← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Dozens of Baby Bush v Gores
01:02:31
The new fronts of voting rights battles.
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- [00:02]
A
Hi, and welcome back to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court and the rule of law in America. I'm Dahlia Lithwick and I cover the courts and the law for Slate. There is mourning in America. More than 180,000 COVID 19 deaths in the United States, but almost no masks on the South Lawn. As the Republican National Convention wrapped up at a White House festooned with Trump regalia, the President performed this really quite staggering violation of the Hatch act as a simple act of patriotism. Remember when on this show we used to think about the emoluments clause and the ways that it might matter? Yeah, me too. Oh, also under patriotism, crossing state lines armed with a semiautomatic rifle, bent on defending blue lives. In kenosha, Wisconsin, a 17 year old has been charged with five felonies for murdering two protesters and wounding a third. But in the eyes of some, he is a full fledged rule of law gladiator. Later on in the show, we're going to talk to Slate's own Mark Joseph Stern about the quasi legal defenses that are being offered by the people who believe the Second Amendment encompasses the right to shoot protesters unsettled by the presence of heavily armed militia members in their midst in these waning days of August. The new Supreme Court term is still a month or more away, but there has still been an immense amount of action on consequential and exigent questions around voting, around Covid openings in the various states. The death penalty, immigration, and all of these decisions emanate from the High court on what's known as their shadow docket. So Mark's going to stay with us for a Members Only Slate plus segment to talk about what this shadow docket means and why it really matters. But right now, we want to return to the issue that undergirds all of this everything. Because in order for anything to change, there must be a free and fair election on November. That's why, you may recall, we took so much of our time this past winter and in the early weeks of the pandemic to talk about voting. Because despite the conversation that we had in our election meltdown series with Rick Hassan, we are quickly learning that between COVID 19 internal machinations at the post office, the President's escalating attacks on voting, especially absentee voting, we are staring down the barrel of a November election that could be mired in controversy. This could last for a long time. I worry about the possibility of dozens of little baby Bush v. Gore contests that leave both sides convinced the election was stolen. But we're gonna try to confine all of my panic by having a conversation with two absolutely phenomenal experts who are gonna give us some sense of what's real and what isn't, what's happening, what's happening in the states, what's happening on the larger question of the federal election and what to expect in the coming weeks. So joining us this week are Kristin Clark. She's president and executive director for the Lawyers Committee for Civil Rights Under Law. Kristen, welcome back to the podcast.
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B
Thank you so much for having me.
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A
And Professor Sam Bagenstass. He is the Frank G. Millard professor of Law at the University of Michigan Law School, and he specializes in constitutional and civil rights litigation. From 2009 to 2011, he was a political appointee in the Justice Department, where he served as principal deputy assistant attorney General for Civil Rights number two at the Civil Rights Division. Sam, welcome. Thank you. Thank you for making time.
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C
Oh, thank you. I really enjoy talking to you.
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A
So I guess having just said it's all a dumpster fire, Kristen, I wonder if we can just start with this week's or maybe this month's controversy, which is the Postal Service. We all now know that reforms by the new postmaster general just in the past couple of months have slowed down the mail. Okay. Stipulated. He claims now to be reversing those policies. He says that nothing that is happening, he testified before both the Senate and the House is going to slow the mail and that the post office as currently constituted can amply handle even a big uptick in mail in ballots. Where does the truth lie? Kristen, I know you're involved in a suit, but can you help us understand sort of whether this is a tempest in a teapot or whether there is a genuine existential worry around voting by mail?
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B
This is a huge issue, and we started to pick up on it very early in the primary season by way of our election protection hotline. We were hearing from voters very early in the pandemic who were saying, I'm not quite sure what to do. I requested my absentee ballot election days here, and I don't know what to do. And this was right around the time that Dejoy was settling into the role. And so we started an initiative to kind of figure out what's going wrong at the Postal Service because we knew that this election season is one in which the Postal Service would be playing an outsized role and that timely delivery of mail is going to be absolutely critical to a successful election season. And things kind of reached a fevered pitch about a week and a half ago when we started to really feel the impact of those delays in a stark way when people started complaining about normal first class delivery of mail going from two, three days to over a week. And we started to hear about the changes happening internally, the ban on overtime, hiring freezes, the reshuffling of personnel at the top, the elimination of scanning equipment to process mail en masse, loot collection boxes being ripped out of communities. This is a major issue and probably not an issue that we would have predicted being a challenge that we would have to contend with in the 2020 election cycle at the start of the year. Right. We know that there's voter suppression and we know that the pandemic upended things. But who would have thought that the independent, long standing United States Postal Service would become politicized in the way that it has and very much a centerpiece of the struggle to ensure that people can have voice this season.
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A
Sam, I guess I want to. This is completely ridiculous. I'm going to ask you to explain Donald Trump to us. But President Trump has taken this very unequivocal position that there's a difference somehow between vote by mail and absentee ballots. I guess he says the latter is for busy people who work and that's good and people should do it, especially in Florida. But vote by mail is inherently corrupt. And I guess, is there some difference between those two things? And if not, can you. Again, maybe it's not fair to put this on you, but help us parse what the President's beef is with voting by mail.
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C
Well, you know, of course, anyone who tries to make sense of what the President says is, you know, on hazardous ground. So I appreciate your asking me to do that. I think the sort of Occam's Razor explanation, the clearest, simplest explanation of what Trump is doing is he's saying, look, people like Donald Trump and people who like Donald Trump, well, those are good voters. And so that's absentee voting. Whereas other people, those are bad voters. And so that's vote by mail. Look, we know that when you vote absentee, overwhelming majority of the time you're going to cast your ballot by mail. I mean, vote by mail in many states, including Michigan, really is just a form of absentee balloting. And so, so I think really what' going on here is he's trying to delegitimize voting by the kinds of people who either aren't like him or don't like him and are going to Vote against him. I think part of it, too, is, you know, he's trying to draw a distinction. You know, I think it's giving him a lot of credit to say this, but if I wanted to give him extreme credit, he's trying to draw a distinction between absentee voting, for which you have to have an excuse, and absentee voting, for which you don't. And in a lot of states in the past, the only way to vote absentee was if you had a particularly good reason. A number of states, however, have moved towards saying, look, everyone can vote absentee if they want to, because what we're trying to do is make it easier to vote. It's been a standard line among the Republican Party for decades now that they don't want to make it easier to vote. I mean, I started my career as a lawyer defending the motor voter law, which was about making it easier to register to vote. Passed early in the Clinton administration. It was Republican governors who opposed that. I think in some ways, we focus too much on Trump's buffoonery and weirdness and don't focus on this longstanding history, which I think Trump's statements are a part of.
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A
So, Kristen, I'm not gonna ask you to explain Donald Trump, but I am gonna flag for you. I know you know this. NPR reported that just a phenomenally high number of mail in ballots, I think they counted more than 550,000 were rejected in the presidential primaries alone. And that's, you know, historically high numbers. Those numbers are gonna tick up. I assume, for the November election, there was an early Covid response which was, everybody should vote by mail. Absolutely. Everybody should vote by mail. And then very quickly, we heard that a lot of communities of color are deeply anxious about voting by mail. And I guess when you see these numbers, and I should just note, you know, of course, the ballots that are rejected overwhelmingly come from young voters and minority voters and poorer voters. Can you help us sort of work through this tension of. On the one hand, of course, in a pandemic we saw in Wisconsin, voting by mail makes the most sense, and yet there's huge anxiety around that.
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B
I think it's important to note that vote by mail is not new. This is something that we have been doing routinely in our country for well over a century. There are folks who served in the military during this time Civil War, who voted by mail. In 2016, there are about a dozen and a half states where more than 50% of the electorate voted by mail. So this is nothing new, but it is true that this is A somewhat new method of voting for black voters and voters of color. For black voters in particular, the experience of going and voting in person, whether it's during early voting or on election Day, is a special experience, particularly for black voters who know the history of disenfranchisement efforts that so many communities have struggled with. People want to go. They want to touch that machine. They want to know that their vote indeed will count. But the pandemic has thrown things on its head, and so for this season, it is the case that many people will be navigating absentee voting for the very first time. Lots of voters of color, lots of new voters, lots of student voters who are displaced during the pandemic. And recent experience has shown that, sadly, often voters of color face higher rejection rates when it comes to the processing and handling of of absentee ballots. Georgia is kind of a good case example. Georgia is a state where there are lots of groups on the ground that have actually done some great work educating communities and communities of color about absentee voting. So there's a degree of comfort in Georgia that you may not see in other states. And in the last midterm season, we found something interesting. Gwinnett county was a gross outlier in terms of the high rejection rate at which they were throwing out absentee ballots. And we went in and we looked and rolled up our sleeves and found that they were rejecting ballots because someone put on two digits of the date of birth and not four digits. Or they were rejecting ballots because, in their expert view, the signatures didn't match. And let me just say that signature match verification schemes are total junk science. Election officials are not trained and primed to be confirming and verifying signatures. And even if they had a question, they should be giving voters an opportunity to cure the issue. Notice and opportunity to cure. And so we're doing a lot of work right now. We're in the courts filing lawsuits to deal with some of these unnecessary restrictions that we know can be abused in harmful ways, particularly to disenfranchise black voters and voters of color.
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A
Sam, I guess I want to ask you a version of the same question, which is simply, I know you've been thinking about voting for a long time and how to, as you said, expand the franchise, make sure more folks feel confident in voting. And I'm wondering what, how you sort of correctly message this really fraught moment, which is, you know, as Kristen sort of just said in person, has all these challenges. Polling places are closed, lines are horrific. You know, voter ID rules are changing and confusing There is a cure to that. It's vote by mail. Also, it's under assault, too. I mean, what. How do you thread the needle in terms of convincing folks that this whole project is worth it when even plan B feels like it's not a great plan B?
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C
Yeah, I think this is the fundamental issue, and I think it shows that the folks who have been fighting against expansion of the franchise for decades now, they're very smart, they're very strategic. This is not a matter of just, you know, some unhinged president going off. This is really a well thought out strategy on the part of folks who want to disenfranchise people to make them feel like their vote's not going to count. And, you know, I think you're exactly right. There's a difficult messaging point here because, you know, it doesn't do any good to lie to anybody about how difficult the situation is. People are going to have to vote sooner than they have in the past. People are going to have to if they're not going to vote in person. And there are all sorts of reasons not to vote in person in many places. You know, having to do not just with COVID but also, as Kristen says, with issues about polling places, some of which are exacerbated by Covid, some of which aren't. And so there are going to be reasons why people aren't going to want to vote in person. And for those people, we need to make sure that they get absentee ballots. They need to get them requested as soon as humanly possible. They need to return them as soon as humanly possible. They need to have ways of returning them that are not reliant on the mail. So in particular, dropboxes in many jurisdictions are very effective at this. In my own jurisdiction, there's a 24 hour Dropbox at City Hall. Just walk in there and drop it in. There's a camera on it all the time. So it's very safe, very secure. In other states, in many states, they're putting those up. That can be very important. Satellite locations where you can drop off a ballot, all of those things are important. And the messaging point is to say you need to act early. This is one of those rights that people fought and died for, the right to vote. We know that people take seriously the right to vote. You see people standing in those lines three, four hours at a time in order to exercise their right to vote. And this year, what it's going to take is making sure you're on the ball, even though we're all busy, even though we're all stressed by Covid to actually get the ballot and return it as soon as humanly possible.
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A
Let's return now to our conversation with Professor Sam Bagenstass of the University of Michigan Law School and Kristin Clark, president and executive director for Lawyers Committee for Civil Rights Under Law. I want to ask you, Sam, but maybe Kristin has thoughts on this, too, what it means that Bill Barr, the attorney general, has jumped into this claim that there's something inherently fraudulent about voting by mail, and there's no evidence of that. I think we saw, we've just this week seen that the national security folks say there's no actual coherent claim there. But what does it mean when Bill Barr himself is now seemingly on team, this whole election will be tainted if people vote by mail?
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C
Well, look, Bill Barr has been the most partisan attorney general of my lifetime. I was born when John Mitchell was attorney general. So this gives you a sense of what I'm saying here. Bill Barr is very much an adjunct of the Trump campaign. And so I think you have to read everything he does through that lens. And when he's saying stuff like this, I think it's important that to understand they're laying the groundwork for something that they expect to happen in November. One of the striking things about this election, look, I think there's a substantial chance that Donald Trump wins this election. I think there's a substantial chance that it's a very muddy election and that Donald Trump figures out a way to push things in his direction through the muddiness as well. But what's striking is nobody thinks that Donald Trump is going to win a majority of the votes that are cast in November. There's nobody who says that. So it's all going to come down to whether he can eke out an electoral vote majority by slim wins in a few swing states, including, notably, my own home state of Michigan. And one crucial aspect of the strategy seems to be to get it to be close enough and muddy enough that the Republican Party, the Trump campaign and Bill Barr's Justice Department as an adjunct of the Republican Party in the Trump campaign can claim that any votes that come in later that are counted later for Joe Biden are fraudulent. We know that this is this phenomenon that gets described as the blue shift. We know that typically when you have later counted precincts, those tend to be Democratic precincts. Not surprisingly. They're dense, they're urban, you know, so these are places where you have more Democratic voters. There are also places that are under resourced and so it takes longer to count the votes. This is an issue with, in Detroit, you know, year after year after year. So we know that on election night, it's most likely that the count is going to look more pro Trump than it actually will be once all the votes are counted. And saying that vote by mail is fraudulent or illegitimate is. Is a way to seed the ground in November so that in November they can say, look, let's stop counting the votes. We have a winner. Enough already. And I think it's very important to counteract that message now and understand this is an election where a very large number of people are going to be voting by mail. That means their votes aren't going to be counted right away. It's going to take longer. You can't call the election on election night unless it's overwhelming one direction or another. And so media organizations should resist the temptation to do that.
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A
Kristen, I guess I want to ask you the same question. Sam just said the thing, which is the thing that keeps me up at night, and that is, look, this is the Trump campaign seeding the ground, doing this spade work to. I think Trump has all but said, maybe he has said this can't go past November 3rd. If it goes even one day past November 3rd, it's illegitimate. And I guess, I guess my question to you is partly, what does it mean that he has the Justice Department weighing in on his side with those kinds of claims? And what is the corrective in terms of the litigation that you foresee, if, in fact there is an attempt to say, the networks are calling this on the night of the election and it's over?
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B
I started off my career at the Justice Department, and this is a Justice Department like none other. Just for context, this is a Justice Department that is fighting affirmative action and threatening to sue Yale University. This is a Justice Department that has shut down investigations into police misconduct. There have been virtually no cases on behalf of voters of color brought by the Civil Rights Division. Oddly, the Civil Rights Division was filing amicus briefs in cases challenging Covid restrictions and mask mandates. This is a very odd Justice Department that is really bent on carrying out the president's political objectives. And I think that that's incredibly unfortunate. I think that we should be prepared to see Attorney General Barr abusing the Justice Department as a vehicle to meddle in the election. In the weeks that remain and in the days that go beyond November 3rd, we know that there will be counting of ballots that extends beyond November 3rd. So this idea that we wrap it up on election night is not terribly realistic for the local, county and state elections and congressional races. The counting of absentee ballots will be critical. And some of those ballots may be postmarked in the way that is mandated by state law, but may not come in on Election Day. And so we need to be prepared for an election season where we're working until every voice is heard and every vote counts. And I anticipate that Attorney General Barr will meddle and we're fully prepared to fight back and use the Voting Rights act as a weapon to push back against any attempt for there to be political interference in the process this season.
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A
And, Sam, one of the reasons we wanted to have you on the show is that you are in, as you've said, one of those states that everyone's watching Michigan. Rick Hassan, when he kind of predicted on this show what an election meltdown would look like, the word Detroit cropped up a lot. And even now, just in the last weeks, we're hearing claims of all sorts of irregularity out of Michigan, Detroit voting totals that were really very high numbers off balance in the primary. I wonder if you can talk a little bit about how much irregularity is too much irregularity, what Jocelyn Benson can do just in a few weeks, if anything, to write this or whether this is just a long standing, this is just Groundhog Day. There's always a regularity. And we are again primed to pounce and say everything sucks.
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C
Yeah. You know, so I think it's sort of all of the above. And, you know, thank you for shouting out Jocelyn Benson, who's our terrific secretary of state who was elected in 2018, former voting rights lawyer, former law school dean. And it's terrific to have someone who actually cares about making sure that people can exercise the right to vote in the position of running our election system in the state. I know she's taking this really seriously. We had a primary election a couple of weeks ago in early August. And, you know, in the count of the vote following that primary election, there were some issues with the counting in Detroit, not surprisingly, you know, in part, anytime you have a system that processes a very large number of people, a voting system or anything else, you're going to have little irregularities one way or another. I mean, often one of the, you know, when it fails to balance, it's because there was some, there was, you know, a ballot or two that were spoiled for perfectly appropriate reasons and didn't end up lining up with the register when people signed in. Right. And that's totally innocent. And I think it's very important that we not allow this narrative to spin out that what's going on here is something really nefarious. You know, I think there are also administrative issues that have been revealed here. And I think it's great that we had this primary and that no election result really turned on any of these issues. And so we have an opportunity to say, okay, Jocelyn Benson, Secretary of state's office, let's go in and let's figure out what we can do to provide assistance to make sure that there aren't these problems in the future. We do have, you know, a very large vote, very large vote by mail absentee voting population this year. In part that's because of COVID In part that's because in 2018, the voters in Michigan added to our state constitution a constitutional right to no excuse absentee voting, which means we were going to have a big expansion of vote by mail anyway. That has also meant that the August primary was the first time a lot of jurisdictions were using these new high speed tabulating machines they bought, which are going to be great. But also, you know, there are some hiccups the first time through. So all of this is to say, this is not something I would particularly worry about. It's going to take time. I mean, to me, the biggest concern is we know it's going to take time to count all of these absentee votes. That's going to be true in Detroit, that's going to be true throughout Michigan, that's going to be true throughout the country, and certainly in all the swing states where people are going to be focusing and we have to have the patience to not call the results too soon. It would also be nice if our legislators would help out by allowing certain kinds of actions to take place before election day. So, you know, not counting the ballots that are sent in before election day, but at least opening the envelopes and pre processing them to make the count quicker. That's a fight that's going on in the Michigan legislature right now. Michigan legislature is not moving legislation to do that. But if there are ways to speed up the counting, you know, allocating money to buy more high speed tabulating machines, very important. These make a huge difference. All of this stuff is important. And of course, figuring out what's going on with the post office and responding to it and not taking as gospel when the person who was essentially caught with his hand in the cookie jar messing around with the post office right in advance of the election says, okay, I've stopped now, but we actually, you know, trust but verify. I seem to recall Ronald Reagan saying that. First time in my life I've quoted Ronald Reagan positively. But that's what we need to do here. You know, we can't just trust. We have to verify.
- [29:28]
A
And Kristen, I'm going to ask you to do, having asked Sam to be the Trump translator, I'm going to ask you to do something possibly harder, which is, as we started by saying, there is no one federal election. We have a patchwork of local elections, thousands of precincts, different rules, different elections workers. And that means that there is a possibility that any one of those places becomes the Dade county of the Bush v. Gore 2020. I wonder you can draw a kind of map for us of the sorts of litigation that are happening in the various states right now in sort of to preempt some of that. Some of this is Covid related litigation. Some of it is how do we make voting easier? What do we do about mail in voting? Can you kind of tell us what the several buckets are of the kinds of lawsuits that are being filed around the country?
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B
Yes. So there's a very robust litigation landscape right now, for sure. And I kind of describe it as being on two tracks. You've got affirmative litigation that is about addressing the unnecessary restrictions to absentee voting, getting rid of the excuse categories that are in some states, getting rid of the notary requirement, which is very difficult for people to comply with during the pandemic. Tennessee actually criminalizes the act of distributing absentee ballot applications. So there's this affirmative path that is about making sure that as many people as possible have access to absentee voting. On the other side, you've got defensive litigation. These are the groups like Truth Vote, Judicial Watch, the rnc, that are in the courts filing cases, some of them I deem frivolous, that are about restricting access to absentee ballots. So right now we're battling groups in Pennsylvania that are trying to eliminate the use of drop boxes. We got involved in a lawsuit in Virginia that tried to limit people's ability to get absentee ballots during the primary, and they quietly dismissed that lawsuit, which was without basis. And then many people followed the challenge to Governor Newsom's decision to distribute absentee ballots to registered voters. And we were involved in that suit intervening on behalf of voters of color. And that suit also got quietly withdrawn. So it's almost a game of whack a molecule keeping on top of the nefarious bad actors that are really bent on going to the courts to try and restrict access. But I also think that some of what they're doing is just trying to cause a lot of chaos and confusion. And so we're going to keep fighting between now and November. We believe our litigation is about giving hope to people who are wrestling with a pandemic that has really altered life in every respect. It's changed how we work. It's changed how kids go to school. There is no way we can accept the status quo in terms of how we have always run elections. We need to open the process up. We need to get rid of the restrictions. We need to make it easy for people to participate during this deadly pandemic that is still gripping communities across the country.
- [33:20]
A
So this brings me to you, Sam, because I guess it is for me the kind of constitutional Supreme Court question if all roads eventually lead us to the Supreme Court. And I keep saying mini Bush v. Gores cropping up like little crazy weeds. If I'm reading it right, and I think I am, every single time the high court has intervened in the past couple of months, when states do the things Kristin is describing, try to make voting easier, especially around Covid, you know, whether it's registration roles or other roles, the court impulse is not to expand the franchise. It has been to cabinet. And part of the thinking there is this Purcell principle, You know, we don't want to be in the business of changing rules too close to elections. This is what they cited in Wisconsin in the primary. I guess I need you to explain to our listeners what the derivation of this rule that says we don't want to do all the things Kristen just described. Right. We're in a once in a lifetime epidemic. It would behoove the court, I think, to be solicitous of efforts to make it easier to vote. And yet they keep shutting the door and saying, no, no, no, no, no, there's a principle at stake here. No changes can be made. Can you explain?
- [34:47]
C
Yeah, that's even harder than explaining Donald.
- [34:49]
A
Trump on a suit. Sorry, sorry, pal.
- [34:51]
C
You know, so. Right. You give me the tough ones. Look, I think honestly it's inexcusable that the court has been so insistent in standing in the way of lower court orders, expanding the ability to vote in this very difficult time. This is an unprecedented time. And it sort of feels like when the court first articulated this so called Purcell principle in a case called Purcell, that's why we call it the Purcell principle in the way they described it was, look, we just don't change things too close to an election because that's going to confuse voters. And you know, you sort of get that that's a kind of neutral principle. And that could be applied in various ways. But here's the thing. We have seen Covid and the way that Covid spreads and the way that Covid affects the community itself change things very close to an election. And then election officials have to respond to that. It's not responsible not to. And yet when they do that or when litigants do that, the court has recently been saying, no, you can't. Litigants seek to enable people to vote in light of these recent changes, because that would be inconsistent with the way the courts ought to act. And it just feels like what we have is a core that is saying the tie goes to letting fewer people vote. And there's no principle that justifies that. And, you know, so much of this has happened in the Supreme Court on the so called shadow docket. These emergency motions, you know, these are not cases that are argued before the court where there's, you know, someone like Dahlia Lithwick or, you know, Linda Greenhouse or whoever covers the court, Adam Liftak in the court, court, you know, saying, hey, let's watch the argument. Let's read the briefing ahead of time. Let's have a full discussion of it instead. This happens in orders that are issued late at night without full briefing, without the kind of full public treatment. And I think it's really inexcusable. I think that the court ought to stand up and be counted. You know, are they for allowing people to vote or not? And they should recognize that this is an unusual circumstance that has affected everybody and that is going to necessarily require changes to how people vote if you're going to protect the franchise.
- [37:21]
A
So, Kristen, I want to ask you the very last question. And if I just ask Sam, the lofty constitutional one, yours is just the nuts and bolts. How do folks plan? I mean, I know you've been saying, I've heard you saying all spring, like, like you just need a plan. You can't think of this for the first time on November 2nd. What do you tell listeners? You're doing the work in the trenches of filing these suits and fighting. What should individual voters be doing different this year? What should the plan be and what are the resources they can look to if they don't have a plan right now?
- [38:04]
B
So first thing is making sure that you're registered to vote and everyone around you is registered to vote, making sure that you are active, you're in active status, that you're getting all of the mailings from your local election official and you can do that by calling your local elections office. You can also do that by calling our Election Protection hotline. And I'll close with that. But what we're really trying to get people to do is to not see November 3rd as election day, but to really view October as Election Month. This is the time where people should really be activating and making a plan for how they intend to vote. Do you want to vote absentee in your state? What are the rules and requirements? What are the timelines by which you've got to request your ballot? When do you have to return the ballot? Figure all of that out. Is early voting available in your state and when? Well, making a plan for when you're going to go out and safely and securely cast your ballot during early voting. And if you're somebody who's going to wait to vote on Election Day, well, that's fine. Do you know where your polling site is? Because there have been a lot of changes, a lot of polling site consolidations. In a couple of cities, there are actually plans to use sporting arenas for voting, which is kind of neat. But it means that people need to do some work in advance to just know what the game plan should look like on Election Day. And at the Lawyers Committee for Civil Rights Under Law, we run a program called Election Protection. It's the nation's largest and longest running nonpartisan voter protection program, anchored by the 866 hour vote hotline, 866-OUR-VE. We encourage people to plug that into their speed dial, blast it out to their networks. We are working every single day to help people overcome the barriers they face. We're fighting voter suppression. We're answering questions about absentee voting, you name it. Our goal is to make sure that everyone has voice in our democracy. And you know, the program came about in the wake of Bush v. Gore. It came about when we realized there are a lot of breaks in the system. And we need a nonpartisan space where people can bring forth complaints and get access to accurate nonpartisan information. And, you know, here we are in a season where I think that again, rings true. We need a nonpartisan space where the public can just find out, okay, what can I do to vote? There's this pitched battle going on between candidates. I just want to know, honestly, what do I need to do to vote? And that's what we do every day through the 866 our vote hotline.
- [40:58]
A
Sam, do you have anything to add in terms of. Again, I know you're watching what's unfolding in Michigan, but any thoughts on how people can sort of just do the nitty gritty work of getting their vote counted.
- [41:13]
C
Yeah, I mean, I would just endorse everything Kristen just said. The idea of not an election day, but an election month and vote as early in the month as possible. I also think for those people who are comfortable doing it, volunteering to work as poll workers is going to be really important. There are, as Kristen said, going to be socially distanced polling places, you know, often using stadiums and sports arenas as polling places. But we know a lot of people are still going to show up and vote in person. And we need to make sure that those people don't have to wait in lines forever. And so if there are folks who can and feel comfortable with volunteering to work as poll workers to enable that process to happen, I think that's super important as well.
- [42:06]
A
Kristen Clark is president and executive director for the Lawyers Committee for Civil Rights Under Law. Professor Sam Bagenstass is the Frank G. Millard professor of Law who specializes in constitutional and civil rights litigation at Michigan. To both of you, thank you so very, very much. I wish you good health and we thank you so much for your time.
- [42:29]
B
Thanks for having me.
- [42:30]
C
Thanks so much. You too.
- [42:33]
A
So now we want to turn to our dear friend Mark Stern. He is Slate much loved legal correspondent about an issue that's really kind of gutted us here this week. Last Sunday in Kenosha, a white police officer shot Jacob Blake, who is black, in the back. His children witnessed this in the midst of protests and riots that sprung up in response. A 17 year old white man, we've chosen not to use his name, crossed state lines with an AR15 style rifle shot and killed two people, injured a third. He has since been arrested and charged with five felony charges that include first degree intentional homicide, first degree reckless homicide. But as Mark pointed out in a really brilliant piece this week on Thursday at Slate, a whole lot of folks believe that an injustice was done and they are making very broad legal, ish, legal, quasi legal claims about this shooter's right to kill those people in self defense. So Mark, on that sobering note, welcome back.
- [43:44]
D
Thank you. Happy to be here. I think the terms Scalia preferred for these kinds of claims are legalistic. Argyl Bargle but even that might be a little too vaunted for what's going on here.
- [43:53]
A
Can you, can you just give us a brief recap of what happened to Jacob Blake and how Kenosha came to be in the news this week during the rnc?
- [44:03]
D
Of course. So Jacob Blake is a black man, a father who was outside. There was some kind of disturbance. He was trying to walk away from police officers when a white officer fired seven shots, hitting him in the back at least four times. He's now paralyzed from the waist down. The shooting occurred in front of his children. He posed no clear threat to anyone at that stage. And understandably, protests and demonstrations broke out in Kenosha, Wisconsin. And some of those protests did boil over into rioting and true unrest. A lot of them were also peaceful. And what happened, unfortunately, after a few days of these protests was that the militiamen started showing up. This is a feature of modern American life that I just find so despicable and harrowing. But white men carrying assault weapons showed up to ostensibly keep the peace at these protests and at this unrest. And one of those individuals, a 17 year old, as you said, the shooter crossed state lines from Illinois, came hooked up with the militiamen. At one point, the Kenosha police actually gave them water and encouragement and expressed their appreciation, even though these militiamen were violating curfew just as the protesters were. And that was the police's reason to be there and to be trying to shut all this down because of the curfew. And at some stage it appears that some of the protesters recognized that the shooter, who was was unlawfully carrying an AR15 style rifle, posed a threat and attempted to disarm him. And the shooter then shot that person in the head, killing him. A group of individuals then tried to pursue the shooter to disarm him, and two individuals in particular ran up and tried to seize his weapon. And as they did, the shooter fired again and again and again and again and shot one man in the chest and another man again in the arm. The man who was shot in the chest has died. And so we have here what looks to be like a horrific mass shooting by a vigilante who seems to believe that it is his right to shoot people who he perceives to be his threats. And I would hope that any civilized society would say, absolutely not. That's not how we keep the peace in the United States. That's not an acceptable mode of bearing arms. And yet a huge number of people on the right, a lot of people in conservative media, some Republicans, are defending the shooter and saying that he acted in self defense on the basis of videos that show the exact opposite and provide no colorable claim for self defense. And the reason I wrote this piece was because I just saw this legalistic Argyl Bargle about self defense really proliferating on the Internet. And I fear that the shooter is on his way to becoming a right wing hero, which as our former colleague, New York Times writer Jamelle Bouie noted, is one of the most disturbing and ominous developments on the American right I think that we've seen in a long time.
- [47:21]
A
So Mark, I think there's a lot of things packed into what you just said, but I think one thing that we should pick at a little bit is this is not Castle doctrine. This is not stand your ground. This is no iteration of the blossoming second amendment right to defend your home, to defend yourself if somebody overtly attacks you. What you're saying is this is a person who crossed state lines, inserted himself into a protest and still is making claims that sound in those keys of, I don't know, whatever Castle doctrine means or whatever stand your ground means, but is in fact aggressively hurling himself into a crowd and shooting at people.
- [48:18]
D
Right, and shooting people who are rightly attempting to disarm him. I mean, I can't be clear enough about this. The shooter had no right to be carrying this assault weapon. It was an illegal act and it was, it was correct for protesters to try to confiscate that weapon from him. It was very dangerous to have a 17 year old wielding brandishing in the videos and unlawful assault weapon at these protests. And you're absolutely right, this is not Castle doctrine. This person was not defending his home or his property. This was not stand your ground. Wisconsin does not have a stand your ground law. So that doesn't factor in at all. Although I don't think it would apply yet even if Wisconsin did have such a law. And what we see in the video is a young man not wanting to have his gun taken away, turning around and shooting the people who are trying to confiscate it. That is not self defense under any state law, certainly not under Wisconsin's, which requires you to perceive a threat of really grave bodily harm or death in order to respond with deadly force. This was not a proportional response to what the protesters were trying to do. It was an illegal response. And this attempt to whip up some kind of hazy self defense claim, like you said, sounds in these broad defenses of the second amendment and the right to bear arms, but is really just an attempt to rehabilitate the image of a mass shooter.
- [49:43]
A
And can you just for precision, give us an example or two of what, what kinds of claims his defenders are making?
- [49:51]
D
So his defenders have settled on the claim that the individuals trying to disarm him were actually a mob of violent Thugs who were out to beat and possibly kill him, and that he had no choice but to respond with force. An attempt to kind of shoehorn the facts into Wisconsin law. But we have lots of video of this incident, right? And if you look at the video, you see no such thing. There's no indication that the group of protesters pursuing him are trying to beat him or kill him. They're trying to seize an unlawful weapon from someone. And to claim that their efforts to disarm this person were tantamount to some kind of potentially deadly force is to basically say that no one can ever stop a mass shooting. Because if you walk up to a mass shooter and try to take his gun, he might perceive brave bodily harm and turn around and shoot you. And that might be self defense.
- [50:53]
A
And I want to just link this to protests, quote, unquote, protests we've seen around the country, I guess, starting with protesters who stormed the Capitol in Michigan calling for the head of the governor over Covid regulations. But we've seen this play out, this theme that armed white vigilantes who call themselves militias or style themselves as defenders of the police or of justice in some inchoate way, they keep getting an almost complete pass from law enforcement. And that part of it I think you flag in the piece. But I think it's worth saying it explicitly, Mark. The cops were handing out water and thanking these guys. And in this case, the shooter, I think, stood around waiting to be arrested. Nobody did anything. So he went home.
- [51:54]
D
That's correct. After the shooter killed another individual and then injured one more, he essentially walked past police lines. There were squad cars a block away, and he just walked past them and went back to Illinois, fleeing the scene of a crime. Yet another offense here. But the police just didn't seem to grasp the idea that a young white man who presents himself as a militia member could have committed a crime. Because there's a group of diverse protesters, many of them black, right. Who are out there demanding justice. And then there's this seemingly upright young man who's just toting an assault weapon, saying he wants to keep the peace. And law enforcement in Kenosha believed that that was their framing of the events in their minds. And I think that that is the framing of this event in many conservatives minds as well. I think you absolutely cannot separate race from this. Right. Even though the shooter's victims all happen to be white, it was a crowd of both black and white people who he fired into, who were pursuing him. And to buy into the narrative that they were out to get him out to hurt him or kill him rather than disarm him. You just sort of have to assume that a group of white and non white people have malign intentions while a young white man is pure of heart. And that assumption, unfortunately, goes back through American history for a very long time. During civil rights protests in the 1960s, police officers often aided these reactionary right wing paramilitary groups and essentially encouraged them or even worked with them to suppress civil rights protests. And I fear we're seeing that, that cycle once again in these protests. We saw it at Charlottesville, and at least at Charlottesville, no one tried to defend Heather Heyer's murderer. Right. This is how far we we've come. Now a few years later, someone commits a similar crime and a large faction of the American right leaps to his defense.
- [53:55]
A
And I think it's also worth saying that one lesson of Charlottesville is the police, malign or malignant or simply unprepared, don't know how to police a rally, protest, march when people are toting around semiautomatic weapons. And so whether it's intentional or not, the story that gets told is these looters and protesters, who are unarmed, by the way, are dangerous, and the police can't quell the violence. And then you really see the police stand down, which seems to be what happened again in Kenosha. And that really leaves this vacuum into which militia members gleefully flood the zone. I mean, they, I think, are very, very clear that, well, if the police can't keep the peace, we not only are going to do it in their stead, but hell, we're going to come armed to the teeth. And it seems to me that it's clear that was the language that was being used on Facebook as they were organizing. And the implication that the police can't do their jobs is part of the really pernicious effect that is in some sense a result of the fact that people are walking into what should be peaceful marches with guns.
- [55:32]
D
Right. Open carry, I think, is largely to blame for this horrible dynamic because. Because it is really difficult to police when there is a large faction of people who consider themselves the true police, who are actually just civilians who are carrying weapons of war, weapons that were designed to slaughter as many human bodies as possible in a short amount of time. It's as if everybody were walking around with grenades, ready to pull the pin. And so in some ways, I think it's easy to sympathize with the police because you think, well, how are they. They supposed to deal with these gun toting militia members. But then you remember, well, actually it's their job and they aren't doing it. And as dangerous as it may or may not be, these are the consequences that flow from our decision to let people carry guns everywhere. And it cannot be right that minorities, vulnerable people, people exercising their First Amendment rights, are the ones who have to pay the price for that because the police decide they just can't, can't do it. They leave and the militia members flood the zone with their AR15s and sometimes shoot people in the head. This is a catastrophe for freedom of speech and freedom of assembly. It's a kind of 21st century heckler's veto. We saw it in Kenosha, and in some ways it worked. And I think that the aftermath of Kenosha, that the conservative faction kind of circling the wagons around the shooter, is going to encourage future militia members, and frankly, future mass shooters to go to these events and wreak havoc.
- [57:01]
A
Wow. I cannot frame a response just because I'm thinking about the November elections right now. But I don't want you to leave before you answer this last question. We've talked about Charlottesville a lot today. It was the three year anniversary in the last couple of weeks. And I remember right after Charlottesville, you and I, maybe the day after Mark wrote a piece together explaining that you just can't have capacious free speech and free assembly rights and also capacious second Amendment rights, and expect there to be no problem. Does this fit into that analytic bucket in your head of what do you do in a country where people have very broad freedoms to protest, to assemble, to angrily seek redress for things that they feel are unjust, and also increasingly, as we've both said, unlimited ability to carry weapons of war into those gatherings.
- [58:12]
D
Yeah, I think it's the exact same problem. It's a shame that our article after Charlottesville didn't become the law of the land, because I think we identified it correctly at that stage and not a whole lot has changed. When people bring weapons to a protest, it is frightening, it is scary, it chills. Freedom of speech. You will watch what you say around men who are carrying weapons that could shoot a hole the size of a grapefruit in your body in a second. And that's not what freedom of expression is supposed to mean. But because of these expansive open carry laws and because these weapons are available in so many places, the states and the courts just haven't really figured out a way to balance those rights. And when the first and the Second Amendment clash, the Second Amendment always, always seems to win. And I fear that after the Kenosha shooting, future protest demonstrations, even if they're entirely peaceful, militia members will show up with guns and people will be rightly afraid to express their views, to exercise those rights because they know that the police might stand down. They know the police might be working on with those guys or handing them water and thanking them. And they're going to watch what they say to make sure that they can at least leave with their lives and their bodies intact.
- [59:25]
A
And maybe it's just worth closing it out by noting that as you said three years ago, there were not a lot of defenders of Alex Fields, the man who ran over Heather Heyer with his car. There were some crackpot George Soros allegations, but there wasn't a lot of, of right wing claims that what he was doing was fundamentally lawful. The fact that that has changed in three years and that this gets swept into under just generalized gun law and order rhetoric, I think goes deeply to your point, Mark, that not only does the Second Amendment unerringly win in these contests between the first and the second, but that the zone of what is protected under the Second Amendment keeps expanding as well.
- [60:16]
D
Right. If I could say one last thing on this. You know, most of us tune out conservative media, the Tucker Carlson's of the world, rightly so, it'll rot your brain. But if you look at what these folks have been saying over the past few months, over the summer of protests, they hate these protesters, they despise them, they equate them to thugs and goons. They, they accuse them all of being looters, of being Marxist godless radicals. Right. They have long wanted to see a police crackdown on a protest, a Bull Connor style crackdown on one of these protests. And I think for a lot of those people, the Kenosha shooter was kind of like an avatar. It was kind of like what they had fantasized about he did. And I think a lot of them felt a connection to him and to his acts, including Tucker Carlson who defended him on tv. Right. And I think a lot of them said it's about damn time. And that's the most harrowing thing about this, is that people aren't just defending this guy, they are relating to him. They are empathizing with him. And that spells a lot of trouble for future freedom of assembly in this country.
- [61:24]
A
Well, with that insanely grim news update, we thank you, Mark. Mark Joseph Stern covers the courts, the law, state courts, LGBTQ issues, and so much more. So ably at Slate and Mark, we're so grateful to have you. Thanks for your time today.
- [61:43]
D
Of course. Thanks so much.
- [61:45]
A
And that is a wrap for this episode of Amicus. Thank you so much for listening. And thank you for your letters and your questions. You can always keep in touch@amicuslate.com or you can find us@facebook.com slate amicus podcast. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate Podcasts. And we will be back with another episode of Amicus in two short weeks. Hang on in there. Thanks for listening.