Podcast Summary: Amicus With Dahlia Lithwick – "Dozens of Baby Bush v Gores"

Date: August 29, 2020
Host: Dahlia Lithwick (Slate)
Guests: Kristen Clarke (Lawyers’ Committee for Civil Rights Under Law), Professor Sam Bagenstos (University of Michigan), Mark Joseph Stern (Slate)

Episode Overview

This episode explores the mounting legal and logistical battles over voting rights and the security of the upcoming 2020 presidential election in the United States. Dahlia Lithwick is joined by civil rights attorney Kristen Clarke and law professor Sam Bagenstos to break down anxieties around mail-in voting, the U.S. Postal Service, and the potential for election chaos reminiscent of Bush v. Gore, but on a multiplied scale. In the final segment, Slate's Mark Joseph Stern analyzes the disturbing legal and cultural defenses being raised following the Kenosha shootings, underscoring the escalation of armed vigilantes at protests and the intersecting crises of free speech and gun rights.

Key Discussion Points & Insights

1. The High Stakes of the 2020 Election (00:01–05:08)

• Contextual Backdrop: The episode opens with a reflection on the political and public health crises dominating America—COVID-19 deaths, civil unrest, Trump-era political norm-breaking, and the challenges of conducting a national election during the pandemic.
  • Lithwick: "We are staring down the barrel of a November election that could be mired in controversy." (02:19)
• Election Anxiety: There's mounting fear that numerous local legal battles—“dozens of baby Bush v. Gores”—may leave both sides believing the election was stolen.

2. The U.S. Postal Service and Voting by Mail (05:08–11:08)

Postal Slowdowns & Voter Access

• Kristen Clarke explains the significant delays and disruptions at USPS due to new policies from the Postmaster General, impacting the delivery of absentee ballots.
  • Clarke: "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." (06:48)
• Operational Challenges: DeJoy's changes—bans on overtime, removal of mail-sorting equipment, and fewer collection boxes—have undermined confidence, particularly in communities relying on mailed ballots.

Vote by Mail vs. Absentee Ballots

• Sam Bagenstos parses the false distinction President Trump draws between “vote by mail” and “absentee ballots.” Both, in practice, are mail-in voting, but Trump's rhetoric seeks to delegitimize one and elevate the other along partisan lines.
  • Bagenstos: "The clearest, simplest explanation... 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." (08:05)
  • Historical context: The Republican party's longstanding efforts against expanding access to voting.

3. Ballot Rejections and Voter Disenfranchisement (11:08–17:46)

Rejection Rates Among Mail Ballots

• Lithwick: Cites NPR's reporting of over 550,000 mail-in ballots rejected during the primaries, disproportionately affecting young, minority, and lower-income voters.
• Clarke’s Analysis:
  • Vote by mail is nothing new, but new to many voters of color, who often prefer the certainty and significance of in-person voting.
  • Absentee ballot rejection is higher for these groups due to arbitrary or minor technical errors and unreliable signature verification.
    • Clarke: "Signature match verification schemes are total junk science. Election officials are not trained and primed to be confirming and verifying signatures." (13:10)

Messaging to Voters

• Bagenstos: It's critical to be honest about the challenges without discouraging participation. The path forward requires informing voters to act early, use dropboxes when possible, and persist in voting despite obstacles.
  • Bagenstos: "There are going to be reasons why people aren’t going to want to vote in person... We need to make sure that they get absentee ballots... return them as soon as humanly possible." (16:13)

4. The Justice Department & “Seeding the Ground” for Disputes (17:46–24:28)

Bill Barr’s Partisanship

• Bagenstos: The Attorney General's vocal insistence on mail-in voting fraud, lacking evidence, seems explicitly aimed at sowing distrust and setting up a narrative to challenge unfavorable results.
  • Bagenstos: "Bill Barr is very much an adjunct of the Trump campaign... [laying] the groundwork for something that they expect to happen in November." (18:43)
  • On "blue shift": Later-counted ballots tend to be Democratic; results may swing after election night.
• Clarke: Emphasizes the DOJ’s unusual alignment with presidential aims, warning of interference and the necessity to fight back with legal tools like the Voting Rights Act.

5. Irregularities and Local Election Management (24:28–29:27)

“How Much Irregularity Is Too Much?”

• Bagenstos: Addresses concerns over minor errors or “irregularities” in places like Detroit, emphasizing these are expected in large systems and can be addressed administratively—not evidence of fraud.
  • Bagenstos: "It's going to take time to count all of these absentee votes... and we have to have the patience to not call the results too soon." (27:47)
  • Advocates for process improvements (e.g., allowing preprocessing of ballots) and skepticism of superficial fixes from authorities.

6. Ongoing and Anticipated Election Litigation (29:27–33:20)

Litigation Landscape

• Clarke: Details two-pronged legal strategies nationwide:
  • Affirmative litigation: Expanding access (challenging excuse requirements, notary mandates, criminalization of ballot application distribution).
  • Defensive litigation: Battling lawsuits aiming to restrict access (eliminate dropboxes, limit absentee ballots), often filed by Republican-aligned organizations.
    • Clarke: "It's almost a game of whack-a-mole... nefarious bad actors... bent on going to the courts to try and restrict access." (32:00)
  • Points to litigation as also serving to preserve hope and clarify processes amidst pandemic-induced confusion.

7. The Supreme Court’s Role and the “Purcell Principle” (33:20–37:21)

Supreme Court Reticence

• Lithwick: Notes that the Supreme Court lately invokes the Purcell Principle—discouraging changes to voting rules close to elections—to deny relief, even under extraordinary pandemic circumstances.
• Bagenstos: Criticizes the Court’s use of the shadow docket to limit voter access, often siding against expanding the franchise, and calls it “inexcusable.”
  • Bagenstos: "It just feels like what we have is a court that is saying the tie goes to letting fewer people vote. And there’s no principle that justifies that." (36:27)

8. Practical Advice for Voters (37:21–42:06)

Making a Voting Plan

• Clarke: Reiterates: confirm your voter registration, familiarize yourself with state-specific rules, make a plan early, and use resources like the nonpartisan 866-OUR-VOTE hotline.
  • Clarke: "We're really trying to get people to... view October as Election Month... making a plan for how they intend to vote." (38:43)
• Bagenstos: Adds encouragement for volunteering as poll workers to ensure in-person voting is smooth and safe.

Kenosha Shooting and the Expansion of Armed Vigilantism (42:32–61:24)

The Events in Kenosha & Legal Defenses (42:32–49:42)

• Mark Joseph Stern: Recaps the Kenosha shooting: A 17-year-old armed vigilante crosses state lines, kills two people, injures another during protests against the police shooting of Jacob Blake.
• Legal “Defenses”: Right-wing media seeks to frame the shooter’s actions as self-defense, distorting legal concepts like “stand your ground” and “castle doctrine.”
  • Stern: "This was not self defense under any state law, certainly not under Wisconsin’s... This was not a proportional response." (48:48)
• Racial and Political Dynamics: Police tolerated and even welcomed armed white militia, reflecting deep racial and political double standards.
  • Stern: "You cannot separate race from this... To buy into the narrative that they were out to get 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." (52:30)

The 1st vs. 2nd Amendment and the “Heckler’s Veto” (53:54–59:25)

• Protest Policing: The proliferation of open carry laws creates chaos for law enforcement and a chilling effect on free speech.
  • Stern: "This is a catastrophe for freedom of speech and freedom of assembly. It’s a kind of 21st century heckler’s veto." (56:30)
• Historical Parallels: Draws a line from civil rights-era law enforcement’s coddling of white vigilantes to today’s protests.
• There’s No Framework: Courts and legislators haven’t resolved the tension between expansive gun rights and the right to protest.
  • Stern: "When the First and Second Amendment clash, the Second Amendment always, always seems to win." (58:44)

The Shifting Zone of Protection for Violence (59:25–61:24)

• Cultural Shift: Unlike after Charlottesville, there’s a mainstream chorus defending an armed vigilante, further expanding the “zone” of protected Second Amendment activity and putting protest rights in jeopardy.
  • Stern: "People aren’t just defending this guy, they are relating to him. And that spells a lot of trouble for future freedom of assembly in this country." (61:16)

Notable Quotes (with Timestamps)

• "We are staring down the barrel of a November election that could be mired in controversy."
  – Dahlia Lithwick (02:19)

• "Signature match verification schemes are total junk science."
  – Kristen Clarke (13:10)

• "When the Purcell Principle was first articulated...we just don’t change things too close to an election because that’s going to confuse voters... But it just feels like what we have is a court that is saying the tie goes to letting fewer people vote."
  – Sam Bagenstos (36:05)

• "We need to be prepared for an election season where we're working until every voice is heard and every vote counts."
  – Kristen Clarke (23:35)

• "When the First and Second Amendment clash, the Second Amendment always, always seems to win."
  – Mark Joseph Stern (58:44)

• "This is a catastrophe for freedom of speech and freedom of assembly. It’s a kind of 21st century heckler’s veto."
  – Mark Joseph Stern (56:30)

Important Segments (Timestamps)

• Introduction, context, and themes: 00:01–05:08
• USPS and vote by mail: 05:08–11:08
• Rejected ballots and racial impact: 11:08–17:46
• Barr/DOJ and pre-election narrative: 17:46–24:28
• Local irregularities and logistics: 24:28–29:27
• Litigation landscape: 29:27–33:20
• Supreme Court and Purcell Principle: 33:20–37:21
• Voter advice: 37:21–42:06
• Kenosha shooting analysis: 42:32–61:24

Conclusion

This episode provides a comprehensive overview of the legal, logistical, and social challenges facing the 2020 election—with an urgent message for listeners to vote early, stay informed, and expect a complex, contested process. The final segment chillingly underscores how rising armed vigilantism, paired with politicized legal narratives, threatens civil rights and free assembly as much as any election dispute.