← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Why, Wisconsin?
00:51:13
Election lawyer Marc Elias on what this week’s election mess can teach us ahead of November.
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- [00:00]
A
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B
If in fact your goal is to be just a neutral umpire and not involve the courts in the political thicket, why, why get involved in that case? Why write an opinion?
- [01:27]
A
Hi and welcome back to Amicus. This is Slate's podcast about the law and the courts and the rule of law and the Supreme Court. And I hope that you and your loved ones are doing okay. And we thank you for sharing a little bit of your stay at home time with us this week. So, look, not very long ago, although it feels like it was a lifetime ago, we did a huge election meltdown series on voting and the 2020 election and all the ways that that election might not be reflective of the national will, that it might not be free and fair. And all that happened. Coronavirus hit and we could not go another show without discussing Wisconsin and mail in balloting, absentee balloting, and of course now the U.S. supreme Court, which has inserted itself right into the heart of all these issues this week. So this past week, the highest court in the land, which is not to be sure, hearing oral arguments during the coronavirus pandemic, because that would be unsafe, told Wisconsin voters to get themselves to the polling places if they had not yet received absence ballots. And as we know now, tens of thousands of Wisconsinites had not. So the result was just rank insanity. Wisconsin voters standing in line for hours wearing masks, workers in hazmat suits, Milwaukee opening just 5 of its 180 in person polling places because poll workers, quite reasonably, didn't want to risk their lives for the franchise. Yet in the end what you saw was an election in which people were risking their actual lives violating stay at home orders. And nevertheless, we are going to see huge disenfranchisement in the primary. Well, Mark Elias is chair of the Perkins Coie Political Law Group. He represents the Democratic National Committee and the Democratic Party of Wisconsin in this litigation. He is also one of the foremost election law experts in this country. We last spoke to him on this show in 2016 about a series of racial gerrymandering cases. He was litigating at the time, but he really was at the beating heart of the lawsuit this past week in Wisconsin and another suit in New Hampshire where response to COVID 19 is going to prove to be, as Mark has put it in a tweet recently, just plowing through the last guardrail in the fast moving descent of this democracy. Later on in the show, Slate plus members will have access to our bonus segment featuring Slate's own Mark Joseph Stern. Mark's going to run down some of the other cases and issues that we couldn't cram into this show about Wisconsin and elections. If you are not a Slate plus member, you can always sign up for a free two week trial at slate.com amicusplus but right now, to talk to us about what this pandemic means for the 2020 elections, what it meant in Wisconsin, it is a pleas to welcome Mark Elias back to the podcast in no small measure because I think there are real lessons to be learned from last Tuesday and I want to make sure that we're learning the right ones. So, Mark, without further ado, welcome back.
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B
Thank you for having me. It's always a pleasure.
- [04:47]
A
And I want to start, if we could, by defining the problem. And by that I mean, I've had so much mail from people worrying that Donald Trump is going to, in the manner of authoritarians Everywhere, cancel the 2020 election. But that's not actually the issue, correct?
- [05:06]
B
Correct. So I have good news and bad news for, for your audience. The good news is Donald Trump can't cancel the election. He can't move the election. Federal Election Day is set as the Tuesday following the first Monday in November and we will have an election on that day. The only way that that date could move would be a new act of Congress and obviously that that's not going to happen. So that's the good news. The bad news is we're going to have an election on the Tuesday following the first Monday in November. And we're going to have that election whether as a country we are prepared for it or we're not. And so what everyone needs to focus on is how do we take the steps now to make sure that when we get to November, we don't have a circumstance like we had in Wisconsin, but without any of the remedies that might otherwise be available to a state in the primaries where they could, for example, move a primary in November, there's no moving the election. So we've got to got to spend the time now to get ready so that we don't have a problem in November.
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A
So maybe, Mark, I can put the same question through a slightly different frame. And that is to say, throughout the last couple of shows, we've been talking about how in a weird way, federalism and decentralization generally of the United States government has been a reason. We haven't seen a lot of massive power grabs and violations of civil liberties. But the problem is that federalism, states rights, decentralization, particularly in the election context where you have a cafilon highly politicized county, state, municipal systems all working, it means you're not going to have a big sort of Viktor Orban style power grab, but you're just going to have a whole bunch of chaos, partisanship and self dealing. It's not exactly the civil liberties problem we're talking about. It's a different set of problems, right?
- [07:15]
B
It is. And you know, the, the system of democracy in this country works not only because there are rules and laws, but because there are norms and expected behavior. And what we've learned is that Donald Trump doesn't abide by those norms. And that that's played out in a whole host of areas where we've seen really, really problematic conduct on the, on the part of the president that, among other things, led to his impeachment. But elections are no different, right? Elections start with the assumption that everyone wants the same thing, which is a free and fair election, and everybody wants the same thing, which is every eligible voter to be able to participate and have their vote counted. And the problem we are facing is that the Republican Party under Donald Trump has simply deviated off that norm. Try to imagine the Republican Party, even of George W. Bush a few years ago taking the position publicly that it took in the courts in Wisconsin, which is that notwithstanding the fact that there was a pandemic, notwithstanding the fact that there were massive poll closures, notwithstanding the fact that voters couldn't get witnesses to witness absentee ballots, that they were going to both insist that the election move forward and also that it move forward under terms that guaranteed that large swaths of the population wouldn't be able to participate. So what worries me is, yes, the problems of federalism, for sure, but it's a particular kind of problem, which is that the President of the United States is standing in the White House at the podium saying that voters shouldn't be able to participate under some circumstances. And Republican elected officials all the way from, from from Senate to House down to governors and secretaries of state are hearing that message. And that's the problem that, that, that even though it's a federalism system, it is still one. That is that where the signals coming from the top are really loud and clear.
- [09:27]
A
And, and I guess we'd be remiss if we didn't note that Donald Trump was seating this argument even during the 2016 election. He was saying, there's going to be massive vote fraud, there's going to be buses of illegal voters. He was prepared, I think, to contest the results of the presidential election in 2016 just on this absolutely fallacious proposition that there is massive vote fraud and that Democrats steal elections. So this, in some sense, I mean, I think you're right that there's a norm that's collapsed, but in another sense, this far predated Covid.
- [10:04]
B
Oh, I totally agree. I've been talking about this for months now. The only difference is that in light of COVID people are now much more focused on this. But, you know, I am already litigating more than 20 voting cases in 14 states, and those predated Covid, because you're right, this is a message that Donald Trump and the Republican National Committee have been sending loud and clear for many, many months, or the only thing that's changed from 2016 to now is, number one, he has decided that the problem he was prepared to say was in place in 2016 was large numbers of undocumented immigrants voting in person. And now the focus of his specious allegations is voting by mail. The only other change is a really. Is a really, really significant one, though, which is that in 2016, it wasn't clear how much the Republican Party was willing to sign on to that. So, you know, if Donald Trump had lost the election, it was to be seen how much, you know, other Republicans would have signed on to that kind of notion. This is Donald Trump's Republican Party. And so, you know, when Donald Trump says, we have problems with vote by mail, you know, you start to see state and local officials echo that. And so it's a much more problematic circumstance than in 2016.
- [11:35]
A
Mark, one of the reasons I wanted to talk to you is because I think Wisconsin is both its own pathological voting nightmare and also because I think as many elections experts have told us in the last couple of days, Wisconsin is every state. It's emblematic of save the states that already have really effective vote by mail systems. This could happen anywhere. Wondered if we could pry those two things apart for a minute because in one sense, Wisconsin is a long standing canary in the coal mine on vote suppression, on voter id, on gerrymandering, all the stuff that you work on. So let's do one cut at this in which you talk about the ways in which you know, for instance, the extreme gerrymander from 2011 that somehow has Wisconsin Republicans holding two thirds of the seats in the state assembly, although they win less than half the votes. That's really, really Wisconsin specific, as is some of the vote suppression stuff around voter id. So tell us which parts of what we saw this week are really specific to the crazy way Wisconsin has been operating on voting.
- [12:47]
B
So look, I think that Wisconsin is both an outlier but also speaks to the problems in many, many states. So yeah, there is no question that there is reinforcing problems in democracy where you have where you start with a highly gerrymandered state legislature that then reinforces that gerrymander by gerrymandering further then reinforces that by having voting rules that make it even more difficult to overcome those gerrymanders. Right. So these are all kind of reinforcing in some sense, incumbent party protections. Right. You first make the seats hard for you to lose just based on partisan divide and then you make them even harder to lose based on who can vote. And then the other thing in Wisconsin, of course, that we saw that was underlying most of the, I think the fervor on the Republican side was a state supreme court seat was up. So then you pay a particular attention to your state supreme court because it would be the one body at this point that could undo the gerrymandering or the vote suppression by interpreting the state constitution to prohibit those things. So it is very much a reinforcing circle. That said, Wisconsin is not a completely unique circumstance. I mean, you can look at North Carolina, you can look at Florida, you can look at Texas, and you know, those legislatures certainly give the Wisconsin legislature a run for the money when it comes to passing voter suppression laws. And you know, litigation has improved the gerrymander in North Carolina, but it is still an overwhelmingly Republican legislature. Florida had fair district amendments that made the gerrymandering somewhat better, but you still have a system where the Republicans control both houses of the legislature and the governor. And then, of course, Texas remains a perennial problem, both with respect to gerrymandering and voting rights. And I'm just picking those states out. I could add to that other states as well. But all of these, these democracy principles are reinforcing. They are all aimed at the same goal, which is to put a thumb on the scale, to prevent everyone's vote from counting equally. And one way you prevent everyone's vote from counting equally is through gerrymandering. One way you prevent everyone's vote from counting equally is by putting restrictions on how votes are counted. And one way, the most extreme way, is simply by preventing people from being able to vote at all. And that's, you know, that's the most extreme that we saw in Wisconsin this week. But, but they're all of the same kind.
- [15:46]
A
And it's worth, I think, saying you flicked at it. But let's, let's pick at this a little bit more that one of the things that made this extraordinarily salient for the state Republican Party was that there was a state Supreme Court seat, a very contested state Supreme Court se that was up for grabs in this primary, that no lesser a person than Donald Trump had weighed in on this election. And I guess I'm wondering how much. I always feel as though the conversation about whether we should be electing state Supreme Court justices is sidelined in the conversation around voting rights. But is this one of those moments where you can say, oh, my God, why do we have partisan races in states for Supreme Court justices that will someday do exactly what the states Supreme Court did here, which is weigh in on an election?
- [16:43]
B
Yeah, look, I think that, I think it's really problematic that, that we have elected judges in this country to the extent we do. And I think that the notion of having elected judiciaries at the state level worked for a long, long period of time in our country because those elections were not partisanized. In other words, they were not, they were relatively sleepy affairs. You know, you'd have, typically, someone would get appointed to a position and then they would stand for some kind of retention election, and there wouldn't really be, you know, large money involved or the partisan, partisan forces. But, but again, that's a norm that broke down. That was never a law. That was just a norm. And now you see what you see. And then when the Wisconsin Supreme Court is then put in the position of deciding whether or not to postpone the election, well, of course it divides on the partisan or ideological lines because it has become such a focal point in the partisan divide over democracy in Wisconsin.
- [17:55]
A
So let's also break those two out because we had one action that was on Monday. The government governor, Democratic Governor Tony Evers, who had been begging the legislature to do something without any results, finally just took it upon himself to cancel the election, to bump it forward to June. That was blocked, as you just said, by the Wisconsin Supreme Court. Then there was separate litigation, which is the one that I think is the one we're here to talk about, which just has to do with something that was filed earlier that was a question about extending the absentee ballots so that voters could have an extra week to get their ballots in by mail. Judge Conley ruled in this that the ballots didn't have to be postmarked by Election Day as long as they were received by April 13th. That was the issue that went to the 7th Circuit. The 7th Circuit, a conservative court, agrees, and that's the one that goes on to the U.S. supreme Court. So can you just, I know it's complicated, but walk me through the claims in that litigation.
- [19:05]
B
You just said something that I think is one of the key facts of this that I feel like got lost in the coverage. So I just, I want to go back to it because it's spot on. Right. This didn't go from a district court judge in, in Wisconsin to the U.S. supreme Court. Everyone has overlooked in much of the coverage that this went to the 7th Circuit, which as you point out, is in fact one of the most conservative circuits in the country. Country. So it's not like, you know, this arrived at the Supreme Court and the Supreme Court had to unpack, you know, and review for the first time what had been done by a single district court judge in, in Wisconsin. This was fully briefed on appeal by the Republican National Committee and the Republican legislature to the 7th Circuit. The 7th Circuit looked at this, actually made some, some modifications to the original court order, and then it went to the Supreme Court, where the Supreme Court briefing was done, was, was completed on Sunday and a ruling came out late on Monday. And so, you know, a part of me wants to ask the question, and I know your job is to ask the questions and I'm to give the answers. But if the Supreme Court is supposed to be playing a modest role and only answering the questions that they have to answer that are, you know, that are pressing, why did the Supreme Court feel the need, why did the majority feel the need to at all weigh in on this case, on what was an extraordinarily expedited basis on the eve of the election after a trial court had held a full evidentiary hearing. And, and this is the why I say you really hit the nail on that. And a, a circuit court that is among the most conservative in the country had weighed in. That to me, speaks to part of what made the Supreme Court's decision and actions extraordinary. Because if you were in fact concerned that there are no Democratic judges and there are no Republican judges and there are no Obama justices and there are no, you know, Trump justices, which I think is a paraphrase of what the chief justices said, here it is a case arrives on your desk that involves a judicial election in the state of Wisconsin. Not exactly something that would be at the height of the concern of the U.S. supreme Court. Right. It's not even a federal election at that point. It's a judicial election in, in Wisconsin. The case is styled Republican National Committee versus Democratic National Committee. Okay. If in fact your goal is to be just a neutral umpire and not involve the courts in the political thicket, why get involved in that case? Why write an opinion? Why even have there be a written procurement opinion? Why not just let the work of the 7th Circuit stand without comment from the Supreme Court? So the Supreme Court didn't have to bless the 7th Circuit's decision, it didn't have to reverse it. It could have just said, you know what, this is among the tens of thousands of cases we get asked to take emergency action on. We can just pass on this one. So that's my question to you.
- [22:32]
A
Well, and I think, you know, one of the reasons what you're saying is so important is because the per Curium opinion makes it sound as though the only thing at issue is like, crazy drunk Judge Connally, like, running around making up rules on the eve of the election and sort of writing the 7 7th Circuit out of it. So they really are at pains, I think, to make it sound as though this one renegade district judge had single handedly sort of thrown off the entire electoral process. And I think that also got lost in the coverage.
- [23:06]
B
It did. It did. The seventh. That's why I, that's why I wanted to focus on your question. Because honestly, I've been interviewed and asked a lot about, about the Wisconsin situation and you are the first one to focus on those. The fact of the seven Circuit's role here, and you're right, it got written, it's barely mentioned in the majority opinion in the Supreme Court and it has not really been mentioned much by the media that's covered this. And I do think that that is something that makes this different than, for example, a case that went up either on a three judge panel where there was no court of appeals like in a Voting Rights act case, rendition case, or even, you know, where it went through a circuit that has a more of a reputation for a leftwood tilt. And therefore, you know, conservatives could say, well, you know, that was just the crazy 9th Circuit or whatever. The 7th Circuit's literally maybe the most conservative circuit in the country.
- [24:07]
A
And now back to our conversation with Mark Elias, chair of Perkins Coie's political law group, where he is a nationally recognized authority and expert in campaign finance, voting rights and redistricting law and litigation. He is also considered one of the leading recount and post election attorneys in the country. So there's another factual problem that I want you to clear up because the other thing that the procureum, it's worth saying this is an unsigned opinion, right? This is Bush v. Gore. Again, nobody's name is on the majority opinion. Ruth Bader Ginsburg writes the dissent, unsurprisingly signed by the court's, quote, unquote, liberal wing. But one of the things that the court says over and over in the procurement mark is that the plaintiff, the residents here, had never requested the extension to return ballots after April 7, that the relief that had been given was not sought. And the dissent says, well, that's not right. But can you help us understand this seems like a profound misreading on someone's part?
- [25:15]
B
Yeah, I think that the, that the majority misread this either because of the rush they were in, although it's in our briefs that we submitted to the court, so it was available to them. But let me just give you, if I can, the two minute version of what happened here because it also casts, I think, Judge Connally in a much more sort of sympathetic or correct light. So the original lawsuit that we filed on behalf of the DNC and the Wisconsin Democratic Party asked for a number of deadlines to be extended. Okay. Extend the absentee ballot application deadline, extend the absentee ballot receipt deadline, and extend the postmark deadline. So here is why the conservatives were able to sort of play a little bit of sleight of hand in the majority opinion, which again, your observation on this is like dead on, that it was per curiam. And at some point someone should dig into why it was an unassigned opinion of the five justices in the majority of party because that's an unusual, that's an unusual circumstance. But, but so we filed this lawsuit. Judge Conley held a hearing, and he noted that under its regular terms, Wisconsin law required ballots to be received by 8pm on election day. So that Wisconsin didn't have a postmark rule. It had a receipt rule. So what Judge Conley actually said was, I can't give you a postmark deadline as a relief because Wisconsin law doesn't allow for a postmark deadline for relief. What I can do is I can move the receipt by date to the 13th, because that is a more modest step to take in light of the policy preferences the state of Wisconsin has set out to go by receipt date rather than by postmark. So. So Judge Connally, in moving the receipt date to the 13th, was actually trying to be a judicial conservative. He was trying not to do radical surgery to the statute. We then. And this is where the majority opinion is incorrect, we then embraced that remedy. We then said, yes, in fact, people ought to be able to vote, and as long as our ballots end by the 13th count. So we. We did, in fact, request that relief. It was not the initial relief we requested, but as you know, and as any of the lawyers in the audience know, you oftentimes amend or alter the relief sought by facts and circumstances. So as the hearing went on and we were hearing from voters and hearing from election officials as to what was possible and also, you know, what was administratively possible and what the burdens being faced by the voters were, we adopted the idea of received by the 13th as a remedy. That's why the 7th Circuit understood that and upheld Judge Connally's relief because it provided fuller relief to voters. But it was actually a more modest judicial action because it didn't require rewriting the statute. One of the things that people commented by what the Supreme Court did in imposing a postmark or. Or granting the postmark by which was, in part, the original relief we sought, the Supreme Court actually sort of just created that there's no statutory basis upon which the Supreme Court imposed the postmark deadline. That is, in fact, part of the original relief we sought, but it was a much more judicially interventionist step than what the district court had actually done.
- [28:49]
A
So just to be super clear, what you're saying is when it came to sort of judicial creation of new elections law, it's actually the Supreme Court who does it. Not Judge Connally at the time. District Court.
- [28:59]
B
100%. No question. No question. That's why. And by the way, that's why the conservative 7th Circuit agreed with Judge Connolly, because Judge Connolly was actually not really doing much surgery with the law. He was addressing the balance between voter rights to, to be able to vote and the existing structure of Wisconsin law. And that's why it was a relatively minimalist. It was not a particularly creative or activist act on his part, which is why the 7th Circuit adopted. The Supreme Court sort of did this weird thing, which is it actually took a much more interventionist and activist position and remedy, but actually then disenfranchised more voters. Judge Connally was enfranchising voters and doing the least amount of change to Wisconsin law. The U.S. supreme Court did the most changes to Wisconsin law and enfranchised fewer voters.
- [29:50]
A
So this is all feeling very technical, but then I think the court pivots and starts to cite this case, Purcell vs. Gonzalez, the longstand rule that courts should be reluctant to jump into election procedures close to the date of the election. And they make this argument that, you know, oh, it's, it's kind of the Bush v. Gore argument. Again, you know, oh, oh, we have to just all lean back because, you know, it's not appropriate for the courts to intercede. And of course it sort of ignores the fact that there's already chaos. But can you talk for a minute about, I think there is this very, again, sneaky and pernicious sleight of hand here where the implication is Judge Connally is interfering with elections and in introducing chaos into the system, what we're doing is not that. And I think that that's a long standing Robert's Court trick. I wonder if you could talk about that for a sec.
- [30:49]
B
Yeah, and again, I think you're spot on, which is why half the people say to me that the opinion was authored by Kavanaugh and the other half tell me it must have been authored by Roberts because it does have. Kavanaugh would make sense because it's his. The application because of the Circuit came up to Justice Kavanaugh. Roberts, though you're correct. It reads more like a Roberts kind of lamenting that judges have to get involved. So I don't know who wrote the per curiam opinion, but you're entirely right. The issue is with the Purcell doctrine. For your audience who doesn't know, basically says the judges should not make last minute changes to election laws that are going to confuse voters and therefore potentially prejudice them. That's the idea. The idea is that if, if, if voters have an expectation about how the election system is going to run, making last minute changes through the courts can have a detrimental effect on voters because they, you know, they couldn't they can be thrown off. Purcell really has now been turned from a shield to protect voters by the ro, a sword to essentially disenfranchise voters, which, which really, if you think about it, makes no sense. Why would you worry about changes in election procedures that are going to enfranchise voters? Right. The original purpose of Purcell was, was literally the reverse. But, but in any event, what's interesting about the Purcell argument that they make is twofold. Number one, a large number of voters believed after Judge Connally's order and after the seven circuits order that in fact they now had till the 13th. So you know, the Supreme Court then, and I think there's, you know, there's a pretty good due process claim for one of those voters if their ballot is now not counted after the election to say, look, I was relying on a, on a federal court's order, and how can you now snatch that from me by another federal court? So I think the Purcell argument really cuts the other way. But in addition to that, that, you know, going back to the point that we were just talking about, about whether the lower court or the Supreme Court was the more activist here, the Supreme Court interjected the postmarked by in its opinion for the first time. Like that was not in either the Conley opinion or the, or the 7th Circuit opinion. And yet that escaped Purcell. I mean, think about it. So, you know, if I'm a lower court, and by the way, this is an argument that you'll see me make in, in other states now, Mo that where I, where, where we are urging state, where we are urging courts to strike down, receive by deadlines and replace them with postmark deadlines so that more voters can vote when those states now say in federal courts. Well, Purcell doesn't allow that because that's a last minute election change. My answer is, well, the Supreme Court allowed that. In fact, the Supreme Court initiated it the day before the election. So apparently enfranchising voters in that way doesn't raise Purcell arguments.
- [33:52]
A
Can you segue for one minute into telling us what happened on the ground, particularly in Wisconsin voters? I said in my introduction, people were standing in line. Horrific stories about people having to abandon ailing loved ones to go vote. But one of the things that you've been arguing for a long, long, long time is that all the, this disenfranchisement, whether it's through voter ID or whatever else, falls hardest on the poorest Americans, on African Americans and Native Americans and Latino voters. Can you give us some sense? I know we don't have any kind of comprehensive tally of what it looked like. But we know what happens when urban areas go from hundreds of polling places to five. What's your sense of. Justice Ginsburg said thousands of voters will be disenfranchised in her dissent. Is, is that what in fact looks like?
- [34:49]
B
Oh, it's going to be more than thousands. It's going to be tens of thousands. It could be even higher than that. But it's more than, it's more. I don't want to disagree with Justice Ginsburg on anything, but the absentee ballot situation itself is going to be in the tens of thousands. I mean, forget about the fact that Milwaukee had five open polling locations in the entire city and we saw debilitating long lines and the absentee ballot cut off. You know, there are, you've, we've all seen stories. Post offices hadn't even delivered the absentee ballots for people to vote by election Day. There was a massive set of issues involving the postal service, which is under tremendous strain already due to Covid and you know, the requirement of a witness, you know, made it impossible for many voters to vote. And that's before you get to the in person voting. And you know, we saw hours, long lines. And the fact is that nobody wants to wait in line for five hours. Even when the skies are blue, the birds are chirping and everyone is healthy. They certainly are not going to want to wait in line for five hours when there's a pandemic going on and people have to risk their lives. So I think this is going to be among the largest, if not the largest suppressive voting episode in my professional career. Just in terms of total numbers. I think it's going to be a staggering number of voters were ended up being disenfranchised.
- [36:24]
A
And before we leave Wisconsin, I want to ask you one last meta question that has sort of formed the backbone of so much of the discussions we've had in our election coverage in the last few months. And that is just if the net effect of this isn't simply, as you've said, widespread vote suppression, but also massive failure of confidence in what is the point in voting. The whole system sucks. Now we can add to the trash heap. It looks like the federal judiciary is completely biased and that both the state Supreme Court and the US Supreme Court put a finger on the thumb, put their thumb on the scale for their own team. I guess I want to ask the sort of zeitgeisty question which is actually how damaging is it to those norms you talked about at the beginning, when you have voters who witness just a spectacular failure of the franchise and just walk away from Wisconsin and everything else, just saying there's just no point. The whole thing is cooked and fixed, and the courts are in on it, too.
- [37:32]
B
I think that if that takes hold, that will be devastating. I feel like that that narrative has taken hold with redistricting, candidly, and I think that that's going to have a detrimental effect when it comes to districting after the 2020 census, frankly, I feel like there's some of that about the census, too. I mean, the fact is, the Trump administration couldn't cancel the census, but it could defund it in a way that you have a highly distorted result of who's counted and who. And in some sense, Wisconsin represents the same thing. But in an election which is literally, they couldn't cancel the election. They wouldn't let it be moved, but they could make it so. The voting rules were so hard for people to execute their vote under that. It's a highly distorted result that you get from who voted and who didn't. And in both cases, you have the U.S. supreme Court sort of throwing its hands up and saying, well, well, I guess there's really nothing for us to do here. In the case of redistricting, they literally threw up their hands and said, we have no role here. In this case, they claimed that there was little that they could do, but the very little they did was counterproductive. And I said this earlier, and I want to repeat it. I wish that someone at the Supreme Court would have looked at the caption of this case and said, do we really want. In an election year in which we know passions are going to run high and there is going to be a lot of judicial activity around voting, do we really want a case entitled Republican National Committee versus Democratic National Committee to be the case in which the conservative justices are lined up supporting the Republican National Committee's effort to restrict voting rights rights. And for all that justice that the chief justice has spoken about, how important it is that the judiciary not be viewed through that lens, I really think this was just an unforced error in that regard. In terms of public confidence, I need.
- [39:48]
A
You to throw us a bone and tell us something happy. Talk about New Hampshire.
- [39:53]
B
Yeah, I'll tell you a few things that are happy. So in the last few weeks, you know, we settled the case with Georgia over signature matching. Signature matching is part of absentee balloting. When they compare the signature on the envelope with the signature on file with registration in many states that matching process is very opaque and does not give voters the opportunity to have their signature fairly judged or an opportunity to cure. And we sued Georgia and Georgia settled with us. That was a positive. The state of Florida settled a long standing lawsuit that we had had with them over placing early vote centers on college campuses. Florida had banned early vote centers on college campuses, so they were allowed to be in any public building other than on college campuses. We sued and we won. The legislature then came back and passed a new law saying that it couldn't be placed in any location that doesn't have non permitted parking, which was a way of again getting back to college campuses. And the Secretary of State of Florida settled that case with us and agreed, issued a new directive saying that that law does not prohibit putting early voting sense on sites on college campuses. And so that was a real positive. And then just yesterday, just the other day, rather just earlier this week, week, we settled a case. I'm not settled. We won a case in district, in state court in New Hampshire where the court struck down Senate Bill 3, which was the domicile law that was passed by Republicans in 2017 in an effort to prevent college students from voting in New Hampshire. So, so these were all good developments on the voting rights front. And we continue to litigate, you know, a number of cases around the country and are, you know, having success in a number of them because you know, for the most part at the, you know, if you, if you look at these laws that are suppressive, you know, courts are still the best hope we have, have despite what happened in Wisconsin, courts are still the best hope we have to protect voting rights. So I have to make sort of two points. One is that where the political branches fail and we are seeing the political branches fail to protect voting rights because Republicans don't want them to succeed, the federal courts have to step in been it is one of the core functions of the federal courts is to protect fundamental constitutional rights of individuals and voting rights are central among them. The second thing is just a caution to the audience for the future. If the Republican National Committee was willing to spend all of this effort and capital and money over a judicial election election in Wisconsin, just ask yourself what will they be willing to do for November? Right? So if, if, if you ask yourself, you know, why would the RNC have gone to all of this effort for a state judicial election? Just imagine what when we're in September, October, November, they will be willing to do to affect the presidential and congressional and Senate elections in November. And that's something to be concerned about.
- [43:36]
A
I just have a few minutes left, Mark, and I feel like what I really want you to speak to is something you scooped up. You had a great piece in the Atlantic that said I'm summarizing folks should just read it. But said this goes beyond just no excuse, absentee balloting and mail in ballots, and you list some other things that have to change. And I'm struck by the fact that part of what's happening is the window is closing clearly for either federal changes or state changes to solve the COVID problem we saw in Wisconsin. But I think what you're saying is this doesn't necessarily have to be a thing that Congress lashes on to the next relief bill. This is something that's still states need to be pressed to do. Am I misreading you? Are you, are you saying that in this foot race to get very limited amount of time to get this resolved in time for the 2020 election, pushing for massive federal money to do this may not be our best bet that this is something we should be doing state by state as quick as we can.
- [44:47]
B
So I think it's two, I think it's two different pieces. Number one, Congress needs to appropriate money to the states so that they can fund the elections. The fact is the postal service right now is set to run out of money in June and it plays a vital role in elections. And states are right now taxed under the pressure of COVID as a health epidemic, and that's taxing their budgets. And remember, most states have a balanced budget requirement in their state constitutions, so they need money in order to simply be able to do the blocking and tackling to hold elections. But, but you're right. We can't overlook the things that states can and need to do to make sure that not only is there access to vote by mail, but that there is safe and available access to in person voting. We saw seven and a half hour long lines before COVID in Texas, we saw long lines in California before COVID and we obviously saw debilitatingly long lines in Wisconsin during COVID And our election system is quite rickety and it is not set up to handle the kind of external pressures and shocks that come either from high turnout or from COVID or from other crises. So there are some simple things states can do that shouldn't be partisan, but we'll see, like making sure that we recruit a new generation of poll workers. So in 2018, more than 2/3 of all poll workers were over the age of 60, 25% were over the age of 70. One of the things I propose in that Atlantic piece, for example, is that colleges and universities give course credit to students who are willing to be trained and work as election workers and that they receive pay as well. That states turn their civil servants, not their political appointees, but their civil servants, into poll workers, have them be trained. We expand curbside voting so that people can vote in their cars. Right? We set up the voting booth, so to speak, right out right on the, right on the street corner or right on the curb by the school. You get checked in, you get a ballot in your car, you voted. I would note that the National Review had an article online that endorsed this that I tweeted. I was happy to say that I thought that made sense. So there are things that states can do now that should be non ideological that don't help Democrats or Republicans. They just help everyone vote. Nobody wins when a city goes from having 180 some odd polling locations to five. I mean, a candidate may win or a party may win, but the system really fails. And Democratic and Republican local election officials need to band together to take these kinds of steps to ensure that everyone who wants a vote, vote by mail, can do so and have that ballot counted and not be rejected erroneously. And people who prefer to vote in person, and there are going to be people who prefer to vote in person. They need to be given the opportunity to do so without waiting in lines and without jeopardizing their health.
- [47:49]
A
So what I'm hearing you say, and this is always my last question, but I really want to hear you refine what you just said, is that folks who are out there who are crestfallen and heartbroken about Wisconsin and who are feeling like the fix is in and this is certainly not something that can be remediated by November of 2020. You are saying yes, and call, call and make sure that the next bailout package has funds to give the states a chance at having fair elections. And also make sure that your state is coming online to do the kinds of things that can be done that materially help, help. And all that stuff is where we should be putting our energy, right? Not get drunk and give up.
- [48:35]
B
That's right. I'm not pessimistic about holding free and fair elections in November. I'm realistic. I'm realistic that this is not going to be a bipartisan endeavor. I'm realistic that the Republican national committee announced a $10 million fund to fight voting rights in court. I'm realistic about the fact that they went to the Supreme Court court in Wisconsin. And I'm realistic that Donald Trump is going to continue to demagogue on this issue and that many Republican officials are going to follow his lead. But I'm also realistic that there are many hardworking election officials at the state and local level who are Democrats and Republicans who want their elections to succeed. I hear occasionally from local Republican election officials who are upset by what they hear at the national level because they don't they, they've committed their lives to make sure that elections succeed in their country, communities. So it's going to be a combination of Congress providing the funds and people keeping the pressure on this issue and not letting it fade into the background, making it a priority that, that this is something that, that we need to focus on. And then finally, I remain optimistic, notwithstanding Wisconsin, that the federal courts and the state courts remain the best chance to make sure that voting rights are protected. And so I and others will be bringing those cases in court, court and hopefully we'll have more results like we recently had in New Hampshire.
- [50:00]
A
Mark Elias is chair of the Perkins Coie Political Law Group. He represents the Democratic National Committee and represented the Democratic Party of Wisconsin in this week's litigation. He is also one of the foremost elections experts in this country and has been working so hard to make this system work. Mark, you gave us a lot of your time. We are so grateful for what you do. Thank you.
- [50:24]
B
You thank you.
- [50:29]
A
And that is a wrap for this episode of Amicus. Thank you so much for listening in and thank you so much for your letters and your questions. You can always keep in touch with us@amicuslate.com or you can find us@facebook.com Amicus Podcast. We want to know what you're worrying about and thinking about, so keep in touch. Today's show was produced by Sarah Burningham. Gabriel Roth is editorial director of Slate Podcasts, and June Thomas is senior managing producer of Slate Podcasts. And we will be back with you with another episode of Amicus in two short weeks. Till then, take good care.