Jill Winebanks (3:54)

So I'm taking my stress out in two things. One is eating, which isn't making me feel any better. In fact, it makes me feel worse. But it's only for a few days. It'll be over soon. But I am also using my stress and turning it into action because I agree with Barb. My dad raised me to never complain without taking action and I am doing everything I can. I've been canvassing in Wisconsin because Illinois doesn't need me and Wisconsin needs help. It's a very much a swing state and so it's worth spending the time there. I've also done, you know, postcard parties to address cards and some of my friends have done like thousands of cards. I am nowhere near that capacity, but it makes me feel better that I am doing something to help and to make this happen. And I'm also, I have a group of friends, we call ourselves the Quints because there's a total of five of us and we try to talk each other down from horrible levels. We send each other cartoons. I just forwarded one to you guys about women voting. I think you'll get a kick out of that. Those kinds of things help me through this very bad period of stress. I feel optimistic about the outcome, I really do. But I won't feel comfortable until we know a final result.

Joyce Vance (5:32)

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Jill Winebanks (6:03)

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Barb McQuaid (6:58)

I'm not sure I have a natural pout. Mine's more like a natural sneer maybe.

Joyce Vance (7:05)

Wow, you are not giving yourself enough credit. I think it's a pout.

Barb McQuaid (7:10)

I think it's a smile. How about that? Can we? Can we?

Jill Winebanks (7:12)

I think it's a very welcoming look.

Barb McQuaid (7:15)

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Jill Winebanks (8:26)

By the time you hear this episode, Election Day will be at most three days away and we're in uncharted rough seas in terms of pre election lawsuits. The RNC, led by Donald Trump's daughter in law has already filed 130 lawsuits in 26 states to pre but the 2024 results and to spread distrust before any vote is counted. That compares to Republicans filing about 60 lawsuits after the election in 2020 alleging voter fraud without any proof and losing almost every single one of them. We used to think 60 was a lot, but now it's nowhere near what we're seeing now. They lost almost 100% of those cases. Will they Again? Let's discuss what the pre election lawsuits are and whether we think the outcomes will mirror the 2020 lawsuits results. Let's start our conversation with lawsuits filed by the Department of Justice against Virginia and Alabama over those states efforts to remove suspected non citizens from voter registration rolls. Those purge efforts started less than 90 days before November 5, which federal prosecutors in bringing this lawsuit say violate the National Voter Registration Act. Joyce does it.

Joyce Vance (9:47)

Yeah. So you know it absolutely does. The NVRA prohibits systematic purges, wholesale pruning of voter lists closer than 90 days to an election. That's statutory law. Of course, before that 90 day period, it's fine. It's even encouraged for states to do this updating to their voter rules. But you have to question the motives of a state that waits until 30 days out to do it when they know what the statute says. So the Virginia argument is this. We weren't doing a wholesale exclusion of voters. We were just doing a strategic sort of a surgical removal of voters that we knew weren't eligible. And states can do that, by the way. That's just fine under the Motor Voter act. You know, you can remove an individual who's died or somebody who's moved to a new state. You just can't take out a whole group. And the problem is, you know, that it looks like that's what Virginia did, even though the Supreme Court has let them get away with it. We know that in Alabama at least 2,000 of the 3,200 Alabama voters who were removed were eligible citizens. And they've already identified about 20 out of about 1600 in Virginia. And that's exactly why there's this 90 day quiet period in place under federal law, it's because it can take time to sort these things out when there's a mass removal of voters, tracking the voters down, establishing their citizenship status, that takes a while to untangle. And so that's why states aren't permitted to do this so close to election Day, because it can disenfranchise voters. Which takes me back to that comment I just made. You have to question the motives when states do it at this point of time. They had two years, they could have done it earlier than this. They didn't. They did it now.

Jill Winebanks (11:31)

And I mean, to me what you're saying makes total sense and doesn't seem there's any logic, legal justification or precedent for them to be doing this. But did the courts agree? It's already been to the Court of Appeals and to the Supreme Court. What did the Supreme Court say?

Joyce Vance (11:51)

Yeah, that's the problem with the Virginia case. Right. It goes up to the Supreme Court. And in a 6, 3 decision split along political lines, the United States Supreme Court said that Virginia can return to removing voters from the rolls during the quiet period. So it's, I think, a distressing ruling. It suggests that this court is not shamed by the appearance of political bias. And that I think is a disturbing sign to see ahead of the election.

Barb McQuaid (12:19)

And may I make one other comment about this decision? You know, this is what is sometimes referred to as the court's shadow docket.

Jill Winebanks (12:26)

Yes.

Barb McQuaid (12:26)

And you know, we haven't talked a lot about the shadow docket, but you know, the court has its merits docket where things are fully briefed, there's a big oral argument, everybody listens, and then at some point the court issues its opinion. And it does fewer and fewer of these cases every year, but maybe somewhere between 60 and 80 of these big merits based cases a year. And then it has its emergency docket which gets used like it's summertime and somebody has requested a stay of execution while the court reviews a challenge to a conviction or something like that. And they've always had that. And it was used very sparsely, but when there was an emergency and the court was not in session. But now we're seeing more and more of these so called emergency decisions where there is not the benefit of argument and the decisions are these just one liners without any reasoning. So Joyce, you point out that the Supreme Court has sort of blessed this conduct that seems to be in direct violation of a federal statute. And I don't understand it. But we don't get the benefit of their reasoning. They just say, nope, you know, this is permitted. So I don't really understand the reasoning. I think that really harms the credibility of the court.

Joyce Vance (13:36)

I think that that's a fair point. I'm actually going to push back just a tiny bit for this reason. You know, sometimes I think that maybe we shouldn't use the phrase shadow docket because it implies something evil or unethical. And there are some cases that come to the court as emergency petitions for good reasons. Like for instance, when there's an effort to stop the execution of someone who's about to receive capital punishment. This is that same kind of a case. It's an injunction where a party is seeking fast action. Here there was a question of whether Virginia should be permitted to continue doing this until the election or not. There's actually a longer running case that will underlie it. And so the court had to make a decision. Like you say, they made that decision on their motions docket. And I think you do have a really fair point that when they do it without, you know, they don't have to write a 30 page opinion.

Barb McQuaid (14:29)

Yeah, give me a sentence.

Joyce Vance (14:30)

It has. Right. It has not been fully briefed. It can't be fully briefed in this setting. But I do think that they owe us more because I'll tell you what, the argument here, the best case for the Supreme Court is the argument that I laid out that they think that this is one of those limited removals of voters. That's okay. I disagree with that. But maybe that's their reasoning. My fear is this, and I actually had this conversation with one of our former colleagues earlier today, Barb, you know, the fear is that the court, which has already kneecapped the Voting Rights act, we no longer have those protections. What if they use this to go after the Motor Voter act, the nvra, the National Voting Rights act, which is also sometimes called Motor voter. What if they use it to say, well, the Constitution leaves it up to states to set conditions for elections so the federal government can no longer establish a 90 day quiet period and protect voters. And that seems like really crazy and nuts, but because that protection has been around for a long time. But I guess with this Supreme Court, we have to contemplate what level of protection they're willing to permit the federal government to provide to voters.

Barb McQuaid (15:37)

Yeah, I just don't think we should have to guess.

Jill Winebanks (15:39)

It's really hard to accept that there was some precedent or logic behind this when the language of the law is so clear and when there was evidence presented of how many of the people purged were actually legitimate registered citizen voters. And so the evidence was that they weren't surgically removing people, they were just taking people off willy nilly. And I just, I think in this case that the shadow docket was the wrong way to go and that we were owed some explanation that might make this legitimate and not hurt further the credibility of the court, which is already at lifetime lows. We can't even imagine it. But, okay, let's move to Pennsylvania. Because, Barb, they had several challenges filed over its mail ballots. One was about the right of their citizens to get notice and an opportunity to cure when there was minor defects. One was about whether they could refuse to count mail ballots with missing or wrong dates. And then there was a suit that Trump filed about, quote, his voters not getting mail ballots in Bucks county on the day of the last day of being able to get those. And so he filed a suit in a county, Bucks county, that's a very purple county in a very swing state. And by the way, there are more Republicans than Democrats registered in the state. So when he says they're his voters, they're maybe more of the people in line were his, but we don't really know. He didn't interview and say who's not getting a ballot. It wasn't like the clerk said, all Republicans step out of line, all Democrats come on in. But that one went to the Pennsylvania Supreme Court. And talk about what that is, Barb, and whether it will affect the outcome of the election.

Barb McQuaid (17:34)

Yeah, well, there are a number of cases. You know, in this one, it was about allowing voters in Bucks county to file absentee ballots, extending their date. And the judge ruled that it could be extended until Friday. And, you know, I don't have a problem with making sure that the right to vote is expansive and that people get a chance to vote. And so even though this is one that Donald Trump advanced, if it lets more people vote, I'm all for it. But I do think your bigger point, Jill, is a good one, which is if we've got all of these court decisions in the days leading up to the election that are doing things like extending the date or waiving the rule that the envelope has to have a handwritten date on it, or refusing to change the rules about overseas ballots, all of these kinds of things, it does create the possibility that we're going to see more post election litigation. And although I think, and I hope in the end we will see the resolution of these lawsuits in ways that are fair and consistent with the law. There's always the possibility that, number one, it delays the final certification of the outcome of the election. So we don't know for some time. And there's also the possibility of the whole Bush v. Gore scenario, right, where some state's outcome is contested and the court ultimately steps in and says, stop counting, stop recounting, or whatever it is. But, you know, this is how disputes about election laws are supposed to be decided, through our courts, not through brute force by attacking the Capitol. And so if people have issues about how the election laws are being applied, I say let's litigate them. Let's decide them fairly. And I think that it's showing democracy in the legal system working well. I think some of these challenges are simply designed to cast doubt in the outcome of the election so that afterwards, if there is a result that some people don't like, they can say, you know, the system was unfair or it was rigged or something like that. But, you know, the courts are there to resolve lawsuits, and that's what they're doing. And so I think it's going to be fine.

Jill Winebanks (19:52)

I hope so. And it is clear that in a race that is this close, that the decisions about whether to count ballots that have dates missing or not to count them could ultimately affect the outcome of the vote, because a few votes per precinct can make the difference in the outcome. But, Barb, there's also, as our propaganda and mis and disinformation expert, there's another issue I wanted to ask you about, which is there's been a lot of fraud perpetrated on social media. There's a lot of fake fraud reports that could be used by Republicans after the fact to challenge election outcomes. What do you think? I mean, there's one episode where they were saying no one lives in this monastery and they shouldn't vote. Well, yeah, the nuns live there and they are entitled to vote. What do you say? How do we deal with all this dis and misinformation?

Barb McQuaid (20:49)

Yeah, there's an awful lot of it coming on social media. A lot of it is being trafficked on the X Platform now run by Elon Musk, formerly Twitter. And we're seeing a lot of that. We're seeing a lot of it come from Russia. There's a really great organization that's run out of Microsoft, their Threats Analysis Center. It's run by Clint Watts, who you may know, he's a legal analyst on msnbc, but this is his day job. And he is issuing, you know, reports about things that they're detecting coming out of Russia with false claims. Unfortunately, we see people in the United States serving as their useful idiots by repeating some of these claims. But I think that, you know what, what we need to do as consumers of news is to read some of these things with some skepticism. You know, there are going to be all kinds of rumors in the days leading up to the election. I'm sure there's going to be all kinds of attacks. We've already seen a fake claim that Tim Walls was involved in sexually assaulting a student. Completely false. We've seen a claim that Kamala Harris was involved in some hit and run accident years ago. Completely false. This is all made up stuff designed to disparage these people. You know, the problem is some people will see this and believe it, but I think some of it should be pre bunked. You know, people ought to brace themselves for the next few days. We're going to see a whole lot of crazy things. And you know, there's some really best practices about how to verify what you're seeing online. One is consider the source. Is this just some guy posting it or is this a legitimate news outlet? Even if it is a legitimate news outlet, look for a second source. Is this being reported only in one news outlet? If so, maybe you ought to treat it with some skepticism. Don't rely just on the headline. The headline often bears very little resemblance to the story itself. And so I think that if you follow some of those best practices, you can avoid being duped. But of course, there are those who don't care whether a claim is true or not. They only care about whether it advances their agenda. So I'm sure we will see people reposting all these outrageous claims so that they can, you know, help advance their preferred outcome in the election. But I think the American people are smart. I don't think they're going to be fooled. People are going to go to their polling place and frankly, a lot of people have already voted.

Jill Winebanks (23:17)

And of course I know that our listeners are definitely smart and they won't be fooled. But there are so many cases pending now. I wanted to ask each of you to pick one or two that you want to point out as something that you think may have some consequences or be important in some way. So, Joyce, what do you think might be of interest to our listeners in some of the pending cases?

Joyce Vance (23:43)

Yeah, well, as you mentioned, there are a lot of cases all across the country, and one of the big ones is pending in front of the United States Supreme Court right now. It's a case called Genser, and it's about voters whose mail in ballots have deficiencies. You know, we all try to be at the top of our game when we vote, but sometimes people maybe forget that there's this convoluted thing where you have to use a security envelope to put your ballot in in addition to the mail in ballot. And if you get that wrong, your ballot gets bounced. A lot of people, when they see the date line on the ballot, instead of putting today's date, will just respond with their birth date. That happens statistically in a certain percentage of cases. And so the issue is, what happens if you do that? Are you entitled to fix your ballot or do you lose your right to vote because of a silly mistake? Republicans don't want people to be able to fix their ballots in Pennsylvania. So that's the issue that's in front of the Supreme Court. And look, I mean, in a tight race, that could be outcome determinative, right? This could be. Barb was talking about, you know, this year's Bush v. Gore. Well, maybe that could be it. If Pennsylvania is tight and if the race in Pennsylvania is very close, it's possible that that could be the one. There are cases in other states, by the way, that are pending on related issues involving mail in ballots. A lot of the litigation involves mail in ballots and other very technical issues about voting. I know Michigan has played a big role in some of this litigation. North Carolina, too. So we're seeing a lot in swing states, and some of it even involves military voters who vote by mail under the UOCAFT statute and who mail in their ballots. And there are issues about whether those will count. So there's a lot to keep our eyes on.

Jill Winebanks (25:28)

For those who didn't get what Joyce just said, it's the Uniformed and Overseas Citizens Absentee Voting Act.

Joyce Vance (25:35)

Thank you. I appreciate that.

Barb McQuaid (25:37)

Well, I guess I'll say one of the things that concerns me. There is a lawsuit challenging this. It's part of the new bill in Georgia. You may remember that after the 2020 election, they passed a bill with a lot of different provisions in it, making it more difficult to vote. And they did so in response to all of the election fraud, despite the fact that their governor and their secretary of state and others said there was no election fraud. So you really have to wonder what the true motives are. But in one of the provisions is allowing a citizen to challenge a voter's right to vote. So imagine, there you are, like, I show up to vote. Like when I go vote, like I'LL bike up there or something, you know, I mean, I'll, I'll stop by on a run and to go in there and imagine if they say, you're not a U.S. citizen. Show me your citizenship papers. Like what? You know, my citizenship papers. I've left those at home. Why on earth would I bring them here? And so I do worry that that can cause some problems. And in fact, I think I'm less worried about the lawsuits and more worried about physical obstruction of people's right to vote. People showing up at polling places and creating chaos. I know that we'll talk later about the role of the Department of Justice in preventing that, but that's the kind of thing, right? You've got challengers at polling places saying, I challenge your right to vote and making it more difficult or even just intimidating for people to cast a ballot. I worry a little bit about that.

Jill Winebanks (27:07)

Yeah, you're right to be worried. And what worries me most, I think, is that the lawsuits seem so flimsy that they cannot be seriously intended to change anything, that they are only intended to cast doubt on the credibility of our election system and that it's working. Even though there has never been any proof to support all of these allegations. Another one I'm particularly worried about is Arizona. I just read about this recently. A court just ruled hours ago that Arizona has to give voter information to a right wing organization that could end up harassing these people. And so it's troublesome when that kind of data is being given out. Although I will say the court pointed out that this particular organization has never really done anything bad. So I'm hoping that there will be no bad consequences from this and that we're going to end up having a free and fair election and that all of these lawsuits will be handled appropriately by the courts.

Barb McQuaid (28:21)

You know, I don't want to give our listeners the impression that their vote is meaningless because of these lawsuits. These lawsuits are gonna fail. These are desperate attempts to try to sow doubt in the process so that if and when Donald Trump loses, he can say that the election was rigged, but they wouldn't be trying so hard to prevent you from voting if they thought you were gonna vote for them. So don't be deterred. Just show up and vote and it's gonna be okay. Democrats have teams of lawyers prepared to respond to these frivolous allegations, and it's going to be okay.

Joyce Vance (29:02)

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Barb McQuaid (31:04)

Well, I want to talk now about the role of money in politics. I've actually been wanting to talk about this for a long time and I think this is a perfect week to do it because of what the news we've seen recently about Elon Musk. But the role of money, dark money and how it corrupts our elections. So let's take this recent incident of Elon Musk is paying registered voters in swing states who sign his petition to affirm their support for the first and Second Amendments. Now, I don't know what this amendment, this petition is for. I don't know who he's going to send it to. I think it's just a way to get people registered and get their information. So lottery. Well yeah, he pays them $100 to sign the petition, right? So the collects are information and then they qualify for the lottery where the prize is a million dollars. But so far the only people who have won this lottery were people who have attended Trump rallies. This is like the worst reality TV show ever. Right. And so we saw a lawsuit filed earlier this week, Joyce, and I want to ask you about this. It's a civil case alleging that these lotteries are violating consumer protection laws in the state of Philadelphia. Can you explain the theory of that case?

Joyce Vance (32:23)

Yeah. So, I mean, I think this is pretty interesting, right? This is the district attorney in Philadelphia filing a civil case under a nuisance theory. District attorneys usually do criminal prosecutions. Right. That's what we're used to seeing them do, primarily. But this is a civil case, and it's an effort to stop Musk from continuing to make these payouts in advance of the election on the theory that what he's doing is, in fact, running a lottery that runs afoul of Pennsylvania law. And so it's a civil nuisance. This is sort of a sort of statutory device that states and localities use to keep people from doing everything, from letting rundown houses exist on property to running an illegal lottery that, as Barb suggests, might not be entirely on the up and up. So it's a really interesting and unusual situation.

Barb McQuaid (33:10)

Yeah, I kind of like this. This theory that it's a consumer protection violation. I don't know the law of Pennsylvania. I assume the DA there does. And I think it's an interesting theory because, you know, there were some thoughts that this violated federal election law, and I'm not sure about that. Federal election law, this might have found a loophole, says you can't pay someone to vote, and you can't pay someone to register to vote. This is kind of a roundabout way of paying somebody to register to vote. But I think it might be a loophole that's just cute enough to evade the law there. I know DOJ sent a letter that said you may be in violation of federal law, but I think it might have been kind of hard to prove. So I sort of like this other theory that it's not about an election, it's about an illegal lottery in violation of consumer protection laws.

Joyce Vance (33:58)

So can ask you a question about that, Barbara. I mean, you know, DOJ is so hesitant to send those kind of letters, and it's pretty remarkable for them to do that right before an election. I actually wonder if we're not going to see a prosecution after the fact. I mean, I know that the letter supposedly. I don't think we've seen the letter itself, but I know it supposedly said that you may have violated criminal law, but that sort of DOJ speak for, hey, quit doing this or we're going to prosecute your ass.

Barb McQuaid (34:25)

Yes, yes. Well, he, he's, he's, he hasn't stopped, has he?

Joyce Vance (34:31)

No, he doubled down and kept going. Right. He's got extensive lawyers who say that they can defend him.

Barb McQuaid (34:37)

Yeah.

Jill Winebanks (34:37)

If DOJ meant it, then they would have to do it before the election to have any impact. And as, as Barb just said, he's bought himself enough time that he's going to be able to get away with it. The election is on Tuesday. We're talking on Friday. So what's going to happen in the courts on Saturday, Sunday or Monday? I don't think very much is going to happen.

Barb McQuaid (35:03)

Yeah. So, Jill, tell us about the procedural history. So these charges get filed, what, Monday, I think, and I shouldn't call them charges because it's civil. The claim, I think, got filed on Monday. Here we are Friday. What, what's happened throughout, throughout the week.

Jill Winebanks (35:16)

A spurious thing happened where the request from Elon Musk was to remove it to federal court because it was a First Amendment case, which it isn't First Amendment case. But the local judge in Pennsylvania said, okay, I'm putting this case on hold until that's decided. And we just, while we have been recording, the court just remanded the case from the federal court back to the state court. So now we are Friday afternoon in Philadelphia. It is 4:00 right now. Is anything going to happen in the Pennsylvania court to stop this from proceeding? No, there's going to probably be a hearing. Even if it's on Monday, it's not going to stop anything before the election is over. So in a sense, he's, he, Elon Musk has won. The state of Pennsylvania has lost, and that's the end of that. It has not been successful in stopping the conduct that may be improper.

Joyce Vance (36:30)

Well, we'll see, Jill. I'm going to put beans down on that one and let's wait and see what happens.

Barb McQuaid (36:36)

Beans down. Is that what you bet?

Joyce Vance (36:38)

Beans and beans down.

Barb McQuaid (36:40)

Oh, my gosh. All right, well, let's, let's talk.

Jill Winebanks (36:43)

I'll take some chocolate.

Barb McQuaid (36:47)

Well, let's, let's talk bigger picture because, you know, the lottery is not the only thing that Elon Musk has done. He's also pumped a lot of money into this election. He's given Donald Trump $45 million of his own money and $75 million of his America Super PAC. So, choice, how is it that Elon Musk can contribute these huge amounts of money and ordinary people are limited to Individual contributions under Federal law of $3,300. So what? I mean, other than the fact that I don't have 45 and 75 million dollars to donate, how is he able to do that? What laws permit him to do that when we've got these individual limits?

Joyce Vance (37:26)

I can't believe you're going to make me talk about the Supreme Court without Kim here to drag me back off of the ledge. But here we go.

Barb McQuaid (37:33)

She'd be out there with you.

Joyce Vance (37:35)

You know, I suspect our listeners all know about a Supreme Court case called Citizens United. It was decided five to four in 2010. Justice Kennedy wrote the opinion. In that case, the Roberts Court struck down limits on campaign spending by PACs as long as they don't, quote, coordinate with the candidate. But even though that's the clear legal rule, in practice, that line can be very fuzzy. It's as fuzzy as people are willing to make it. And especially when it comes to Republican special interest groups, it's been pretty damn fuzzy. They've really been willing to go right up to that line and maybe even quietly cross over it. So this is how it works. Musk donates to his pack, and he can donate as much as he wants to his pack, and then his PAC makes political expenditures. Of course, these are theoretically not donations. They're just exposed expenditures. And that's how the United States Supreme Court created an end run around American democracy that permits billionaires to exert significant control over our elections.

Barb McQuaid (38:37)

Yeah, it's, you know, the case that keeps on giving. And there's some very naive language in Citizens United that failed to predict the future about how things would work and thought that it would promote transparency. So, Jill, now that we're seeing that Citizens United is coming home to roost, does it feel like billionaires are able to buy an election? And what do you think Musk wants in return for his hundreds of millions of dollars?

Jill Winebanks (39:04)

So, yes, I think Citizens United is maybe one of the worst decisions of the Supreme Court. And I've thought that for many years, because it does. This idea that corporations are people is so absurd and that these PACs are not coordinating. Of course they're coordinating. What do I think Musk expects in return? Well, of course, he's been promised that he will have a cabinet level appointment to control government expenditures and reduce the deficit or what? I mean, it's all so silly. But he has a huge list of contracts with the government and I think he is trying to protect his investments and that's why he's doing this. And that's again, one of those reasons why people will not trust government. And while Donald Trump keeps saying that he's going to clean the swamp, he's only deepening it and committing horrible things. We can all see for sure that his supporters are going to get special attention. And if you say nice things about him, if you endorse him, if you spend all this money, you can get what you want, whether it's a policy decision that, for example, the Adelson's may want about Israel, or whether it's the government contracts that Elon Musk wants to keep worth billions of dollars. That's what he expects to get out of it.

Barb McQuaid (40:36)

Yeah, I find it so disturbing. Donald Trump is famously transactional and values loyalty. And so I really see us leaning in the direction of what we see in Putin's Russia, where it's an oligarchical society. The oligarchs, wealthy people, lift him up with financial support for his campaigns and then in turn he rewards them by giving them contracts in the energy sector or the metals sector or other kinds of things, and then they in turn take their profits and invest it right back in him. So it's this awful cycle where only a very small group of elites in an oligarchy can control the government. And then of course, they make rules that favor those business people. So it's a really, it's a really ugly cycle.

Jill Winebanks (41:25)

And let me just say in Russia, it's not just supporting his campaigning. He is a very wealthy man from the contributions that all these oligarchs have made to him personally.

Barb McQuaid (41:40)

Well, the other concern about money in politics isn't just that there's so much of it, but also what's called dark money. So, you know, There are these 501c4 organizations known as social welfare organizations that are allowed to protect the identity of their donors and then give the money to a super pac, which can in turn make these huge expenditures. So you know, some of the social welfare, like the NRA is a social welfare organization, the ACLU is a social welfare organization. They have to spend at least half their money on other things besides this. But if it's a multimillion dollar organization, the amount of money they can use for our political campaigns can be really quite extensive. So what do you guys see as the downsides of dark money enabled by these super PACs and 501C4s?

Jill Winebanks (42:31)

It seems obvious to me that the most horrible thing that comes out of it is that we don't know who is funding all of this and what they expect in return with Elon Musk, we know what he's spending and we can look at his list of government contracts and know what he expects in return. But for many of these people, we don't know what policies they want passed. And it's not obvious to anyone because their names are kept secret. You don't have to disclose who contributes to these super PACs.

Joyce Vance (43:06)

Yeah, I mean, I'm a big fan of transparency. And this just removes the transparency from politics and it lets us get manipulated because it means people can fund efforts that appeal to certain voters without really having those voters best interests at heart. You know, in the worst case, I guess it's open to abuses like letting foreign interests play a role in our election. That's illegal. If you get caught at it, you get prosecuted. Some of Rudy Giuliani's friends learned that lesson last go round. But in reality, whenever there's no sunlight being shined on, stuff like political money in campaigns, our democracy is the worse off for it.

Barb McQuaid (43:47)

Yeah, you know, you see these ads and it'll be like, you know, paid for by concerned citizens for a Safer America. Which sounds like, who wouldn't, who would object to that? That sounds love. And you know, you find out it's like one guy who wants to advance some agenda because it will benefit him personally, or it's an organization like the NRA that wants to support gun rights. So it really is a, I think, a terrible thing. I don't think we're going to be able to overturn Citizens United anytime soon. But I do think we could pass laws requiring the disclosure of who's behind these donations. There may be some first amendment concerns with revealing lists of donors for political contributions. But I think there's a compelling governmental interest and one, a solution could be narrowly tailored to achieve that interest by requiring disclosure of political contributions.

Joyce Vance (44:42)

You know, Barb, you write about that in your book, and I think that's one of the smartest suggestions that you make. Maybe that should be something that we all push in the next four years.

Barb McQuaid (44:52)

Well, thank you for reading my book so carefully.

Joyce Vance (44:55)

I like your book.

Barb McQuaid (44:57)

Thank you.

Jill Winebanks (45:07)

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Joyce Vance (45:28)

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Jill Winebanks (46:12)

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Barb McQuaid (46:53)

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Joyce Vance (47:40)

Well, let's try to end on a slightly more upbeat note, shall we? Anybody game? I thought we'd talk a little bit about DOJ's role in protecting elections. You know, there's a lot of criticism of Merrick Garland. There's perennial criticism. I think some of it is merited and other times I disagree with it. But you can't really talk about what DOJ should be doing unless you know what DOJ is supposed to do. So I thought we'd talk about that a little bit. Barb, I know that some folks might think DOJ has the primary role in protecting the nation's elections, but in fact, that job belongs to the states. And DOJ's manual for prosecuting election offenses sort of explains that. It says the principal responsibility for overseeing the election process rests with the states. It is the states that have primary authority to ensure that only qualified individuals register and vote, that the polling process is conducted fairly, and that the candidate who received the most valid votes is certified as the winner. Of course, that doesn't mean that there's no rule for the feds here. So can you give us a layout of what DOJ does every election cycle?

Barb McQuaid (48:49)

Yes. So, you know, it isn't about fairness in the counting of the votes. That is all delegated to the states. But there are rules for the Justice Department if there is an effort to suppress votes. So if, for example, there are armed gunmen who show up at polling places, they will enforce civil rights laws to say, you can't prevent somebody from voting. If it turns out there was voter fraud and somebody voted who wasn't supposed to vote after the fact, they will look into that as an election crime. They investigate campaign finance violations. If you're giving illegal donations, if there are threats of violence against election workers or other officials involved in the election process, they might be involved in that, but they really take a hands off approach in terms of the counting of the election. That's all for the states. And you may recall some controversy about this in 2020, when William Barr changed a policy of the Department of Justice which said that we don't do investigations into the integrity of voting before an election is certified because we don't want to do anything to cast doubt on the legitimacy of the outcome. And he changed that policy and said, we're going to go ahead and have those investigations because Donald Trump was pressuring him to investigate these claims, which turned out to be false, of course, of suitcases full of ballots being counted and all these kinds of things. And you may recall that the head of the Public Integrity Section at the Justice Department, which is the group that investigates these cases, resigned over that change in policy. When we got to the Biden administration, the policy was changed back. So you're not going to see the Justice Department getting involved in an investigation before the election and before it's certified, unless it is one of these physical disruptions. You know, we're at a polling place and we've put a gun to the head of the poll workers and we're not going to let people vote. The FBI will be there in a heartbeat to make sure that doesn't happen.

Joyce Vance (51:02)

Yeah, I mean, I think that's such an important point to make that historical context. Right. We don't want DOJ deciding the outcome of elections. Both the Justice Department department and the Department of Defense have a hands off policy that says it is not our job to decide who wins. We will protect, but we will not determine outcomes. So I, I think that's an important thing to keep in mind. You know, Jill, while there are some areas DOJ doesn't get involved in, there's still a lot of work that they do. One of those areas historically has been sending out election monitors who make sure that everything is on the up and up at PO polling places that have had some issues over time. This year, Republican leaders have tried to block that in some places, which is just crazy to me. Right. This notion that As a sitting U.S. attorney, some of my employees would come to me and say, hey, I'm going to go and be a poll monitor. And you would say, you know, God bless you, thank you for your service, and send them off. It's strictly apolitical. It's just about protecting the right to vote. So help us understand what's going on and why Republicans don't want people's rights.

Jill Winebanks (52:03)

Protected at the polls because they lose elections when people vote. And so they don't want people voting. They're trying to suppress the vote. And this is one other way that by their suppression efforts will not be measured and will not be stopped because they're keeping people from being there to monitor the bad activity. And this year there were, I think there's an attempt to monitor more sites than ever before in history, but there is more pushback. And so it's going to be interesting to see whether without the permission they will be able to, these monitors from the federal government from DOJ will be allowed to enter the polling places.

Joyce Vance (52:53)

So, Barb, prosecutors understand this very important idea that you and I have been discussing, that DOJ shouldn't do anything to influence the outcome of the election. And often what that means in reality is waiting until after an election is decided to file criminal cases. That can be really frustrating when you see crimes happening and DOJ is hands off. But can you make sure that we understand what's behind that policy?

Barb McQuaid (53:18)

Yeah. So I think it is an effort to avoid interfering in the election process. The Justice Department is part of the federal government and it is each state that has its own elections. You know, we are conducting 50 state elections on election day as opposed to one federal election, even though the elections conducted in those states might choose candidates for federal office. And so they're very much Hands off. And never want to be seen as doing anything to interfere in the election process. Again, unless there's some sort of need to stop someone who is disrupting physically a polling place. But that doesn't mean they're not going to be involved in criminal prosecution. And criminal prosecution is about punishment after the fact. And why do we punish people after the fact for committing crimes? It is to hold them accountable. It is to deter other people from doing it in the future. It is to protect the public from the danger of these very people. And so all of those things can still happen after the fact, but they're very careful to avoid even the appearance of meddling in the outcome of an election.

Joyce Vance (54:31)

Hey, so Jill, I get that and I actually agree with everything that Barb just said. I think that's the rationale for a sometimes frustrating hands off policy on the criminal side of the House. But DOJ also does important election protection work on the civil side, and some of that does happen beforehand. We've talked, for instance, about the Virginia and the Alabama cases today that sought to restore voters to the rules with mixed success. But can you talk about some of the other important work that's done here that folks may be less familiar with?

Jill Winebanks (55:02)

Well, I don't think they're always familiar with what we talked about in the last question about monitors from DOJ going to protect the right to vote. They do the civil rights enforcement. And that can be done pre election. There are, as Barb was just describing, very good reasons not to bring criminal cases until after the election. But they are allowing other entities to bring cases that might stop bad action before the election when it could be stopped from having an impact on the election. And I think they've notified Musk that his conduct could be potentially criminal. But as we've talked about already in our last discussion, they're not bringing the case because it's too close to the election and could be seen as interfering.

Joyce Vance (55:57)

You know, I'm a huge fan of some of this civil work. For instance, in Los Angeles county, we may have talked about this on an earlier episode, but DOJ did a county wide consent agreement with the county of Los Angeles to make sure that Americans with disabilities had access to polling places. Oftentimes the entry is too narrow for folks in a wheelchair. There's also this effort to guarantee access for language minorities. There are a lot of American citizens who don't speak English or who are not as comfortable in English as they are in their first language. There's nothing that says you have to speak English in order to be able to vote. And so DOJ does that language access work, too. This work might seem small and insignificant in today's day when we face this major threat from the nominee for one political party, but I think it's really important, and it signifies the commitment to letting everybody vote and then helping the state, which DOJ undoubtedly provides a lot of support to state and local partners, both by providing information, by providing resources to them, which is, of course, Congress's job, so that the states can do the count, can make sure the count is secure. And of course, we know this year DOJ will be alongside state and local partners, making sure that there are no threats to the poll workers and to the election workers and that if they are, that those cases are swiftly prosecuted.

Barb McQuaid (57:21)

Yeah. You know, one of the. One of my favorite cases that we brought when I was serving as U.S. attorney was with the city of Flint, who was failing to provide ramps to mobility disabled voters. And they couldn't get into polling places. So we, you know, approached them, we told them we were prepared to file a lawsuit, and they quickly came into compliance. So it's very gratifying work, and it's very important to voters.

Joyce Vance (57:44)

They are great cases. You know, we did that in Birmingham, too. And the thing about it was. And it was a lot of the polling places that were courthouses or schools or churches that had put up, like, security monitoring that wheelchairs couldn't go through. When you pointed out to them what they had done, they were appalled. I mean, you know, we came and said, we're prepared to sue you. We don't want to. And they were like, please don't help us fix it. And DOJ in those settings can provide technical grants for assistance. I mean, this is a great opportunity of government working with us and for us. And again, I'll just underline that is not political.

Barb McQuaid (58:18)

Right.

Joyce Vance (58:18)

When the U.S. attorney in Birmingham is helping people vote, about 80% of those people are going to vote Republican. And. And that was not my concern. My concern was making sure every eligible American could vote. There's a lot of turmoil in the world right now. If you're listening to the podcast, I bet you could use calm. It feels super stressful sometimes it feels hopeless when things are outside of our control. And that's why we are such big believers in the power of meditation with calm. Calm can help you restore your sense of balance and peace when you're surrounded by chaos like this weekend. Since I've started using it, finding my center has been much easier. Challenges and stressors feel manageable instead of seeming like massive obstacles. And sometimes it's even enough to get me back off the ledge.

Jill Winebanks (59:14)

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Barb McQuaid (60:04)

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Joyce Vance (60:37)

CALM puts the tools you need right in your pocket and can help you dedicate just a few minutes each day to live a happy, healthier life. Stress less, sleep more Even during election season, live better with Calm for listeners of our show, Calm is offering an exclusive offer of 40% off a Calm premium subscription at calm.com sisters go to cm.com sisters for 40% off unlimited access to Calm's entire library. Again, that's com.com sisters and you can find the link in our show notes. Well, y'all, now it's time for our favorite part of the show where we answer your questions. And this week, not surprisingly, we had a lot of great ones to choose from. If you've got a question for us, and I know you will next week, please email us@sistersinlotpoliticon.com or tag us on social media using SistersInLaw. We'll try to answer as many of your questions as we can on social media. If we're not able to get to them during the show, let's start. Jill, we've got a great question from Karen in Pennsylvania that I want to send your direction. She asks, if Trump were to be elected as a convicted felon, how can he be given A security clearance.

Jill Winebanks (61:59)

I love that question. And the answer is not going to be satisfactory to most people. And that's because the President doesn't actually get a security clearance. He just gets to have any information he wants. And he can also waive security clearances for people like, oh, for example, his son in law who was recommended not to get a security clearance in his first administration. And he said, I don't care, he's going to get the information. So the election by the people confers on the President the security clearance that other people have to be granted after an investigation. And so there you have it. He gets to have everything. He could not enlist in the military because he is a convicted felon, but he will be the commander in chief. So when you're voting, keep those facts in mind.

Joyce Vance (62:56)

Okay, Barb, this question from Brenda. If Trump wins the election but dies between election day and inauguration day, what happens? Does, God forbid, J.D. vance become president? Does Kamala get appointed or do they hold a new election? What happens?

Barb McQuaid (63:11)

Such a good question, Brenda. And the answer is found in the 20th Amendment, which says that upon the death of a president elect, the vice president elect becomes the president. So in the chain of succession, we would see J.D. vance become the president.

Joyce Vance (63:31)

Vote carefully. Friends, our last question this week and I'm going to ask actually each of y'all this. I love this question because it lets us sort of finish where we started. So Heather asks this. I would love to hear how each of you plans to spend election night. Jill, what are you going to do?

Jill Winebanks (63:50)

I'm going to stay home with my husband. I'll be glued to the television. He will probably not join me because the tension is more than he can bear. My dear friends discussed whether we would have a get together and we all sort of decided that we really just needed to bear this on our own. In 2016, it was one of my best friend's birthdays and she held a party that was going to be a celebration of the election of Hillary Clinton and a celebration of her birthday. And the party didn't end so well. And so I'm sort of not wanting to be with friends where it could end up that we all separate. Crying I am optimistic that that will not be the result and that we will be cheering and shouting and we will zoom with each other inst. That's what I plan to do. I haven't planned exactly what I'm going to eat that night, but that'll be an important part of the evening.

Joyce Vance (64:54)

Barb.

Barb McQuaid (64:55)

Well, I'm serving on a panel discussion at our Wallace House, where we have through the night, Wallace Foundation, a group of international journalists who come together. And so we'll be discussing the election that evening. That's just in the early evening and then after that, nothing special. And that's because I don't think it's going to be decided on Tuesday. I am very optimistic about the outcome of the election. I think it's going to be just fine. But I do think it's going to take some time. And that's because of the vast increase in the number of people who are voting absentee or early. And they don't count a lot of those votes until after the polls close at 8pm here in Michigan, at least. And so I think it's going to be a few days before we know the outcome. So I think the days of sitting in front of the television and watching the returns come in maybe behind us, but it's going to be okay. And so whether it's, you know, Thursday, Friday, Saturday, when we actually learn the results, I'm. I'm comfortable with my options. I think it's going to be okay.

Joyce Vance (65:57)

You know, I have this rich fantasy life where American women and people who love them go out and vote with Dobbs on their minds, and by 9pm we know that Kamala Harris has won. But I get that that's my fantasy life. And I think you're actually correct. I actually wrote a piece locally in Alabama in 2020 saying to people, you know, don't be worried if the returns are slow to come in. It's not fraud. It just means that we're living through a pandemic. Lots of people are voting by mail, and that takes more time to count. And that's really true. A lot of states like Michigan don't permit that count to begin or even processing of ballots to begin until election Day. So it can take two or three days. And in some states, if the majorities are razor thin, you know, they may not finalize their count until Friday when they count provisional ballots or some of the military ballots. So delay is not bad. Delay just means that everybody's vote is getting counted. But I'm actually going to do something different this year. Usually, you know, we have traditionally just stayed at home with our kids, but our kids are sort of grown and out the door now. And so I'm going to invite neighbors over just to sit on the front porch and chit chat for a little while as the sun goes down or as, you know, maybe even as it gets darker. But I've been finding, you know, for the last week, sort of the same place I started that. What's really comforting to me is being around other people and just hanging out. So I wish that for all of our listeners, whether you want to stay home alone and hide under the covers or whether you're hoping for good company, I hope that the next few days go well for all of us and that when we see you guys next Friday, there's very happy news for us all to talk about. Thanks for listening to SistersinLaw with Barb McQuaid, Jill Wine Banks and me, Joyce Vance. Follow SistersinLaw on Apple Podcasts or wherever you listen and please give us a five star review. It really helps others find the show. Please show some love to this week's sponsors, Thrive Cosmetics, Mint Mobile, Lomi and Calm. Their links are in the show notes. Supporting them really helps make this podcast possible. See you next week with another episode Episode hashtag Sisters in Law. You know, it's so funny. My best friend from law school who lives in Birmingham has this, you know, sort of like southwestern Virginia accent. She's from South Boston, Virginia, and she says woof instead of wolf. And so for 30 years we've been doing everything we can do to get her to say the word wolf. I mean, people say eva, what is that? The big bad what? And now we all say woof.

Barb McQuaid (68:36)

The big bad woof.

Joyce Vance (68:38)

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