Election Legislation in the States: Moving Forward or Backward?

Episode Summary

Will the election reforms adopted in 2020 be made permanent? Will voting options be expanded further? Or will states seek to roll back voting opportunities as a result?

Episode Notes

The 2020 elections hinged, in dramatic ways, on widely varying state laws and state election procedures. Major changes were made in light of the pandemic, to expand options for mail-in and early voting and to Election Day itself. These changes engendered strong support and strong opposition, and were one reason for the record turnout of 160 million voters. Now, state legislatures are in session all around the country. Will the changes adopted in 2020 be made permanent? Will voting options be expanded further? Or will states seek to roll back voting opportunities as a result? 

On Thursday, February 18th, the Ash Center hosted a discussion titled Moving Forward or Moving Backward: Election Legislation in the States with leading state election experts and state legislators to see where things stand, and where they might go.  Tune into the discussion featuring: 

The transcript for this episode is online here

About the Ash Center 

The Ash Center is a research center and think tank at Harvard Kennedy School focused on democracy, government innovation, and Asia public policy. AshCast, the Center's podcast series, is a collection of conversations, including events and Q&As with experts, from around the Center on pressing issues, forward-looking solutions, and more. 

Visit the Ash Center online, follow us on Twitter, and like us on Facebook. For updates on the latest research, events, and activities, please signup for our newsletter.

Episode Transcription


Presenter: You're listening to AshCast, the podcast of the Ash Center for Democratic Governance and Innovation at Harvard Kennedy School.

Miles Rapoport: I think we can get started. I want to welcome everybody. My name is Miles Rapoport. I am the senior practice fellow in American democracy here at the Ash Center at the Harvard Kennedy School. I want to thank everybody for joining us and start with just a few announcements on behalf of the center. First, I want to recognize that the land on which Harvard University sits was traditionally the land of the Massachusetts people and has always been a place where meetings of nations and interchange between nations took place. Today's event also is one of the series of events the Ash Center will be presenting on election issues and democracy issues at a moment when these discussions, these issues, are front and center in American political discussion.  All right. Let me just frame the issue a little bit more for everybody. Today's discussion I think is both really important and extremely timely. The election of 2020 was remarkable for a number of things as we all know, but one of them was the drama that played out over the election process itself. The starting point was the challenge of doing a major high-interest election in the middle of a pandemic. Almost immediately discussions began to be held about how to open up and accommodate voters safely in the pandemic by, mainly by expanding voting by mail and expanding early voting possibilities. Equally quickly, the lines of debate fell into very familiar patterns. 2020 elections had the most controversy, the most lawsuits, and the most changes in voting process in the middle of the election of any election ever. And throughout all of that, or despite all of that, it had the highest turnout ever in an American election. In the end, according to recent figures released by the Pew Research Center, 158.4 million Americans voted which is 66.2 of the eligible electorate. Now, here we are in the middle of February of 2021, the state legislatures around the country are in session. And the questions of how states are going to run future elections is at the center of debate again. According to the Brennan Center at least as of a few days ago, and it changes minute by minute, 165 bills have been filed in 33 states to restrict the vote in some way. And on the other hand, 541 bills have been filed in 37 states to expand voting options, often by making permanent the adjustments that were made last year. As a former state legislator, I know that filing bills is a far cry from getting them passed, but it's, but the sheer volume of bills is a clear indication that voting is going to be a major issue in state legislatures this year and will be for the future. So, what do we make of all this? What's happening now? What states are the most egregious in one direction or another, and where are we likely to land? Fortunately for us, we have three people who are at the center of these discussions and extremely knowledgeable about them to help us sort this out, let me introduce them now. First will be Wendy Underhill. She's the director of redistricting and elections at the National Conference of State Legislatures known as NCSL. It is known, it monitors, the NCSL monitors all legislation on all issues, but certainly including election issues. And Wendy is just an incredible bipartisan and authoritative resource on the subject. Personally, I've had the pleasure of working with Wendy at NCSL conferences and events. She is truly a remarkable resource on just the questions we're addressing today. And of course, this being the year of the census and redistricting, she's become an expert on all things census as well. Wendy, thank you very much for being here with us.

Wendy Underhill: Glad to be here with you. Thank you.

Miles Rapoport: Dale Ho is a remarkable litigator. And as the director of the Voting Rights Project at the American Civil Liberties Union as such he has been on the front lines of identifying efforts at voter suppression in states and fighting it back against them in court after court around the country. Dale personally has argued two cases before the United States Supreme Court on the census and on immigration and has been involved in numerous court cases in states around the country, in defense of voting rights. Dale, delighted to have you with us.

Dale Ho: Thank you so much for having me. Looking forward to today.

Miles Rapoport: Okay, great. Finally, State Senator Nan Grogan Orrock of Georgia, Nan began her career as a civil rights activist in SNCC and the Southern Student Organizing Committee and has been in the Georgia State Legislature for over 30 years. She represents a good part of the City of Atlanta and has been a stalwart fighter, often against great odds and opposition on behalf of voting rights and on behalf of full participation for everyone in Georgia. Personally, I'm delighted to say that Nan has been a friend of mine for years and she's on the front lines with Stacey Abrams and others in bringing about real change for the State of Georgia. So, with all that as introduction, let me ask my first question to Wendy. Wendy, in your role as a tracker and trend observer in chief, we might say, for state legislation, how would you describe the trends you're seeing in the state legislatures around the country, still at this relatively early point in most of the sessions?

Wendy Underhill: Well, thank you, Miles, for inviting me here and thank you for that very nice introduction. I hope I can live up to what you had to say about me, but we'll see. And thanks to everybody who's here with us today. I understand we're landing on Mars at this very moment. So, you do have some competition in how you spend your day. So, your question is about the trends that we're seeing this year and it's not surprising that what happened last year in election would drive legislation in the following year. That's always the case. And the big news is, of course, related to absentee voting. And I'll talk about that for a moment but there was more going on last year than just the huge increase in absentee voting that also is showing up this year. So, I'm going to have things in a couple of buckets. We'll do the absentee voting. What was there and then a few things from a separate bucket. So, just like you said with Brennan, when NCSL looks at the laws that have been, the bills that have been introduced we see are kind of a parallel set. Some are likely to increase the access to an absentee or a mail ballot. Some are intended to limit. And I'm going to say that most of them are fine tuning. Brennan categorizes more in those first two buckets of increasing or limiting. We think more fit into that fine tuning category. I think the reality is right there out for folks to see. And it's not a surprise that primarily Democrats are proposing bills that would reduce the number of signatures that you need to get an absentee ballot or make it easier in one way or another. And it's not a surprise that Republicans throughout the nation are more likely to say what happened last year was a one-off. We want to try to corral this in some way and maybe define it, maybe limit it, but the fine tuning pieces, those could work for anybody. And these are things like drop boxes, there, prior to last year, there were only eight states that had legislation that defined a drop box in any way, shape or form. Well, now there's quite a number of states. I think it's about a dozen that have legislation that would identify what's a drop box. How secure does it need to be? And where should it be? It was just a question that wasn't present for us until so many people were voting absentee. Ballot collection is kind of a variation on that theme. Who can handle a ballot other than the voter? And so what we've seen some bills that would probably identify exactly who can take that. Is it a family member only? Is it anybody that you'd like? Is there a limit on the number of ballots that could be handled? And then a signature verification and signature cure, this is again, if you were in a state where you didn't have very much absentee voting in the past before 2020, you might not have had very clear rules about what signature verification meant or whether the voter could have an opportunity to cure a signature. All of a sudden you saw those states with more absentee voting, and now they're saying, let's figure out what that means. So, then my second bucket was the things that aren't exactly related to that. And one is primaries. We kind of forget that there were a whole lot of primaries last year, as well as that general election. That seems like so far back. But now the question in front of folks is, how do they want to handle their primaries? And particularly, there seems to be a little trend towards how can unaffiliated voters participate in a primary? I obviously, if the primaries are closed, Democrats go here, Republicans go here. And the third of voters who are neither say, what am I chopped liver? So, I think we're seeing some bills that relate to unaffiliateds and whether they can participate. Poll watchers, clearly, after the election, that became a hot issue and states have generally had legislation or regulation on who can watch at the polls but there hasn't necessarily been clear legislation on who can watch the voting, the counting process. So, we're going to see a little bit, since we now have like this whole timeframe that's called an election instead of one day, I think the regulations around poll watchers is likely to shift a little bit. And of course, the electoral college, every presidential, you see some bills afterwards to either join or exit the national popular vote. This year we do see more bills related to the congressional district system for allocating electoral votes, and Nebraska, which is one of the two states that currently has that system where they give two of their electoral college votes to whoever won the state as a whole. And then the others are divvied up by congressional districts. They're looking to shift back perhaps, and then, we have a couple of states, Wisconsin's one, and I think Michigan might be the other where they might go the other direction. So, not a surprise. The electoral college brings up a lot of stuff also faithless electors as well. And I'll just mention briefly, rank choice voting seems to be, if not hot, at least warm and post-election audits which is kind of part of the verification system seems to be something that states are going to be looking at more and more and more. And I think, Miles, I'll hand it back to you with that. Happy to come back later and say some more stuff as needed.

Miles Rapoport: Great. Wendy, thanks very, very much. And Dale, let me come to you. You are also one of the keenest watchers in the country of states attempting to restrict voting options, especially in battleground states. It seems like every day we see another story about legislators, usually Republicans, as a matter of accuracy, filing broadside attacks against voting in states like Pennsylvania, Arizona, Iowa, and of course, Georgia, which we'll come back to. What are you seeing? And what's the ACLU doing in response?

Dale Ho: Broadly speaking, and thank you, for the kind of introduction, Miles. And thank you everyone for deciding to spend some of your afternoon with this panel. It's, I'm really excited to be here today. Broadly speaking, what we're seeing is a range of efforts to try to restrict voting, particularly voting by mail. And in many ways, what I'm, you know, interpreting this as is a kind of recapitulation of efforts that we saw to restrict voting after the historic 2008 presidential election, and in particular, efforts to restrict early voting which was disproportionately used by voters of color in 2008. So, let me back up and just try to set this parallel. The 2008 election saw extremely high levels of turnout. It saw record levels of participation at that point by voters of color. It was the first presidential election nationally in which Americans of color were over a quarter of the eligible electorate. We saw huge levels of turnout carried Barack Obama, the nation's first Black president to victory. And then after that, we saw furious efforts to restrict access to voting, and not across the board, not in ways that would have hit all segments of the electorate equally, but which seemed surgically targeted at the means of participation that were used disproportionately by those demographic segments of the electorate that had emerged in 2008 and early in person voting was a key target after the 2008 presidential election. We saw in the early 2010s cut backs on early voting in states like Florida, Georgia, North Carolina, Ohio, Wisconsin. The ACLU, where I worked, was involved in litigation in a number of those states. And what I think is really interesting is that all of these states were very eager to expand early in person voting 10 years earlier in the early 2000s. That was a period of time in which early in person voting was disproportionately used by white voters. 2008 flipped the script. The Obama campaign was very successful in mobilizing its base to turn out to vote early and to do so in person. And in a number of these states, it was the first election in which voters of color and Black voters in particular disproportionately used early in person voting. Florida, I think is the most notable example. The 2008 was the first presidential election in which Black voters were more likely to use early in person voting than white voters in Florida. Over half of Black voters in the 2008 presidential election voted early in person as compared to I think about 26% of white voters. And after that, the Florida legislature responded by cutting five days of early voting and most notoriously, eliminating early in person voting on Sunday before election day which was a time that was very significant for Black churches, for souls to the polls activities, Black voters about 20% of the electorate in Florida but were about 30% of early in person voters on Sunday. So, after we saw a change in the demographics of vote method choice in the 2008 election with a shift with voters of color and Black voters, in particular, moving towards early in person voting, we suddenly saw efforts to restrict that means of voting. We're seeing a similar, we're seeing similar beats in the post 2020 election story. As Miles noted, 2020 had the highest presidential election turnout in terms of sheer number of voters in American history. I think in terms of turnout rate, it was the highest since the 1900 presidential election. So, more than a century, and we saw of course, more absentee voting than ever, I think primarily due to the pandemic, but also because a number of states had loosened their rules on voting by mail. A number of states were administering no excuse absentee voting for the first time in a presidential election including some important battleground states like Michigan and Pennsylvania. Now, before 2020, we didn't see many attempts to restrict voting by mail. If anything, we saw kind of a bipartisan consensus around making voting by mail easier. More and more states were offering no excuse absentee voting. It had passed most recently in Pennsylvania where a Republican majority legislature had enacted a bill passing no excuse. In states that enacted strict voter identification requirements, something that's been quite controversial, a number of states actually exempted absentee voting from voter ID requirements, states like North Carolina and Georgia. So, we had kind of a broad bipartisan consensus on making voting by mail easier. The one exception to that I would say is in the area of ballot collection assistance efforts, what's sometimes referred to pejoratively as ballot harvesting. There have been some efforts to put limits on that but for the most part, eligibility to vote by mail and the ease with which people could vote by mail, those were things where access was expanding over the proceeding decades. Now, historically speaking, I think most political scientists think that no excuse absentee voting hasn't helped one party more than another, but I do think that the demographic data bears out, bears this out that white voters usually were more likely to vote by mail than voters of color, but like with early in person voting in the 2008 election, the 2020 presidential election flipped the demographic script. If you look at early analyses, they suggest that there was significantly higher rates of voting by mail by voters of color and Black voters, more so at least, in previous elections but higher rates when you compare it to white voters. And now all of a sudden, in the wake of that, we see restrictions being proposed in states around the country to limit access to voting by mail. We see Iowa considering legislation to reduce the period in which people can request absentee votes and to ban elections officials from sending out absentee ballot requests affirmatively to registered voters, something that the Iowa Secretary of State, to his credit, did for all registered voters in advance of both the primary and general elections in 2020. Florida is considering the elimination of advanced registration for absentee voting for multiple elections. Some states require you to request an absentee ballot for each election. Florida is a state where you can do that for multiple elections simultaneously and not have to do it again. Arizona actually has a permanent early vote list which is essentially a list that allows you to automatically receive an absentee ballot. You're sort of say, you know, telling the state, "I want to vote absentee from here on out." And most people in Arizona cast their ballot by mail. The state has considered, but apparently has rejected legislation that would purge that list where if you didn't vote in a certain number of elections, you would be kicked off of the permanent early vote list. But I understand there's still a bill pending that would require people to notarize their absentee ballots which is pretty restrictive when you think about it. And then I'm sure we're going to talk about Georgia since we have, because we have Senator Orrock here with us but I'm sure folks have read about the range of restrictions that are being considered in Georgia including the elimination of no excuse absentee voting and identification requirements for both requesting and then returning an absentee ballot. So, what I think we're seeing broadly here in 2020, or in the post 2020 environment, is very similar to what we saw in the post 2008 environment, high levels of participation by voters of color, and then a direct attack on the means of participation that those voters used.

Miles Rapoport: Dale, thanks. That was great. Wendy, I'm going to come back to you about the last 10 year trends shortly. But let's go to Nan, Senator Nan Orrock, Georgia elections were interesting in 2020 to make the under, pretty much the understatement of the century, but one remarkable event was that Republican election officials like Secretary of State, Brad Raffensperger, standing up, stood up fairly courageously, I think, to President Trump's efforts to undermine the election. But it seems like that was like a momentary thing that now we're going back to efforts in Georgia to restrict the vote, as Dale said, particularly of African Americans. So, why don't you, as a kind of close in observer of what's going on in Georgia, fill us in on what is happening in Georgia today around elections.

Nan Orrock: Thank you, Miles, and boy what great remarks we've heard from our earlier presenters. Thanks for that. Yeah, this trend has a long and dark history. And of course, we all know the battles that were fought and the people that were wounded and died. And as Dr. Reverend Joseph Lowery used to say, you know, we've bled too profusely, marched too long, to, and lost too many lives to stand by and let them reverse our access to the ballot. And in 2005, Georgia became, and the experts correct me, if I'm wrong. But to my knowledge, the first state in the union to pass a voter ID legislation. We did walk outs. We did talk ins. We brought manacles to the well of the senate to stop that, those, that draconian voter ID. And we saw it spread like a virus throughout the nation. And sometimes they caught 'em red handed. When that Pennsylvania Republican leader said, "Well, we passed that voter ID bill "and now we're going to win all our elections," or whatever, I'm misquoting, paraphrasing, but it became increasingly clear this wasn't about voter ID. This wasn't about cleaning up the voting process. It was about blocking access and just like the poll tax was, so down here in Dixie land, you know, the shadow of the plantation casts a long shadow over the century and a half. So, that was put in in 2005. And then as you described Dale, we saw in the late '00s that there was a recognition or by the Republicans that, "Wait, we can get out our vote by absentee ballot." And they put this very, very open ended process in where you can vote by mail and do early voting and not have to have, you know, without an excuse, or without being ill or being old or whatever. They really opened up access to early voting and absentee ballot casting. There was a change of heart in this decade that we just completed. And that was when our current Governor, Brian Kemp, was the secretary of state for about eight years. And in that period, he, the ACLU had to just sue him and the other voting rights groups over and over, he was in court. He was the one that introduced exact match signatures here were, or exact match names where if you had a, anywhere any ID existing that had a wrong middle name or was the name identical to someone else's, they were purging the rolls by the hundreds of thousands. And when the courts would get an agreement with them, no, don't do this anymore. Okay. We'll agree to that. Then they would come back over here to the legislature, the secretary of state, and get a bill passed to allow him to do it. So that, and at the same time, what was happening is that we were building up the infrastructure of the advocacy community to get out here and get people registered, educated, turnout and our numbers were going up of the people registered and the people engaged in the electoral process. Now, today, an early count, maybe a week ago, I had 30 bills that have been introduced on voting in Georgia. And we've only been in session for scarcely over a month. We went in the, you know, the second Monday in January, and here we are, we've passed Valentine's day and headed towards St Patrick's day and the bills keep flying. And today one was introduced, known as the omnibus bill to in the House. And as I was telling my panelists, 50 page bill, and the people that are on the committee got it maybe 45 minutes before the meeting. And it is, as Wendy pointed out to me, Sunday early voting would be eliminated, the souls to the polls that has been so successful. We live in a state with a growing minority population. Georgia is about 33% African American and a growing Hispanic vote, the Asian American vote soared in terms of the turnout of that population here in our historic 2018 elections when the governor's race was, Stacey Abrams was challenging the secretary of state Kemp for the governorship and narrowly lost that. So, now we're in the battles to we're trying to lessen barriers. We in the democratic caucus that I'm a member of, whereas the GOP that runs the state at this point, continues to create barriers, introduce bills to create barriers. And there is, as you can imagine, there are 30 of them, and there's another omnibus that's threatening to come in on the Senate side. So and they have early morning meetings, seven o'clock meetings to vote these bills out in the last two days in the Senate and didn't live stream it, didn't allow anybody any access then brought the bills up in the big committee today for votes and wouldn't allow any witnesses because they said, we had those witnesses, whoever wanted to come out at seven o'clock on Monday morning, or on Tuesday morning and had a fine old time. So we are, the battle is joined here in Georgia, massive turnout rates in the November '20 election We've got 7.6 million people registered to vote in Georgia and the voter registration efforts go on year round here. We, it's just accurate to say we don't have the votes to defeat these bills in the main and the next year we have, 2022, we have our governor's race, again, Stacey Abrams will be up against the former secretary of state. And we have as, Miles as you pointed out, this incredible, Georgia becoming the epicenter of the political universe. As we moved into this election for two Senate seats, which is a rare bird. And those early January elections put two Democrats in the Senate that made the Senate 50-50. So it, no rest for the weary, as they say. We're not, we have not sat back and drawn a deep breath and laid down for a nap, but we're back on the battlefield fighting and educating the voters, educating the people of Georgia about the efforts to turn back the clock and hollow out democracy with these bad bills.

Miles Rapoport: All right, we'll be following along with you then, see how this all turns out. I'm mindful of time. And I want to remind people, if you want to have ask a question, please go to the Q and A section down. I see some questions there, but there's room for more. Wendy, let me come back to you. Dale was, Dale did us a kind of good historical favor of going back to 2008 and 2010 and what happened. I know you have been tracking, you've been in NCSL for 10 years and you've been tracking election changes since then. What are you, what's your, what, I've actually made the case that, you know, that there has been a lot of good progress as well as voter suppression efforts over the last 10 years and that that has had some impact on turnout. But what do you see? I bow to your expertise in the matter.

Wendy Underhill: Well, thank you, Miles. And I did bring a slide. So, I'm going to pop that up now, if I may.

Miles Rapoport: Sure.

Wendy Underhill: Let's see how quickly I can get this up for you. And instead of doing like Dale did, using 2008, I started in the year 2000 and I looked at what kinds of policies have changed since then? And I just think that the historical perspective is good. 2008 is a great starting point. 2000 is good. I think going back to 1950 would be good as well but here's what I've got for you. Voter ID in 2000, 13 States asked for a physical ID, and Senator Orrock, that, you were right about Georgia. These are mostly states that requested it but didn't require it. So, Georgia was the first out of the dock to require it. And now 34 states ask for some kind of a physical ID and there's different levels of strictness amongst these. But I will say that the conversation about voter ID is much quieter now than it was five years ago or eight years ago. Although right now, and you both pointed it out, the combination of where do voter ID and no excuse absentee voting or mail voting, where do they come together is kind of a hot topic. In 2000, hardly, no one had online voter registration. We were just very new at having the internet available to us. And now 40 states have that. Election day went from six to 21. Those are just two markers. We could look at automatic voter registration, which of course also didn't start then. But my idea is that I'm not sure that registration does increase turnout but it is certainly something that it's a gateway to voting. So, these efforts to make more options for how people can register have been increasing. And then I've got the numbers for the states that had early in-person voting and no excuse absentee voting then and now. And then on the all mail voting, we, only one state, Oregon had it in 2000 and now five states have it. I wouldn't be at all surprised if we're at six or seven at the end of this year, California, in particular, looks like it might be ripe for going in that direction this year. It did it last year on a temporary basis. And whether it does it on a permanent basis is yet to be seen. So, I guess the overall, you could say, that all states are making more efforts to clarify whatever it is they want, because there's more laws on the books for all of these things, but some of this is making the process maybe easier to, for the voter. And I'm thinking, Miles, about a bill I know you care about, it's that universal voting bill that's live in Connecticut. You know, there's a lot of different ways to do it. We don't have to just stick with these. These are just a few that I thought might help us to frame this as a 20 year process instead of what happened between '20 and '21, what happened from 2000 to now.

Miles Rapoport: Yes.

Miles Rapoport: Great. Thanks. That's a really great slide and an interesting perspective. Do you want to add anything further to that, Wendy?

Wendy Underhill: I'm good. I bet Dale will have something to say.

Miles Rapoport: All right. Dale, actually, I had a question that occurred to me and that is that, you know, you do a lot of business, the ACLU does a lot of business in courts. And my sense in 2020 was that, overall, the courts held the, you know, the courts did their job and over, generally speaking, protected voters, more than, but at the same time, you've got an efforts to make the courts more conservative. Back when Mitch McConnell and Donald Trump were talking to each other, they were working together to, you know, stuff the courts. What do you think is the real impact? What are we likely to see in the courts as the 2021 legislation goes through? And I guess you could add, what are we going to see from a very different justice department that we're going to have?

Dale Ho: I mean, it's hard to predict in advance. We don't know which of these bills are going to pass and what they're going to look like finally and what litigation might look like. I will say that the courts did very well and judges appointed by presidents of both political parties, I think, you know, held the line really against the kind of very baseless, you know, fact-free complaints that the Trump campaign was bringing to try to overturn elections results and, you know, viewed strictly from that lens, I think the courts really did a great job, better than a lot of our other governmental institutions in, you know, standing up for basic principles of democracy and not allowing sort of like lies and innuendo and very kind of, you know, I would say, specious legal theories to undermine the results of a free and fair election and maybe the most closely scrutinized election that we've had ever. And certainly, in recent years. I will say though, starting from the beginning, like I would think that's a pretty low bar, right? Like I would, I would expect the courts to do that and what the courts didn't do much of last year, I think, was respond to real concerns that, we raised a number of lawsuits and that others have as well about the threat to voting rights that trying to conduct an election under normal rules would have in the context of the COVID-19 pandemic. Right? A lot of rules that we have that normally are not particularly burdensome. Maybe they stop a few people from voting, requirements to get a witness to sign your absentee ballot, notarizing your absentee ballot, things like that. Some people stop, don't vote because of these rules, but probably in a normal election, not all that many. When you have the worst respiratory pandemic in a century and people are being told to stay home, well, you know, restrictions like that take on a whole different character. You know, challenges to those kinds of laws had, I would say, mixed success. And even where such challenges were initially successful in trial courts, they were often stayed on appeal and courts didn't do as much, I think, to protect people's right to vote in the very, very particular circumstances of the pandemic as I would have hoped when the pandemic began 10 or 11 months ago.

Miles Rapoport: And what about, any thoughts about what we're likely to see this year?

Dale Ho: Well, I, again, hard to say, 'cause I don't know what these laws are eventually gonna look like and we'll see what the legislative records turn up in terms of what these legislators are actually considering. I will say this though, to your question about the department of justice. The department of justice could hardly do worse than it did over the last four years. I think the administration filed a single voting right, case under the Voting Rights Act over the last four years, which you know, I can't, I don't think there's ever been a four year period with the DOJ doing so little to enforce the VRA.

Miles Rapoport: Okay. Tova, I'm going to come over to you. I know you've been monitoring, well, you've been monitoring the election system for years. I know that. But also monitoring the Q and A. So, do you want to sort of lead us off with a question from the audience?

Tova Wang: Yeah, I was just going to say also that Georgia and Florida make me feel quite secure that you, Dale and I are not going out of business anytime soon, can always count on them. So, yeah. So, a lot of people are asking questions that are similar to the one that you just asked, Miles, and I'll put it a different way. Dale, I know that you're saying that you don't know exactly what these bills are gonna look like in these states. So, it's hard to really assess where the litigation is going to be, but maybe would ask it as what types of measures do you think will be actionable and challengeable? Like I know, so, in the past there has been litigation when there have been cutbacks to early voting and elimination of Sunday voting, you know, which is blatant, right? I don't know that there's ever been anything about cutting back vote by mail 'cause I've never wanted to do that before. But, so what are the kinds of things that seem like that could be good lawsuits?

Dale Ho: You know, again, it's, I think kind of hard to say until we actually see it, but you know, the kinds of things that have been ruled invalid by courts in recent years are things like Texas' very restrictive voter identification requirement, which, you know, I think that ruling was very specific to the facts of Texas. In Texas, it's particularly difficult to obtain ID if you don't already have it, particularly if you're of lesser means. I mean, there are, you know, I think over 70 counties in Texas that don't even have ID issuing offices and Texas is a very big state geographically. So, if you don't have a driver's license, you know, to get to an ID issuing office in another county is quite difficult because you can't drive there because you don't have a license. Right? So, you know, a really, really restrictive requirement like that, where there are very, very significant practical barriers that completely prevent certain people from being able to have the requisite documentation or whatever, that could be actionable. North Carolina had a bill that was ruled intentionally discriminatory and struck down as unconstitutional in the 2016 election cycle. And I think what was particularly unique about that bill was the breadth of it. It wasn't just an ID requirement but it also cut early voting. It also got rid of same day registration. It also got rid of pre-registration for 16 and 17 year olds. It also required ballots cast at the wrong precinct to be discarded in their entirety instead of being partially counted for offices which the voter was in fact eligible to vote for like, you know, senator or governor or president. So it was kind of, I think the sweeping breadth of it and that every one of these things disproportionately hit black voters in the state that was ultimately persuasive to the court there. You know, if you get a provision, you know, a bill like these kinds of omnibus bills that are being proposed in Georgia or Iowa to pass then, you know, it's possible you could see litigation like the North Carolina litigation from four and a half years ago. If you get more targeted restrictions that just kind of make voting a little bit harder, narrow the window in which you can request an absentee ballot without making it altogether impossible for someone to cast one, I think those are the kinds of restrictions that will be more difficult to challenge in court.

Tova Wang: What about specifically cutting out Sunday voting as being racially discriminatory, which I think, Nan thinks is the case?

Dale Ho: It's kind of hard to see what the rationale for that is when, you know, it's been administered I think in Georgia for decades at this point, you know, accord in Florida in 2012 found that that would have a racially discriminatory impact without going into the motives of the legislature there. Now, that was also under a provision of the Voting Rights Act that is no longer operative, section five, pre-clearance provision. So again, I, you know, I like to be kind of lowercase C conservative in the way that I predict, you know, what courts will or won't do. And, you know, I try not to be a crystal ball here. I don't know what courts will do, but the elimination of Sunday voting seems kind of like a red flag to me.

Tova Wang: Yeah, me too. Wendy, one thing I don't think I heard you bring up and maybe not any of you, though who knows what is on the docket, but it's the purge issue and the issue of purges as another big thing that has come up and on the voter ID issue also, how much do you think it's, that they've moved on to other things, as opposed to all the places that are gonna pass ID laws have already done it. 

Wendy Underhill: Okay, I think you're probably right that the number of states that have voter ID laws is, is about as high as it's likely to go given the political landscape. So, that was a conversation that took place. Most states have gotten to where they need to be. That doesn't mean that there are Republican led states that don't have it and Democratic states, I might have to think about that, that do have it, but I think that issue, other than the way that it dovetails with absentee voting is primarily, again, fine tuning. Do we want to add a kind of ID to the list? Do we want to remove a kind of ID to the list? It's mostly fine tuning other than whether we should need to do something different with absentee ballots. And then your other question was about list purging. And, of course, we would call it list maintenance where I live and every state has the floor set by the national voter registration act on how they do it and how they enact that can be a little bit different but there is protections there against last minute purging. And there's a couple of variations on how to do it. And we do see some laws on that. But one I would offer to anyone who is thinking about wanting to have really clean lists is one way to do that is to look at the electronic registration information center, know as ERIC. So, that's a consortium amongst the states where they can compare the voter lists. So, if there's a Wendy Underhill in Kansas and a Wendy Underhill in Colorado, it doesn't kick that, either of those Wendy Underhill's off of the list but it does call to the attention of both Kansas and Colorado, that there could be a duplication and then both states can explore, does she still live there or not? So, it's a way to clean the list so that I think has attraction for both parties. And it's certainly been growing. I think we're at 30 states now. So, in the other 20, if you're thinking about list maintenance and making sure your rolls are as clean as they can be by the time you start to get people to the polls or send out ballots, that's an option to consider.

Miles Rapoport: Tova, let me jump in for a second and just ask Nan to follow up on that. Because I think Georgia, as I followed it over the years, it's just been like a whirlwind of argument and back and forth over the purging issue, you know, the exact match issue. I know that there were 53,000 voters who were held back because they might, I think I saw a statistic a few years ago that more people were purged than actually were registered over a two or three-year period. What's the status? And how well do you think the fight against unfair purging has gone and is going in Georgia? 

Nan Orrock: On board. Each of, it's death by a thousand cuts. And Dale was describing kind of small, narrow, targeted. We're gonna change this. We're gonna change that. We're gonna change this. And when you're running race, when you're, when the races are being won by razor thin margins, being decided with a razor thin margin, it really does. It really does, if you put enough of those together, and you have drawn blood, you know, you've put the stake in the heart. And so they, these bills are not cleaning that up. And it's very interesting. Our secretary of state, as Miles pointed out, you know, had the courage to stand up against the abusive efforts of Trump to get in here and dominate the situation and pressure election officials, Republican election officials, up to, all the way up to the governor to change the outcome of the vote in Georgia. I mean, that's gotten national publicity over and over, but he, now that the elections are coming up, the next elections, the Republicans that don't really claim that Trump won here or that there was a miscount, they instead say, "We've got to make, we've got to modernize our system "so that people have confidence again in our elections." And then they, and in doing that, they start with these whacking away at a bit by bit by bit, no vote on Sunday, less than, that move, you know, reduce the window in which you can request an absentee ballot, that is almost surely going to pass. And I would point out another dynamic that's at play here in Georgia, and that is that they attack and pursue legal attacks against the nonprofit groups, the voter registration, voter rights organizations that are out here mobilizing and active. I know, Wendy pointed out that the findings in recent years are that everybody that you go out there and finally get to register, you know, get them to come out and do that, do the deal. That doesn't mean they show up on the voting day, you have another whole entire challenge to keep those people engaged and go back to them and get them out casting a vote by one method or another. So, the work of those groups is very, very important, and what, the group that Stacey Abrams formed here and that was chaired by Reverend Warnock, who's now in the U.S. Senate, New Georgia Project is being demeaned, accusations being made in the press by the state elections board that's dominated by Republicans, investigations launched, and this is really old hat here in Georgia. The, because you do that to weaken the capacity of the organizations to get out here and do the job that they're pledged to do that's their mission, which is to, you know, identify the unregistered, to get them registered and then work with them all year so that they turn out on election day. And that capacity is sharply eroded when you've got to be paying lawyers and showing up in court and fighting the battle in the media. All that's been launched since the January 5th election, just to tell you how big the stakes are in 2022. It's our, all our statewide officers, Trump has said, he's going to come in and personally take down our governor because the governor would not cave to him. Raffensperger is, some call him, you know, an endangered species, that his winning, the secretary state winning after standing up against Trump in our state is going to be impossible. And I can't measure, but I can't quantify it, but it's definitely there. And that is the alternative that, the alternative narrative, if they want to block us from voting, if they want to make it that hard, we're going to vote no matter what, there's that impact. But then there are others who say, "I'm not going to go down there to my precinct "and get embarrassed and get my vote challenged "and given some bogus provisional ballot "to fill out instead of a true ballot that I'm casting." So, it cuts all kinds of ways. And the electoral, I mean, the court battles that are being fought are critically important. And Miles, back to the one of what's going to happen with the, it's unresolved about their being able to get out here and whack away at the, in these purges. They've been doing it now in abundance for some years and we all know what a blow it was to democracy for the courts to erode the Voting Rights Act. And so, the, I guess it's House Bill 1, House Bill 1, the John Lewis Voting Rights Act to restore that bill to its former potency and give us back protections. As we move forward facing reapportionment, is tremendously important to get those guard rails re-established that so many fought and died for and that were in the law for years and they need to be restored.

Tova Wang: Yeah, actually, there were a few questions in the chat. I was going to get to that about HR 1 which is different than, then there's the John Lewis Bill SB 1, which if you haven't seen, you can just really go across the board and all the kinds of voting reforms you might want to see to make voting more accessible for everybody. So, if anyone else wants to say anything about that, but I also just wanted to follow up and ask the efforts to restrict voting by mail, which is the new thing, right? 

Tova Wang:  So, the efforts to restrict vote by mail that are suddenly the new thing this year and, you know, hadn't really come up in this way before is a little bit strange considering the approach to vote by mail in the past and also possibly, might come back to bite them politically. I don't, so, my thing is, and I'm trying to look at this as whether the thing, the way people voted during the pandemic is going to be the same, they're all going to say, "Oh, I love voting by mail. "I'm going to vote by mail forever" or they're going to revert back to pretty much the same patterns or closer to the same patterns as before, as we know, African American voters had historically voted in person at much higher rates than white people. And then the reverse was true. Whites voted much more a vote by mail. So, I don't know how any of you see that playing out.

Wendy Underhill: I guess I'll offer that, in fact, last year it was partly the decisions that election administrators all the way up to governors and legislators made on what was available to voters. But more than that, it was the choice of the voters to make use of already existing options that they just hadn't accessed previously. So, there were some changes that were just temporary. And there was that the kind of thing where you mail out an absentee ballot application was kind of a 2020 novelty. And as Dale pointed out, at least in Iowa, there's a bill to not permit that but voters have choice already, whether they stay with what they got, did they like their experience or not? I guess I don't know how to know that yet.

Nan Orrock: Well, you know, Wendy, if I could, it's interesting because the governors of, see, are divided on that question of doing away with no excuse absentee voting. They're not, the top leadership are not all on one page. And that's based on knowing that people have really utilized and embraced voting by mail and could resent no matter what party they're in the fact that that access is now denied to them. So that outcome on that question here is all wrapped up in the politics of the state in this current setting. And of course, we just heard that it was announced that former Senator Perdue who was defeated in the runoff elections from his seat in the U.S. Senate has filed papers to run next year against Reverend Warnock to secure the Senate seat. That will be on the ballot then. So, it'll be the clash of the titans in Georgia. And we appreciated all of the engagement from around the country in working to defend democracy here.

Tova Wang: Yeah, Nan, that was actually one of the questions. Well, actually from a couple of people is, how can we help you from outside? But I'm not, you know, I'm not sure what the strategy is on that. And I just want it to leave open, and I include Miles in this. If anyone wanted to say anything about HR 1 or SB 1 or the John Lewis Act and whether, what the prospects are but also because a lot of people asked about it, having national standards is actually preferable in general, and then Miles, I know, I think we need to go back for anything closing the panelists want to say.

Dale Ho: I mean, these are huge bills with lots of stuff in them, and yeah, I guess I'll just say that, you know, there are some, there are a few provisions that would, I think, effectively moot a lot of issues that get talked about as you know, concerns about voter suppression, you know, election day registration, for example, you know, that's something that, you know, is actually, has a much longer vintage in this country than automatic registration which a lot of folks have been talking about, right? A lot of states adopted election day registration in the 1970s. These are states across the, so, you know, kind of red blue spectrum, right? You have some very red states with election day registration, some blue states, a few purple ones in between, voters who have access to it, like it, young voters, in particular, don't understand why they would need to like print out a piece of paper and find a stamp and mail it to somewhere, you know, three or four weeks before an election in order to vote. They're used to, you know, prime now, prime yesterday. So, it's just to kind of reform that makes a lot of sense. And to the extent that we're worried about things like erroneous voter purges, right? Voters getting knocked off the rolls, election day registration gives people a chance to fix it. You're worried about like exact match systems where someone, you know, tries to register but because there's a discrepancy between their registration form and their DMV records, again, election day registration allows you to fix that, automatic registration too, I think deals with concerns that folks in the more conservative end of the spectrum have about out of date voter rolls, people being on there when they've moved, automatic registration kind of fixes that automatically so that you don't have people as quote, "Dead wood," on the rolls whose information may no longer be totally accurate. So there are, I think just important pieces in HR 1 that would moot a lot of the both of the voter suppression and the so-called voter fraud concerns and bring our election administration system up into the 21st century. I mean, it's only 2021 now. So, we've had 21 years to get into the 21st century. I think we ought to be able to do it.

Miles Rapoport: Yeah. You know, needless to say, I think HR 1 and SB 1 and the John Lewis Voting Rights Act, you know, these are all going to be major discussions in Congress and we will absolutely, you know, have events that are about them as it moves along. And the other thing that's obvious is that, you know, as the legislative session, some of the sessions, some states are in session all year long but most of the states, their legislative sessions will be finished by May or June. So, we'll return to this at that point and just see, we'll have a much better sense of how all this has played out. Right now, all we're seeing is the opening acts of a several month drama at the state level. But we'll, whether we have you back or some of your colleagues in the movement, we'll return to these issues for sure. So, let me before, I want to make announcements about a couple of events, Tova, thank you very much for your monitoring work. But as I promised, I want to give all three of you a chance to make any last remarks that you want to make, something you want to leave us with. And Nan, we'll start with you.

Nan Orrock: Well, I would, I would say that we have seen in our state, the outcome of the January vote for the Senate seats, it is not an isolated outcome. Lovers of democracy have been investing for, mm, I want to say almost 20 years, but have been building, putting together pieces of infrastructure, philanthropy has been an important part of that to get nonprofit efforts that are nonpartisan efforts out here to engage with the population to get out here and get connected in as voters and also to coordinate those efforts so that everybody's not over in silos, you know, going to the same areas trying to register voters and missing other areas. So, there's been this, there's been broad investment in developing infrastructure in our state to mobilize people to vote and it's been nonpartisan. And that has been a very significant piece of this. And of course, the parties get out here and outreach to their voters and speaking to voters. But that has been an element of that that is new to the stage in Georgia over the last 10 to 15 years. And it's been a real plus and very positive. And those non-profits worked across the state to spur turnout, not advocating for a candidate, but advocating to get out of here and have a voice in your government and in democracy. And that has been, you just can't understate how important that role that has been played by that sector. In addition to the usual cast of characters, candidates and the political parties, you know, that tee up for these clashes at the ballot box.

Miles Rapoport: Well, there'll be lots and lots of eyes on Georgia for the next two years, for sure. And I think going back and Tova's question about how you can help is to help build that infrastructure for sure. Dale, you're last thoughts for the audience?

Dale Ho: Sure, and here I'll steal an idea that, you know, is at the center of a professor at the Kennedy School, Alex Keyssar's book, "The Right to Vote," that the story of the right to vote in this country has never been a simple one of sort of progressive expansion nor is it a simple one of voter suppression. It's both those things. And sometimes it's those things, not just sequentially but simultaneously, you know, I, you know, one of the things that I think about sometimes is the fact that we're told this narrative that like the right to vote has kind of progressively expanded in our nation's history. And that's true, but it hasn't been linear. And it hasn't been unidirectional, you know, at the founding, there were states where, you know, we're sometimes told like at the founding, only white men who owned property could vote, right? Not entirely true, New Jersey, women who met the property requirement could vote, Black men who met property requirements could vote in a number of states, including in North Carolina which is kind of amazing when you think about it. That's a state that had chattel slavery, and yet, Black men who met the property requirement could vote at the same time. The 1835 constitution of North Carolina did away with that. In the wake of Nat Turner's rebellion, North Carolina responded by getting rid of voting rights for Black men. But at the same time they did that, they loosened the property requirements for voting for white men. You had an expansion of voting rights for some people and an altogether elimination of it for others. And when you look at today, 2021, you see this wave of laws that are trying to restrict voting rights. And yet you have more states than ever with election day registration. You have a tax on absentee voting, but you have, in Alabama, legislation that really has legs to make no excuse absentee voting permanent in that state. And it has the support of the very conservative Alabama Secretary of State, John Merrill, who's someone who's been an adversary for the ACLU in a number of times. So, what does that tell you? That just, that the right to vote is, the story of the right to vote in 2021, as it has been throughout American history, is a complicated one. Every story of progress has a story of retrenchment and we're seeing both things at the same time.

Miles Rapoport: Dale, thanks. And by the way, Alex, Alex wanted to make sure I said hello to you before. So, I've been negligent up until now, but hi. Wendy, and you get the last word.

Wendy Underhill: All right. I'm thinking that what we could think about is, what can we support? I mean, there's a lot of attention to what might people on the line oppose but let's think about what we can support. And one thing is we can support our poll workers and our election officials. Those folks came out and did a fabulous job in 2020 and they didn't get nearly enough credit. And if we could just, you know, give a pat on the back to everyone who helped serve to make that election work and figure out what their needs are to support them in the future. Likewise, if we could support election infrastructure and funding, whether that's funding from the federal level or state level or county level, note that this is a foundational piece of democracy and somehow government needs to pay for this and then support verifiability. That's not, this would be the post-election audits and this would be the transparency on allowing people to watch logic and accuracy testing and anything else. So, supporting verifiability with paper ballots and such things is something that we can probably all agree would be a good thing. And then Dale, you gave us a great hand. My last comment was going to be, keep your eye on the long-term, which you're obviously doing. So, that's what I've got, Miles.

Miles Rapoport: Great. Well, listen, the three of you have been fabulous. And really, really happy for you to be with us here in the Ash community. All right, well, listen, I hope you found today useful. So, please join us for future events, sign up at the Ash website and thank you all for joining us. 


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