this, but I've read more books this year than any other year because of COVID and it's the best book I've read this year — in part, of course, because of the insights about Watergate, but it was also really eye opening to me to see all of the sexism that you face just in that 1970s, not that long ago.
And so, there are so many battles yet to be fought. For voting rights and for other rights, to achieve equal justice under law. And so every time we achieve one more milestone, it really is a great thing for our country. So, I think it's important that we recognize and commemorate the 19th amendment. Women didn't always have the right to vote.
It is something we had to fight for, and we need to keep fighting to make sure that we become the more perfect union that the framers promised.
Jill Wine-Banks [00:03:23]: Thank you. Thank you for that. It has been a long, hard fight, and it's sad that we still need the Equal Rights Amendment. It's sad that the Lilly Ledbetter Act was the first act passed in the Obama administration. I know that my husband said, I can't believe that women haven't always had equal pay and yet in my lifetime, women didn't have equal pay and it was not illegal for women to be paid different rates, which is why we still need the Equal Rights Amendment.
And I'm hoping that somehow that can become law as well as we move forward.
But today let's be happy and celebrate the fact that we have the 19th amendment. In today's episode, we'll be talking about how, in the time of COVID, we can do that and especially because we now have a woman Vice Presidential candidate, Kamala Harris, who is also the first black woman to be on a major parties tickets and the first South Asian woman to be on a Vice Presidential candidate.
So, let's get on to talking to our wonderful guests.
Barbara McQuade [00:04:26]: Our first guest is Vanita Gupta. Vanita is the President and CEO of the Leadership Conference on Civil and Human Rights. But we all got to know Vanita in her prior job when she was the head of the civil rights division at the US Department of Justice. Vanita, welcome to Sisters in Law.
Vanita Gupta [00:04:43]: It is so great to be here and so great to be with all my Sisters in Law!
Barbara McQuade [00:04:47]: Thanks. Well, we're really interested Vanita in picking your brain about a topic that you've been doing a lot of work on, and that is voting rights during COVID. How can we best make sure that we are protecting people's right to vote during COVID and what are some of the things we ought to be thinking about?
Vanita Gupta [00:05:03]: Yeah, it's a really important question. Um, you know, in March, States started to postpone their primaries as COVID was really arriving on the United States shores. And we saw Louisiana and a slew of States postpone these primaries, and it was a wake up call for states to think about what they needed to do to be prepared come the November election. There's been a real push from the civil rights community to make sure that States have expanded voting by mail, because obviously a lot of people are afraid of going into polling places and the importance of vote by mail with the proper guardrails is really essential.
You need voting by mail where voters have prepaid postage so you avoid any kind of potential for a poll tax that prevents voters from exercising their right to vote. You need voters to be able to send their ballots. If they're postmarked on or by election day, they should be counted, and you want there to be secure drop boxes.
And then you want to make sure that you've got expanded in-person early voting because for a lot of communities, they are not comfortable voting by mail, or they may not, like Native American communities, have access to US postal services. You need to make sure that you're still preserving in-person voting, but you need expanded early in-person voting.
And that requires recruiting poll workers, and we can talk about that a little bit more. And then you need extended online voter registration. This is an unprecedented election, in the middle of a global pandemic, and we've got to be able to make sure that States have the rules in place.
We have to remember our democracy has been one where we have been able to have elections during the civil war, during the great depression, during the Spanish flu, this country knows how to do it with adequate preparation and Congress needs to be able to provide the funds to support the states in making these changes.
Joyce Vance [00:06:48]: Vanita, it seems like you just said the magic words there — “with key preparation.” Are you seeing key preparation right now? What are your concerns as we head into November, and maybe talk a little bit about what you think needs to happen in the forthcoming COVID legislation in order to protect the vote.
Vanita Gupta [00:07:07]: So I think a lot of States have been making changes and that's been really crucial, and have been kind of adopting these rules changes for November, but not enough. And I am really concerned that we still have states that are creating and imposing harsh restrictions, including in your state, Joyce, and at the state of Alabama, where they're requiring a witness for absenteeism ballot applications at a time where, you know, we're all being told to social distance, and these kinds of barriers are going to be impediments for people to be able to vote by mail.
So we're still seeing a lot of States that haven't made the necessary changes. We're pushing, there's a lot of movement to make that happen. But the next COVID package really matters. There was $400 million in the first CARES Act to support States making these changes, every state in the union actually asked for that money from the Election Assistance Commission, which is how the money was going out.
But I'm really worried as you all are and have been about the politicization of all of this. We're in a situation in this country that is at heightened polarization and division. And unfortunately we've had our president really attack this very legitimate voting method of voting by mail. What I'm gratified to see is that Secretaries of States around the country are resisting that politicization and trying to make the changes, but the next COVID package needs to have, uh, the additional $3.6 billion.
That number comes from an extensive study that was done by the Brennan Center. States need money for PPE for poll workers, they need money for ballots security and ballot counting devices.
There's a whole slew of things that States need the money for, and right now the COVID package negotiations seem to be at an impasse. And so the question is, is the money going to come? And is it gonna come soon enough for States to be able to use it, to prepare for all of the changes that need financial support.
Jill Wine-Banks [00:09:08]: Vanita, how soon do the States need the money? The election is less than 90 days away. It seems to me that for them to implement anything that would be meaningful means they have to have it probably yesterday.
Vanita Gupta [00:09:23]: Yes.
Jill Wine-Banks [00:09:24]: Is there any room for wiggle room on this or do they need it right away?
Vanita Gupta [00:09:28]: I mean, the reality is when you talk to Secretaries of States, they say that they can put the money to use immediately. The HEROES Act, which the House passed over 10 weeks ago, contained this money and this funding, the Senate has not moved on any of this in the many weeks since.
But States are saying that they could use the money quite quickly and put it to work. A lot of the money that was in the HEROES Act, I think 50% was going directly to counties, which would expedite the process. But I will tell you Jill, that the States needed the money yesterday. We were all raising the alarm, and I was doing panels with Republican and Democratic Secretaries of States back in June about the fact that they needed these funds to help support the changes that they're making.
Now, the concern is, will the COVID package negotiations actually even happen this month? I just learned, but maybe some of you know more, that Mark Meadows is on vacation now with his wife. And that suggests that these negotiations now have been stymied and that there's this notion that the executive orders that the president put in place last weekend somehow are sufficient. They are by no means sufficient. And they contained zero allocations for the elections.
And then of course, we should talk about the US Postal Service, which is also a very key part of both our economic and democratic infrastructure. Especially amid an election where so many more people, in many States the majority of voters, are going to be voting by mail and rely on the functioning of the US Postal Service.
Barbara McQuade [00:11:01]: Vanita, What's up with that? Why do you think President Trump seems to be determined to gut the postal service, knowing that that could wreak havoc on the election? Doesn't that hurt Republican voters just as much as other voters? I don't really get it. What do you think's going on there?
Vanita Gupta [00:11:15]: Well, we all saw the tweet last week where the President suddenly reversed course after weeks attacking voting by mail, saying the election is going to be rigged, in my mind all of those tweets were really about trying to sow the seeds for delegitimizing an election that he could lose. But last week, suddenly he reversed course and said, ‘well, well actually though in the state of Florida voting by mail is going to work’ and literally acknowledged blatantly the politicization by saying it's because it'll work in Florida because Florida has a Republican governor.
That's not really how these things work. The same voting by mail system that exists in Florida exists in other States. And so, look, the President has really unfortunately politicized all of this. And the US Postal Service has fallen prey to it. There's no way to understand why the President put in place a donor with no real experience in anything related to the US Postal Service, who is now just under 90 days before the election making cuts that postal workers and leaders are very clearly crying out in alarm and saying these are causing significant delays in the mail.
And it's really the COVID negotiations contains relief for the US Postal Service, which has been kind of a fiscal crisis for quite some time, really because of how it is structured. And we don't need to get into too many of these details, but it means that it's that much more incumbent, so long as we don't know when the US Postal Service could get this financial support, that States actually change the rules to make sure that ballots that are postmarked on or by election day are counted. I've been hearing folks yesterday on TV from Trump's campaign saying, well, that means that people are going to be able to vote after election day and ballots will be collected.
No, that's illegal. What states are doing, and every single state needs to do this, is to say that they will count any ballot that is postmarked on or by election day. So we have to resist this, like, fake narrative that is being ginned up, that if you allow that to happen, that means that people will be able to vote after election day.
The postmark has to be honored by, and States have done this, and done it for years with no problem. And every state in the union needs to do this.
Joyce Vance [00:13:36]: Vanita, I fear that a lot of the damage that's being done with the post office is that now that this narrative is out there about delays with the post office, people actually won't apply for absentee ballots.
I hear a lot of people telling me that they're worried about whether they'll get the ballot, they're worried about whether they'll be able to get it back in time. I hear what you're saying about any ballot that's mailed on election day should count, but in Alabama, your ballot has to be received five days before the election in order for it to count.
So what Trump is doing effectively actively again is, is sewing this narrative of confusion that could discourage people from voting. How do we fight back, given that that's already out there?
Vanita Gupta [00:14:20]: Well I think this is exactly right. And I didn't fully answer Barb's question, which is the irony here is that there's evidence that these kinds of tweets and posts by the President are actually dissuading Republican voters in rural communities from voting and. My guess is that with the reversal, of course, with regards to his views on Florida's voting by mail, came from Governor DeSantis, probably telling him it's going to be hurting him politically.
But I think on this question, Joyce of what you're talking about, this is why voter education right now is so incredibly important. The rules are changing and it is, it's a lot for voters to absorb, to understand what mechanisms are going to be available, how to apply for absentee ballots. In a state like New York in 2016, it was around 5% of voters were voting by mail, we're contemplating an election now where 60, 70% of voters could be voting by mail. And people don't know how to apply for the absentee ballot. They don't know where to drop them off, but voter education has to be on steroids. And what's really challenging about doing voter education at this moment is that the rules are still changing in real time.
So, the leadership conference has been doing a lot of advocacy with Facebook around what they are doing, or not doing, to fight voter suppression and give users accurate information in the face of very intentional disinformation campaigns and efforts to suppress the vote by politicians.
And they at our urging created this voter information center that is going to be providing its users in the United States with accurate, real time voter information about how the rules are changing. Secretaries of States are leading campaigns, nonprofit organizations are leading campaigns in every state to educate voters about how they can vote in this November election amid a pandemic. But these are some serious challenges. I'm not going to lie to you and all of you, or in States that are dealing with these things and Joyce with Alabama having the rules that it has, it would be great to hear from you actually for you to lay out.
Cause I think Alabama has got some of the greatest restrictions, and has not made sufficient changes for voting amid this pandemic. We've got a real huge task on our hands and it's why we are deploying every tactic we know to educate voters, influencers, celebrities, local and state elected officials.
The further you get from Washington, the more accurate sometimes the information can be, but you still are in States that where you do have Secretaries of States that are not trying to make it easier. And voter suppression and racial discrimination in voting has just been such a feature in our country, and I am very concerned about officials weaponizing COVID literally to make people sit at home and people forget that actually chilling political participation is one of the most dangerous forms of voter suppression that we have. And the ability to use the fear in this pandemic is really significant. And it's why when there was initially this push to say, every state needs to have voting by mail, and that's going to be the sole answer.
The civil rights community was saying, no, you have to preserve in-person voting and you have to expand it because there are too many communities that just culturally don't vote by mail or are going to continue to be afraid. And these kinds of disinformation campaigns are only going to fuel that. And so it's all gotta be a package to be able to have this work, but we still have a lot of work to do, and we still have to recruit poll workers.
You can't have polling places open or expanded when our typical poll workers are retiree, more vulnerable to the effects of COVID. And so now there's also a massive push we've been involved in Power the Polls to get younger folks to sign up to be poll workers, get them trained, get them hooked up with local and state election officials so they can be deployed in the weeks of, because this is really an election season, not an election day.
Jill Wine-Banks [00:18:13]: Vanita. I'm so glad you mentioned that last point about recruiting some of the younger people, because one of the most common questions I get on my social media is, what can I as a citizen do? How can I participate?
And is there any other things that people can actually do right now to help make sure that they can safely vote in this time of COVID?
Vanita Gupta [00:18:34]: You can sign up to be a poll worker, go to powerthepolls.org. It's really important that your senators in particular, that you are engaging your senators and telling them how important it is that they fund the US Postal Service, that they put the elections money in the next COVID package, and that you expect a COVID package when people are literally dying in our communities without relief, and are suffering from joblessness. But a third thing, and I think this is really important, is all of us need to be voting early. Whether we decide to do it by absentee ballot, or whether we decide to do it in States that have early voting, vote as early as you can. Apply for your ballot.
If you're doing this by absentee, figure it out, go to vote.org and find out how you can get an absentee ballot in your state. It's got it broken down for every state, apply for that ballot early. Fill out the application, figure out on vote.org, where the drop off, either is a secure drop off boxes are, or how you send it back by mail. And get that done that we relieve the pressure on November 3rd. And it is an uncomfortable thing because we are always trying to, you know, we're in a breaking news media culture. But it will be a mistake to call the election results based on in-person voting or to overestimate the in-person voting or the exit polls, because this election will be unlike any other and much higher percentages of people will be voting by mail.
And so the earlier we can all vote, the less pressure it puts on the system at the back end. And I think it'll actually enable election officials to do their job. And that's just incumbent on each of us. But I will say you've got to also check your registration right now. Don't wait until two weeks before when it may be too late to figure all of this out.
And then help educate your friends and family about these rules. We are all emissaries in our communities for these things. And it's really important that we are educated and educating our kind of nearest and dearest so that we can bring them along in this process.
Jill Wine-Banks [00:20:30]: I just have one follow-up to that, which is this issue of the announcement that the States are going to have to pay 55 cents to mail the ballots, which have always been 20 cents, a special rate. Is there something that Congress can do? Is there something that people can do, or is this something that Donald Trump is going to get away with in terms of suppressing the vote by requiring that?
Vanita Gupta [00:20:53]: So, I think this is absolutely outrageous. So I know that Senator Schumer and the Democratic leadership that is involved in the negotiations has been really pushing back on the States right now — red and blue — are strapped for cash to say the very least. And to demand that private citizens, US citizens have to basically pay the cost for congressional inaction on supporting the US Postal Service.
Let me just repeat that the amount is like 25 Billion dollars. It's almost a rounding error in a certain way for the trillions of dollars that are going out to States, and that are kind of the basis for these COVID relief packages. Congress needs to do its job and actually fund the US Postal Service.
So that is an area where there's a lot of pressure right now being put on whether or not the Senate will successfully do this remains to be seen. It's why we need to put maximum pressure on it right now. But to think that private citizens will need to now defray these kinds of costs is completely absurd.
And yet it is a contingency that people are thinking about. I think in all likelihood there will be litigation on this issue as well.
Barbara McQuade [00:22:05]: Vanita Gupta, thank you for joining us on Sisters in Law. You really point out that even though we've had the right for women to vote for a hundred years, we still need to fight for it every day, and we so appreciate all the work you're doing to fight for our right to vote. Thanks for being with us.
Vanita Gupta [00:22:19]: Thank you. Thanks for having me.
Joyce Vance [00:22:22]: It's a real honor to get to introduce to our listeners, Stanford law professor Pam Karlan, who you may remember from the House hearings on impeachment. Pam once told a group of law students that, although she has some regrets in life, “I don't ever regret being kind of snarky.” Her candor and directness, her commitment to speaking truth to power are simply legendary.
Pam is also one of the nation's leading experts on voting and the political process, among many other accomplishments. She's a former Deputy Assistant Attorney General for DOJ civil rights division and a Supreme Court Law Clerk to Justice Blackman. Pam, thanks for joining us and welcome to the podcast. We've got a lot of questions for you.
Pam Karlan [00:23:03]: Thanks so much for having me. It's just, it's great to be back with you and with Barb. And obviously Jill, I was like a fan of when I was small, I hoped to grow up to be Jill.
Joyce Vance [00:23:15]: This feels a little bit like old times at DOJ, talking about voting. So I'll start with a really basic question for you.
The President keeps insisting that voting by mail, even though the military has done it for years, and that the method of delivery has worked really well, is rife with fraud and he seems to insist that somehow voting by mail is different from absentee voting. Is there really a fraud problem here? Is there any truth to what he's saying?
Pam Karlan [00:23:41]: No, not really. People have been voting by mail since the civil war. I mean, the origins of voting by mail in the United States were that Lincoln did not want to have to bring the troops home from the field in 1864, because that would mean a risk of losing the civil war. And we've voted by mail since then in large numbers, I mean, this will be the largest vote by mail election in American history because so many people because of COVID, don't want to go to the polls in person. But there's no reason to think that there will be serious fraud.
Barbara McQuade [00:24:10]: Pam, what do you think though? When Abraham Lincoln was president, we weren't worried about the president holding the postal service hostage. With President Trump, if he is killing off the postal service, can we feel assured that if we put our ballot in the mail, it's actually going to get counted?
Pam Karlan [00:24:23]: Well, that's the real worry. It's not so much that voting by mail is problematic, it's that president Trump is trying to turn it into something problematic by starving the post office of funds, by suggesting to people that voting by mail isn't safe.
I mean, one thing I kind of hope that we can get across to the people who are listening to this is, if you can vote early, vote early. If you can vote in person early, and you're not concerned about it, do that. Because the idea is to get as many people voting as early as possible so that you don't have huge bottlenecks on election day itself.
Jill Wine-Banks [00:24:58]: Pam, given your background at the Department of Justice and the voting emphasis, is there anything that someone other than the Department of Justice, who is trying to undermine the election, some other organizations, some other entity that they could do in terms of litigation to protect the right of voters, to get their votes cast?
Pam Karlan [00:25:18]: I mean there's, there's litigation going on all over the country. There’s probably a hundred lawsuits right now, for everything ranging from challenges in some States to, in Joyce’s state of Alabama, the rule has always been, you have to get your absentee ballot notarized, which means you can't vote from home by yourself.
And so there's litigation going on over that, there's litigation going on to ensure that signature matching is done correctly, because one of the things that happens when you vote by mail is you have to sign, in most States, the outer envelope. So your vote is in an anonymous inner envelope, but you have to sign the outer envelope.
Sometimes people don't do that. Some states are really good about contacting voters on that, others aren't, and there's litigation going on, challenging the attempt in Florida to prevent the recently re-enfranchised former offenders from having the ability to vote. There's litigation in Texas over Texas's refusal to provide absentee ballots, to provide vote by mail ballots, to people under the age of 65, unless they meet a very narrow set of criteria.
So, there's litigation going on all over the country. It's being brought by nonprofit, non partisan groups, like the NAACP Legal Defense Fund, or MALDEF, or the Campaign Legal Center, it's being brought by the political parties. When you see a case that's ostensibly about voting rights and the title of the case has Republican national committee against democratic national committee.
You know, that this is a kind of a full employment act for lawyers.
Joyce Vance [00:26:43]: You know, Pam, I think there's so much confusion about how this is going to work largely because we don't really have one national election. We've really got 50 States and the military and some territories conducting elections under different rules.
But given this really bizarre intersection of the COVID pandemic, With the election, what should States be doing to protect the right to vote? What would it look like if we were a country where our elected officials were fully engaged in guaranteeing the right to vote in this moment?
Pam Karlan [00:27:14]: So there are a bunch of States where the elected officials, and this is true of both democratic and Republican officials, are committed to making sure that everybody has the right to vote. And so, for example, in California, where I live the Secretary of State is mailing ballots to every registered voter at their registration address. And you have the option of mailing that ballot back. But by now you have the option of dropping it off at various government office buildings. You have the ability to show up on election day at the polls and turn it in.
And if you make a mistake, you can go and get another ballot. So that's one way of doing things. A second thing that a number of jurisdictions have done, is they have relaxed the requirements for getting a vote by mail ballot. So, there were some places where you used to need one of a narrow set of excuses, and they've defined that to now include fear of catching COVID.
So, anybody who wants to vote by mail can do it. Early voting has been very powerful in a number places, particularly in some parts of the South with regard to the African American community, they like early voting because you can go and vote and get assistance from your pastor or from community members.
So ‘souls to the polls’ is what it's sometimes referred to as cause you can do early voting on a Sunday. And that also means that the lines are going to be shorter on election day because a lot of people will have voted before then. States are making all kinds of efforts to make sure that they can get poll workers on election day.
Because one of the things you probably have noticed, if you've voted in person recently, is poll workers tend to be older Americans. And those are folks who are at particular risk. So, there are places that are, for example, recruiting young people to be poll workers, and learning how to sanitize polls, making sure that the poll workers have PPE so that they don't get it. Nobody used to think that you had to disinfect a voting machine between every voter, but now you really do have to do that stuff.
I know Secretaries of State have been meeting on these things, county election officials have been meeting on them, so there's a lot that can be done. A lot of it requires money though. And that's one of the things that is really a problem is Congress has kind of been starving the States of money at a time when they really need funds to ensure that we get an election that works.
Barbara McQuade [00:29:22]: Well, you have to wonder why is it that people want to make it harder and not easier to vote? You know, we were at the Justice Department together when the Supreme Court decided the Shelby County v. Holder case.
And maybe you could talk about that a little bit, but it seems like ever since then, we've seen all of these efforts in States to have ID laws and gerrymandering and other kinds of things that are making it harder for people to vote.
Pam Karlan [00:29:43]: Yeah. Well, you know, when you say you got to wonder why, President Trump kind of told you why he said, if everybody in the country voted, the Republicans would never win another election.
And so there are two ways of winning an election. One is to get your people out, and the other is to prevent people who are unlikely to vote for you to show up at the polls. My view is right now in large parts of the country, the Republican party thinks it will not win an election if every eligible voter can vote.
So you try to make sure that they don't, and get rid of early voting. You get rid of same day registration. You have ID laws and, it's not just that they’re ID laws, they’re ID laws where they pick. In some of these States, they pick the kinds of IDs you can use based on which ones they think Democrats have and which one's Republicans have.
So, in Texas, the legislature passed a law where, you know, and you'll remember this cause we were at DOJ, when DOJ challenged it, they passed a law that said you couldn't use your student ID from the University of Texas. You couldn't use your government ID as a city worker in Houston, but you could use your concealed carry permit, where's that coming from?
So, you don't have to wonder, you have to be appalled, right?
Jill Wine-Banks [00:30:47]: Why aren't Republicans outraged by this as much as Democrats? I mean, it's so blatantly apparent that this is a political action to prevent Democrats from casting their ballots, it's targeting poor and minority communities in terms of removing polling places and mailboxes. It's removing mailboxes in blue districts, even in red states and blue states, and not in the red states. So why hasn't any Republican said, this is democracy's finest moment in terms of our right to vote. What can we do to get Republicans to join the fight, to protect voting in less than 80 days now?
Pam Karlan [00:31:27]: So, the two things going on there Jill, one is you gotta separate like the average person out there on the street from the political folks who are in control of the purse strings and the election. So, I'll give you one example of that, that I find incredibly powerful. 65% of voters in Florida voted to re-enfranchise ex-offenders.
And if you just look at the number of Democrats and Republicans in Florida, that means like 35 or 40% of Republican voters voted to re-enfranchise people once they have completed their sentence. And then the Florida legislature, which is controlled by Republicans, tries to make it really, really, really difficult for those ex-offenders to register and cast a ballot. And the Florida government, which is controlled by Republicans, basically says, we won't be able to tell these people until 2026 whether they're eligible to vote or not. Right, so they're gonna lose their right to vote for six years, even though Republican people on the street supported their right to vote.
So, the first thing is to kind of separate that out. The second thing is you recognize that people's understanding comes from the media they watch. And so if you watch the President and Fox news and they just keep screaming fraud, fraud, fraud, you get worried about fraud and you don't think about the importance of every citizen should have the right to cast a ballot and have that ballot counted.
I'm not sure that it's really a Republican democratic thing in the electorate as a whole, lots of Republican voters have been voting, especially older Republican voters have been voting by mail for a decade now. So it's not like they vote by mail, but they've got a President who's telling them every day that the election is going to be stolen, and who is simultaneously trying to steal the election in various ways. And, we're just a very divided country right now.
Jill Wine-Banks [00:33:17]: We are. And hopefully we can get the message out to Republican voters that their vote is being taken away too, that democracy is suffering from it and that they must hold their government accountable to this, their representatives, their congressmen, their local, state officials, all of them.
Pam Karlan [00:33:34]: And when you start with the post office, you're not just starving people's ability to vote, you're starving their ability to get their medications, you're starving their ability to get letters from their loved ones while they're in COVID and everything. And you would think people would recognize that the post office is not just for Democrats, the post office is for everybody.
Joyce Vance [00:33:54]: Pam, we've talked a lot about mail-in voting and why it makes sense, but even with that enhanced opportunity to vote by mail, and leaving aside the post office controversy for a minute, a lot of people still want to vote in person. Can you explain why that is and why it's important for us to maintain both in-person and mail-in opportunities to vote?
Pam Karlan [00:34:14]: Sure. So, some people want to vote in person because they actually need assistance to vote. Either they are limited English proficiency, or they have a physical disability, or they have concerns about whether their vote will actually get counted. So those folks, they need to vote in person. In some States which have same day registration, some people aren't registered.
And you can't vote by mail if you're not already registered, but you can go on election day, register, and cast a ballot. And so some people do it for that reason. There's a tradition in some parts of the black community in the South where they're just worried. They want to see their vote go into the ballot box.
And this gives them that assurance. And you know, California has long been a no excuse, absentee voting state. And lots of people here vote obviously by mail. I like to vote in person because there's just something powerful about going and standing in a line, one hopes for not too long, and being part of a kind of citizenry that's getting together on this one day.
It's not that I think we should be running our elections completely by mail, although it's perfectly fine to do that. I mean, Colorado has done that for awhile, Oregon, Washington, Utah do that. But people should have options, make it as easy for people to vote in a way that they're comfortable with.
Joyce Vance [00:35:34]: Pam, I feel a lot the same way about voting. I've actually dragged a little bit applying for my absentee ballot. I will use Alabama's new, no excuse absentee voting provision to vote this year. But I'm grieving that loss of full participation in this tradition where my neighbors and I will line up when the polling place opens, we go in, we vote, we get the sticker and it's a proud moment for me.
And I think at the risk of sounding a little bit sappy and a little bit sentimental, I'll just say that I hope something that comes out of this is that people really do appreciate that we have the right to vote in this country. That it's not a privilege, it's a right. And that any elected officials that are working to keep us from voting are really not worthy of the votes that we're going to cast this fall.
Jill Wine-Banks [00:36:22]: And I'd add to that, Joyce, that it's not just a privilege and a right. It is a responsibility. That's what democracy depends on. But Pam, I also wanted to go back to something you said, which was about some of the hurdles and why people want to vote in person.
It seems to me that there are workarounds, there are hacks for every one of the problems you raise so that someone with a physical disability or with limited English, for example, can get help at home. No one is preventing that. So if you need a translator, you could get someone to come in and it's certainly as safe to have one person masked In your home, helping you as it would be to have someone at the polling place where there are other people.
Is there anything illegal about solving it that way, rather than forcing people who need assistance to go to a polling place where it may be dangerous?
Pam Karlan [00:37:11]: No, the Federal Voting Rights Act allows you to have assistance from any person you want, and they can go into the voting booth with you even, except for a representative of your employer or your union. So, otherwise, general volunteers, poll workers; States have, there've been a bunch of States which have for a while, for example, done curbside voting for people with disabilities so they don't have to come into the polling place.
So that can, that can be an option. There are all sorts of websites, a good Secretary of State's website or a good County election officials website will tell people how they can get assistance. Some of the states that have gone to complete vote by mail have come up with ways of assisting people, for example, who are in long-term care facilities and the like. So there, there are obviously work arounds for having to go and stand in line at the polls. And, you know, even just a little thing, like allowing people to pick a time. And make essentially a reservation to go and vote would make the lines less long. Right? If you knew that you only had to stand in line for a half hour, if you signed up to vote at 6:00 PM or vote at 3:00 PM or the like. So it's not that it's not that we can't solve this problem.
I mean, You know, we put people on the moon. We got rid of smallpox. This is not rocket science like the first, or medical science like the second, but it takes, I mean, this goes back to Joyce’s point. It takes political will on the part of government officials to do this. And it takes political will on our part to show up and vote, even if it means standing in line, even if it means making sure weeks in front of the election that you request an absentee ballot.
Barbara McQuade [00:38:44]: Like all of you, I love showing up on election day among my neighbors and casting my vote in person. But this year I'm not doing it because I want to free up space for those who need to go to the polls, I'm getting an absentee ballot but Pam, I'm interested in a different concern, and that is even though it is Congress who sets election day, President Trump never ceases to shock me. And I wonder if he doesn't have some trick up his sleeve to postpone the election in light of COVID-19.
Pam Karlan [00:39:10]: He actually doesn't have the power to postpone the election.
Barbara McQuade [00:39:13]: Uh, that hasn't stopped him before.
Pam Karlan [00:39:14]: I know. I mean, this goes back to something Joyce was saying earlier, we have this incredibly decentralized system. It's not really even just 50 elections. It's probably closer to like several thousand elections because in most States, a County election officials are actually running the election.
There are all sorts of things I'm worried about with this election. I don't think that postponing the election will work for a couple of reasons. One is a huge number of people already have voted by election day, precisely because they're voting by mail or they're doing early voting.
So then it's not as if there's just one day and you only have to postpone eight hours. You'd have to postpone an awful lot of stuff. And I think that the political backlash to that would be so huge that I find it hard to, you know, nothing's impossible, but I find it hard to imagine that we're not going to have the election.
And the other thing to keep in mind is whether we have the election or not, it's absolutely clear under the constitution that at noon on January 20th, this presidential term ends. And unless he has won a majority in the electoral college, he has to leave office then.
Barbara McQuade [00:40:22]: Yeah. And then who do you think becomes President? Because I know we hear a lot of people say Nancy Pelosi, but if there's no election, she doesn't get reelected either.
Pam Karlan [00:40:29]: Well, the interesting question is when you say, ‘if there's no election’, that depends on each Secretary of State and my guess for what it's worth is that there will be an election in California and people will be certified as having won that election in California, regardless of what happens in the White House.
Barbara McQuade [00:40:48]: So, Nancy Pelosi will be the speaker, and maybe that is the specter that keeps President Trump from even exploring this idea.
Pam Karlan [00:40:55]: Well, she’ll be the speaker if a majority of the people who are sworn into the House of Representatives on January 3rd are Democrats. Right now she's the speaker, she'll be the speaker if the Democrats control the House of Representatives.
Jill Wine-Banks [00:41:08]: Well, you've just given me great hope because it seems obvious that the County clerks in all the blue areas will go ahead with the election. And if any Republicans decide to postpone the election, then you'll have a lot more blue votes. We would take the House and the Senate, because the only votes cast are going to be the blue areas.
Pam Karlan [00:41:29]: But then there's this weird complication, which is the elections are run at the County level. But in most States, the Secretary of State or somebody like that signs the election certificates.
So you've got some States. I mean, Barb is in one of these States, Michigan, where you've got a Democratic governor, but the Republicans still control the legislature. I'm working on a book review right now, this book by Lawrence Douglas called Will He Go, which is about like all the different disastrous scenarios you kind of have.
And then the question of what happens. It's a kind of doomsday book, and then of course there've been like 40 more doomsday scenarios since the book was written. If you have a complete and utter election meltdown, it's a little hard to know exactly what happens because you could have, for example, some States where it's pretty clear that a majority of the voters voted for Joe Biden, but the state legislature then decides, ‘we don't think the election worked fairly, so we're going to appoint the electors and we're going to appoint the electors that are pledged to Donald Trump.’
Well, what happens then? I try to retain my semi-optimism. There's a margin of error in every election, and what you really want is for the margin of error to be less than the margin of victory.
Jill Wine-Banks [00:42:34]: Doesn't all of this confusion and these possible scenarios play into the President's narrative that people can't trust the outcome of the election, that the election could be stolen from him. That there could be fraud. And how do we help the American people retain confidence in the process? Does the process deserve our confidence?
And if so, how do we help ourselves, as a country, move forward with confidence after what is certain to be a really hotly contested election?
Pam Karlan [00:43:04]: That is a tough question to answer Joyce, because we've never had a Presidential candidate before for a major party who basically says before the election, ‘I'm not going to accept the outcome of this election, unless I'm the winner.
And even then, I'm not going to accept that many people didn't vote for me.’ Right. I mean, even in the 2016 election, he won't admit something which is demonstrably true, which is more Americans voted for Hillary Clinton than voted for him. And he won the election because we use the electoral college, but he can't admit even that he didn't win the popular vote.
And he is not going to admit that he lost this time around. So how we get beyond this moment in talking about voting is a really important question. And it's a question that I think, you know, some of it's going to be answered by the election itself. If he loses hugely, he, and some of his supporters will claim it's been fraudulent, but most people will accept the result. If it's a very close election, lots of people will think that whoever won, won unfairly. And if he wins the election, lots of people will think he won the election because he suppressed the vote. I mean, it's a kind of irony that because he's done so much to challenge the integrity of the election, people are not going to think he won the election fair and square, regardless of what happens.
Jill Wine-Banks [00:44:26]: Does history offer us any guidance about how as a country we handled this situation. Or is this just totally unprecedented in our country's history?
Pam Karlan [00:44:35]: So there have been really close elections where there was a real question about fraud. I mean, Jill is in Chicago, right, and, in 1960, there's a real question whether John F. Kennedy won Illinois fair and square. Richard Nixon, graciously said, I'm not going to challenge the results of the election. In 2000, there was a real question of who won in Florida, and even after the national research council did hand recounting of the ballots it depended on what rule you used, who was going to win that election or not. But after the Supreme Court spoke and Florida certified it’s electoral votes for George Bush, Al Gore said, ‘I'm going to accept the decision of the Supreme Court.’ So, the last time we had an election where there wasn't acceptance was the election of 1876, where there was huge amounts of violence.
This was the election at the very end of Reconstruction. There was violence at the polls in Louisiana and in a couple of the other Southern States, we ended up with a commission deciding that Rutherford Hayes rather than Samuel Tilden won, it led to the compromise that ended the first Reconstruction in the South and made necessary the second Reconstruction.
And we're probably going to need a third Reconstruction after that. We've had elections in the past where the outcome has not been clear. And the most recent two in 1960 and 2000, the person who ultimately was declared the loser, accepted that in a way that allowed the country to move forward.
Donald Trump is not going to accept the outcome, it wouldn't matter if he lost every single state. He'll just say it's fraud.
Jill Wine-Banks [00:46:13]: That's an awfully depressing note to close on. So, I hope that after the election is over and we're on the other side, we'll have a chance to get back together with you again, Pam, and do an after-analysis and discuss the fact that the American election system has held, that the institutions have held, and that we're ready to move forward.
But obviously this is a difficult moment in our history and it's not possible to sugarcoat it. So I thank you for being so flat out and so honest with us about this very difficult time we're about to go through.
Pam Karlan [00:46:44]: I'll just end it with something that I think is kind of hopeful maybe, which is, when Congress went back into session, I think this was maybe in 2010 or 2012, the members of the House of Representatives all stood up and they read the entire Constitution piece by piece. And it was first come first serve for all of the sections of the Constitution, except there was one where it wasn't and that was, they let John Lewis read the 13th, the Amendments.
And if you think about what John Lewis faced in his life, and you think about what voting looked like when he was the age of the people who are just going to vote for the first time in this election. It was nothing like where we are today. And so it's important to recognize that voting makes a difference, and people can make a difference by voting.
Jill Wine-Banks [00:47:30]: I think those are words of wisdom for this time. Pam Karlan, thank you so much for being with us on the Sisters in Law episode of the Talking Feds podcast. We really appreciate it.
Pam Karlan [00:47:40]: Oh, thanks for having me.
Jill Wine-Banks [00:47:45]: Thanks so much Pam and Vanita for joining us to commemorate the 100th anniversary of the passage of the 19th Amendment. Voting rights have come a long way in 100 years, but we still have so much work to do. Thanks to my Sisters in Law, Joyce Vance and Barbara McQuade. Stay tuned next week for part 2 of this special series with Sherilyn Eiffel, lawyer and President and Director Consult of the NAACP Legal Defense Fund. In the meantime, please remember to register for your mail in ballot, and vote early. And we’d love it if you’d tweet a photo of yourself voting, with #SistersInLaw. See you next time.
