Brian Kruger
Welcome to Richard Helppie’s Common Bridge, the fiercely nonpartisan discussion that seeks policy solutions to issues of the day. Rich is a successful entrepreneur in the technology health and finance space. He and his wife Leslie are also philanthropists with interest in civic and artistic endeavors with a primary focus on medically and educationally underserved children.
Richard Helppie
Hello, and welcome to The Common Bridge. We have arguably the most important topic that we’ve ever covered, and that is voting right and voting freedoms. Now, if you’re listening to our partisan talking point, tribal reporting, you think what we’ve got is a battle between voter fraud and voter suppression. Some might think that one side wants to set excuses why they are going to lose the future elections, and the other one is coming up also with their list of excuses. There’s legislation at the federal level, in particular, the H.R.1/S.1, called the For the People Act, there is the VRRA, and also just today, the Freedom to Vote Act. And in the state houses, there are many voter regulation bills that are being touted and being captioned as voter suppression or voter restriction. Now, take note that not much of the news reporting, or indeed a lot of the political commentary ever says anything about what’s actually in the legislation, what the history has been, if there is a problem that’s trying to be addressed, or are we just kind of slowly moving toward the future? Fortunately, we have as our guest today, as you heard his introduction, Professor Derek Muller of the University of Iowa. Professor Muller, it’s my honor to welcome you to the Common Bridge. Thank you for joining us.
Derek Muller
Well, thank you for having me.
Richard Helppie
Our audience likes to know a little bit about our guests. Now, what were your early days, like? Where’d you grow up? And what was some of your academic preparation and, maybe some of the highlights of your professional arc?
Derek Muller
Sure. So I grew up outside of Detroit, in Royal Oak, Michigan, and then went to Hillsdale College for undergrad and Notre Dame Law for law school. And you know, after that I practiced for a few years as a clerk for a federal judge in St. Louis, Missouri. And then I practiced with a law firm called Kirkland and Ellis, a large law firm in Chicago doing litigation work. And then after that, I started my academic career. I went to Penn State for a year as a visitor and then spent nine years at Pepperdine in California. This is my second year now out here at the University of Iowa. My research is election law, I think a lot about how states go about administering federal elections, federalism concerns, but I think about presidential elections, I think about redistricting, I think about campaign finance and the Voting Rights Act, you know, a little bit of everything when I talk about election law, but I also teach a variety of litigation classes, from civil procedure to evidence to federal courts.
Richard Helppie
That’s, I think, an important place to start just the foundation. And what does the constitution say about elections and who controls them? And it sometimes it seems, certain states were kind of on a watch list that the feds had to approve. So can you maybe just educate our audience on what the Constitution says? And maybe where do we stand today?
Derek Muller
Yeah, so surprisingly, or maybe not surprisingly, we think about the Constitution and maybe we spend a lot of time on things like the First Amendment and the Second Amendment, right. The Constitution has a lot of details about how the government is formed, and how members are elected to serve in that government, in addition to the fact that many of the amendments of the Constitution after the Bill of Rights relates specifically to the right to vote or rules and regulations about how the government operates. So I think there are a host of areas of the Constitution, we can think about, but I’ll focus on a couple in particular, and the things I think that are under debate, as Congress thinks about regulating some of these, you know, election mechanisms. The first is that the states are sort of the default entity to administer elections. The thought is they are going to be in charge of running congressional elections, and if you think about that, it seems a little bit strange in one sense, right? When you think about the federal government, we think about it sort of affecting everybody and especially a presidential election are very national in scope, but the thought was that the states would be the default place to determine how to administer elections. But Congress has the power to step in for congressional elections, and regulate the times, places and manner of holding elections. So it has that residual authority. It’s actually been, I would say, for the most part relatively reluctant to use that authority in the past. It has done so with some overseas and non citizen or I shouldn’t say non citizen… uniformed and overseas personnel, those voters who can vote by absentee, it’s updated some voter registration forms, Motor Voter in the 90’s, so there are a handful of times where Congress has done that. But for the most part, most election laws are still administered at the state level, and certainly for state elections. But that did change, you know, especially after the Civil War, as we began to expand the right to vote, expand enfranchisement, where the Constitution now guarantees in the 15th amendment that the right to vote should not be denied or abridged on the basis of race color, or previous condition of servitude. It extends to women, to not paying a poll tax, to those over the age of 18, and so we’ve actually codified in the Constitution, a number of places to ensure that there are voting rights for more and more people in the United States. And Congress has sometimes used its authority, you know, especially after the Civil War, to enact laws, like the Voting Rights Act, and some others that would help protect the right to vote for all Americans, regardless of race, for instance, and thinking about ways that Congress could step in to enforce those guarantees in the Constitution. So most of the debates today, I think, that we’re having about the congressional role or appropriate role, are under sort of those two places in the Constitution. And a lot of the other things the states are doing, you know, either they have kind of outright authority to do in state elections, or they’re sort of doing it because Congress has not acted.
Richard Helppie
And I know that we’ve heard about things like literacy tests and poll taxes, and then blocking of polling places. What else and and have those things been remedied? And do we have evidence today of voter suppression that’s going on yet, in 2021?
Derek Muller
Yeah, I mean, it’s a… it’s a loaded question. When we use a phrase like voter suppression, right, but let me start with this: yeah, I mean, I think it’s fair to say, it is easier to vote in the United States today than it has ever been in American history. And I want to start with that baseline. I think there are a lot of important discussions happening right now about what the right to vote ought to look like. But to put in a historical perspective, as you pointed out, there were literacy tests, there were poll taxes, there were, you know, pretty limited opportunities to register to vote in some places, or, you know, the old voter registration require you to register two weeks before every election. So there were a lot of things that were pretty fixed and restricted when we think about voting, not even, not even the people who are eligible to vote, but to think about the mechanisms. Nowadays, I just think about the sheer breadth of opportunities to vote, we can take Election Day on its own. You know, all states have some form of absentee voting, vote by mail. In some places, they even mail you the ballot without even you requesting it if you’re a registered voter. In other places, there’s no excuse absentee voting. And in other places, the excuses are pretty minimal, which is I’m not going to be in my polling place on election day. In the last 20 years, states have developed early voting sites, early in person voting, which is kind of the merger of the security of in person voting, with the convenience of absentee voting. We have extended opportunities to drop off ballots at the county or drop them in the mail. Some states have extended the deadlines of absentee voting for months in advance of the election. So I think about all these things as sort of many, many rich, robust opportunities to participate in the political process. So I think about that in the historical perspective, and in my judgment, a lot of things that we’re fighting about, are pretty much at the margins, as we’re thinking about, you know, should we be tweaking early voting days, the length of hours that the poll places are open, how long the absentee ballots are being mailed out? I mean, when you think about the many, many opportunities, there’s no question that some of the laws that are being disputed today, do trim some opportunities. And the question is how we sort of place those changes in the greater scheme of things.
Richard Helppie
I look forward to that part of our interview today. And let’s take the other thing that’s been in the news, voter fraud. Now, in general, I will get to 2020 in a bit, but historically, has the United States and particularly in congressional or presidential elections had voter fraud, how would we know if there has been or not and how have they been investigated? And what’s been discovered over the years?
Derek Muller
Sure. So voter fraud was more common in the United States in previous eras, for various historical reasons. You know, in the 19th century, it was because polling, you know, states didn’t print their own ballots and administer their own ballots, which you’re familiar with the phrase stuffing the ballot box. People could show up with their own ballots act like they’re putting one in and putting 10 in. So the arrival of the Australian ballot as we call it, which was developed in Australia, where the state prints and administers the ballot and hands out one per voter greatly reduced fraud. And then you had some political machines in the early 20th century. And even you know, you talk about the, you know, the the biography of Lyndon Johnson, among others in Texas in the 40s and 50s. There were certainly sort of political machines that would, whether it’s bribery, whether it’s impersonating other voters and showing at the vote, at the polling places, there were some elections that had such problems in the past. Today, it just becomes more and more difficult to commit fraud. One is the sheer scale, the United States is much larger, now. There are so many people here that the size of Congress has not increased in 100 years. And so you have, you know, 10 to 15 times the voters in a single district. And it’s the same, the same is true in many other elections. So the sheer volume of votes you have to manipulate to change an election is really difficult to accomplish. Let’s say it hasn’t been done occasionally. So in 2018, there was a congressional election in North Carolina, that turned on a couple 100 votes that, you know, a political operative had essentially been paid to help fraudulently solicit and complete absentee ballot forms. Usually these voter fraud instances happen in local elections, where it’s a small number of people, and it’s easy to sort of intimidate or try to impersonate a handful of voters. But at scale, what I described, right, trying to get to hundreds and thousands of votes, it becomes very difficult.
Richard Helppie
In this time where we’re identified if we want to buy Sudafed, or spray paint or you know, even today to go into a restaurant in cities, and this morning, one of my favorite charities where we drop off things that said, Don’t come in unless you can prove that you’ve had a vaccine. So we’re getting past that era where someone can misrepresent themselves. And if you think about the famous hijacker, parachutist DB Cooper, you know, we never know for sure who the guy was. Well, today he wouldn’t be on the plane without us knowing you know exactly who he is. So let’s move ahead to 2020. There were claims of election fraud that actually started way before the election. There were suits brought, they were all shot down in court. I believe universally–I don’t believe any are ongoing, please correct me if I’m wrong. And then the attorneys were sanctioned, which is a fairly rare and extreme measure for the courts to take to tell the attorneys you filed something that that wasn’t true. Is there more to this story or was this whole, you know, stolen election thing, just a sham?
Derek Muller
Yeah, I mean, I think we can think about this in different ways. So before the election, there were a lot of concerns about– I’ll use the term irregularities, right? Or there are concerns about you know that a jurisdiction was changing its rules late in the game. And for proponents of it, they would say it’s a pandemic, the ground is changing, we want to provide as many opportunities for voters to cast their votes in a safe and effective manner. And for those challenging it, they would say, well, look, you can’t just change the rules, if you don’t have the authority to do so. Or you shouldn’t be doing them so late in the process, or Secretary of State, the legislature said one thing, you can’t say another. And so those cases were kind of mixed in how they were litigated. And then immediately after the election, I would say there’s sort of two phases, and they sort of bled from one to the other. The first is some questions about recounts–and wondering or, or even counting the ballots in the first place– suspicion about the count because it took a while for some jurisdictions that had a deluge of mail in ballots, and that weren’t allowed to start counting until Election Day. They had to rip open all these ballots and make all these signature comparisons. A lot of people were very skeptical of those things. So there was litigation, especially those first few days, I think, largely good faith litigation from people saying what’s going on. And they lost. But But those lawyers weren’t sanctioned. What happened is later in the month of November into December, people began to file lawsuits with increasingly wild theories. So the most prominent being that certain voting machine systems flipped votes from one candidate to another. And in most of these states, there’s paper ballots, right. We can go back and verify Georgia did a full statewide audit, for instance, of all of the paper ballots it had. So we know, you know, demonstrably in Georgia, among other places, that there weren’t machines just flipping votes. But when you make those allegations, without some support behind it, you know, lawyers have a duty of candor. And in a couple days after the election, they had a very limited time to investigate claims; courts are going to be a little bit more forgiving. When you’ve had four, six, eight weeks, and you say I have the proof and you don’t show it; courts are going to be much less forgiving. And that’s where the sanctions are.
Richard Helppie
You know, I wish that we had better reporting because it would seem to me that, you know, someone said for example, in Philadelphia, yeah, yeah, there were a lot of ballots that looked like they came in late, but here’s why. Or you and I share the home state of Michigan, and that, you know, oh, look at Detroit’s ballots came in late. Well, they always come in late. They collect their 463 precincts, and it’s my understanding, and correct me if I’m wrong, that Michigan cannot begin counting the absentee ballots until after the in person election. And if memory serves me correctly, there were times they said, not even any make any sense to open the absentee ballots because we have 5,000 ballots and the winner won by 50,000.
Derek Muller
Well, so on the last point, you know, every jurisdiction does count every ballot, even if it’s, you know, even if it’s a very wide margin, they want to make sure they have an accurate assessment for a variety of factors reporting to the federal government for future Voting Rights Act claims, among other things. So that certainly happens. But you’re right, Michigan, and many states have laws that don’t allow you to open absentee ballots until very late in the game. And in Michigan, they amended it recently to allow I think, maybe the day before, two days– I I’m gonna have the timing off on that. But there was a trade off actually, there’s a very specific fight in Michigan, that’s an interesting conversation to have. Michigan is also one of a handful of states that allows you to change your absentee vote up until the weekend before the election. If you drop off your ballot, or you mail it in, and you can show up at the polling, you can show up at the county, you know, two, three weeks later, the city I guess the way it’s administered in Michigan. Show up at the city two, three weeks later, hey, I actually want to vote for somebody else. You know, I this candidate said something that really offends me, I want to change my ballot. And they’ll let you! They’ll go in the system, they’ll cancel it say don’t when that when that barcode comes through from the absentee ballot, don’t count it. They’ll give you a new ballot and you can count a new ballot. So it’s a way of allowing you to change your mind very late in the process. The downside is, you know, Florida starts opening ballots two weeks ahead of the election and starts processing them. And by 11 o’clock on election night, almost the whole state is counted. In Michigan, as you point out, they’re just starting to open the ballots. And it takes a very, very long time, especially absentee.
Richard Helppie
Yeah, I think some states started saying they could open the ballots, they could load them into the system, so that but not release the tabulation so as not to affect the remaining voting period, but it was there. And to your point about the allegations of the machines not working. There were people on the fringes saying Oh, look at Antrim County, which is about 6600 votes. And as a true Michigander, I’ll say it’s up there. (pointing to hand) And, and they they had just not loaded a parameter file correctly. And once they realized that that was the case, they made the correction and it was done in hours. But that can became a central talking point from the Trump camp and from the far right.
Derek Muller
Yeah, it was a very, I mean, it’s very unfortunate that you have an error like that. And it’s, this is the thing that there is such we have such a sophisticated system now. But the problem with a very sophisticated system is so many pieces, one small thing can go wrong and screw it up. So yeah, they had changed the alignment of the ballot in Antrim county in a couple of places for some of the down ballot races. And that just totally misaligned the machine as it was counting the ballots. And so you needed to tell the machine, you know, when you see a black bubble here, you count it for Trump and the black bubble here is counted for Biden, right? And it was just that mistake, and that tiny little mistake made late in the day resulted in… and absolutely you know that the Secretary of State went back, they did a hand count of the entire county to make sure that the paper ballots all matched what the Election Day total was. And they found a couple of differences because the human eye observes things a little bit differently than the ballot. But it was a total, I think, a difference of 12 votes among the entire county. But you’re right, that it’s sowed immense distrust in the election process after those results were changed on election night.
Richard Helppie
So before we move into some of the state reactions, are there any known problems or suspicions about the 2020 vote that are still lingering out there? This is something– I mean, you devote your career to this–is there anything that we need to be worried about at this point?
Derek Muller
Yeah, so I wouldn’t say there’s anything that we need to be worried about. That is there’s nothing that I’m looking at from Election Day, that hasn’t been thoroughly investigated to say, oh, this is like a systemic problem that we need to think about in the future. Undoubtedly, there’s the same kinds of things we talk about over and over, which is, you know, we like to have paper ballots, and there are a handful of jurisdictions, you know, especially for voters with disabilities that have some systems that are electronic only, and we want to have more of a paper trail, right? But that that’s something that’s been happening in the United States forever. Or you mean about absentee voting, you know, the processing issues you identify, but also you know, signature matching is a very 19th century art, shall I say? Where were you know, we need (Rich: at best!) Yeah, when you sign off on the ballot or when you sign in for your voter registration, you probably aren’t thinking I’m creating a record that in the future will be used as the checking my signature. And so it’s a very imperfect system that requires, you know, these subjective election judges to make these assessments. And so some states, we can talk about this, you know, states like Georgia are saying, well, let’s move toward using the last four digits of your social security number, or your driver’s license number, that’s going to be the Id check instead of signatures. But, but there’s nothing I would say that came out of 2020, that I would say, oh, it absolutely dramatically has to change because there was this fault in the system.
Richard Helppie
And I know that our former president deliberately tried to shake people’s confidence and had the Justice Department involved, and I think they stayed within their boundaries. And, you know, the way that Attorney General Barr summed it up, it’s all bull sh**! You know, but it’s done a great disservice. But states have reacted, and they’ve revisited their voting laws and procedures. And the you know, part of that is, you know, in results. Okay, well, as your earlier point, things got loosened up because of the pandemic. And now what needs to be codified into law? Is there a number like how many states have made adjustments to their voting laws since the 2020 elections?
Derek Muller
Yeah, I mean, so there’s definitely, I mean, most states have enacted some legal change, you know, I would put in hundreds of laws, but most of them, I think, are either what you would say, are innocuous, or bipartisan or sort of consensus driven measures. You know, because after every election, you know, a lot of legislators only meet part time, and they meet, you know, in early, odd numbered years. So they have a limited window of time to accomplish these things. So some are codifying things– changes they made during the pandemic– others are, you know, making some changes about things they didn’t like about the pandemic, others are just developing laws that have long since been on the books, you know, that or that they’ve considered in previous sessions. So a number of states have done it. The question is, you know, I think, you know, as we’re leading up to, you know, what are those laws that are problematic, that are really causing concerns, what’s in them, as opposed to just trying to spit out a number to say, you know, 18 states have enacted 30 voter suppression laws or other kinds of unhelpful overall metrics.
Richard Helppie
Yeah, that’s the thing that really frustrates me and I think it frustrates a lot of people is that you hear reporting, saying the talking points of this or voter restriction laws, voter suppression laws. And I asked a question, really what’s in it, like, give, cite one part of one bill that you’re so against or so in favor of, and people just don’t? And that I think reflects the thing that we’re trying to combat on the Common Bridge, which is the increasing tribalism. It’s… we just kind of repeat their points that my guy said, or my side said, and the, you know, news reporting, that’s their business model, now. I know it’s hard to to really tease out motivation, but as you’ve looked at some of these changes, do you have a view whether the changes were meant to deny citizens or groups of citizens, specifically, the right to vote or to make it more difficult? Or is it just preventing cheating? Or is it just modernize? Like, did any states reduce their absentee voting or their ID requirements? Like we used to ask for your ID now, we’re not going to or we used to say you can vote absentee with no excuse. Now we’re gonna have to you have to give us a reason as any… like what went on?
Derek Muller
Yeah, so I mean, so I would say that there are a handful of states that did a little bit more to to trim back or make make certain voting opportunities more difficult. So I would… so I come from Iowa, so I can think about this. So absentee voting you used to be able to submit your your request for absentee vote voting, I think was 120 days ahead of the election. Now it’s 70 days. So that’s, that’s a little bit of an inconvenience, if you’d like to get it out there early. They used to mail absentee ballots 27 days before the election. Now it’s closer to 20 days before the election. You used to be able to mail the ballot all the way up until Election Day. Now it has to be received some period of time, or as to be able to come in after election day now as to come in by Election Day. It used to be that you could request an absentee ballot up until three days before the election. Now it’s about 10 days before the election. So in all those things, they’re trimming back on some of the absentee opportunities. Undoubtedly, you still have opportunities to vote in person, although they trimmed that back from about 27 days to about three weeks. You could still vote on Election Day, although they cut Election Day voting from 14 hours to 13 hours. Now, what I think proponents of the law would say is, look, we had so many opportunities. We had 14 hours of Election Day voting, that was the outlier. Most states have 12 or 13 hours and no one comes in that last hour. I’ve worked the polls– 8 to 9pm is the graveyard shift, right? So we’re going to trim that up. We want to sort of firm up the absentee voting and we actually think it’s a bad thing if you request an absentee ballot three days before the election. Odds are it might not get to you in time or get back in time. So, and maybe, you know, this is, I think, a sticking point between Republicans and Democrats. Republicans really have a mentality of we should all vote on election day, at the same time, the most secure manner, so we all have the same information. And many Democrats think, well, why don’t provide as many opportunities as possible over a long period of time, even if we have different pieces of information, because it gives the opportunity to participate to more people and more flexibility. And so in a way, there’s I think, genuine disputes about what the best way forward is in administering these elections.
Richard Helppie
Yeah, and look, that’s I think, again, that divide there I think speaks to this tribalism, you know, which I abhorr– red versus blue. If I’m going to vote before an election, why not just permanently mark me, I’m going to always vote for this party; instead of I’m going to weigh what the issues are, weigh what the positions of the parties and the candidates are, and on that day, go in and make that vote. You know, that’s my concern is that earlier and earlier it gets, the less and less real choice there is versus picking your team. And and that’s what I think is brought us to the precipice of a civil war.
Derek Muller
There is so much early voting and are things like our presidential debates have not caught up with that, right? A lot of presidential debates happen, when half the country has already voted very late in the process. So it does sort of suggest that there’s not really the deliberation happening, that we might otherwise want.
Richard Helppie
Well, after first presidential debate in 2020, there were more Americans retching on the floor losing their dinner than there ever has been. But also to your point about Iowa trimming from 14 to 13 hours. Nobody’s going after the states on the East Coast that have 10 hours of voting, or no absentee voting or no early voting. And that’s where I’m looking at again, is it suppression if you’re kind of coming closer to the norm, but you still have more opportunity.
Derek Muller
That concept is actually sort of deep seated in the Voting Rights Act. The concept of what we describe as non retrogression. And so we can think about retrogression as reducing opportunities. And non retrogression was something put into the Voting Rights Act to say in 1965, to say, “States”, you know, you sort of open you know, the the pitch about some states that were really, you know, really misbehaving in the United States, especially in the south to say “States” you can’t change your law unless you can prove that it doesn’t create retrogression in terms of voting rights opportunities. But that’s a really powerful mechanism. I think about a contrast, you know, I’ve taught about a contrast between New York and Ohio. New York, which for a long time had zero days of early voting, and Ohio after the 2004 election, very contested, went to 35 days of early voting, then trimmed that back to 28 days and got sued. And lost, originally, to say, well, you trimmed back from 35 to 28 days. But courts, they look at the baseline, they look and say, well, you went from 35 to 28, you’ve restricted opportunities, as opposed to looking at the zero days in New York and saying, Oh, so it is a funny world.
Richard Helppie
It is, and you know, look at some of the groups that are out there, one of them that’s kind of at the epicenter of the voter suppression allegations, very insightful, a guy named Mark Elias, who was involved with the Christopher Steele dossier. And now he’s got this group out there called Democracy Docket where he’s making a lot of allegations, most of it, which is insightful, and I’ve been following him and asking, can we see what’s in the bill, please. You know, every now and then we’ll get a link, but maybe not just talking about that particular group and all those others that are saying the talking point about their defending democracy? What are they alleging? And how do those allegations comport with reality? So I’ve heard fewer voting locations, ID requirements, etc. What’s really going on there?
Derek Muller
Yeah, I mean, there is to be frank, a lot of money for lawsuits. There’s a lot of money for lawsuits in the United States. So you can think about the 60 plus lawsuits that were filed by Trump supporters after the election, but, you know, there were hundreds of lawsuits filed in 2020, before the election about changes during the pandemic. And now, you know, anytime you know, in Texas, you know, enacts a new election law, within hours, there are five or six different groups, each filing lawsuits. So there is just tremendous money sloshing around out there to file these lawsuits and make these allegations. And the concerns are, I think, you know, they’re often not looking at the totality of the law. They’re really picking out a handful of provisions of a statute that they think may adversely affect the group that they’re suing on behalf of. So if they want to talk about ballot box drop off locations in Harris County, Texas, righ? If Harris County had, you know, which is, has a lot of Democratic voters and has a lot of racial minority voters, if Harris County had provided lots of drop box opportunities, and the state of Texas says we’re just going to have one per County, you know, proponents look at that, and they’re worried and they’re saying, I’m not sure that our voters are going to be able to participate as effectively as they were before. So you can say Is it is it suppression, because we’re now reducing opportunities that they have that are now gone, are saying we’re trying to provide standard uniform practices across the state, as opposed to whatever the local election official decides in the middle of a pandemic? And so that’s, I think, the crux of these disputes. And really, when it goes to court, it’s going to be a question of gathering evidence, how many voters does this affect? What are the alternative avenues available to them? How difficult is it for them to use those alternative avenues as opposed to the previous opportunities that were available?
Richard Helppie
And many years ago, I actually lived in Harris County, Texas, in Houston. And the geography is, sprawling. It’s a very, very big county, and there’s not very good roads, there’s not very many of them. So yeah, if everybody had to, you know, go to downtown Houston, that would be a gross inconvenience. So I understand that. But also, we’ve had people that are opposed to certain of the pandemic loosening, saying that look, if one group got their way, they could take 1000 ballots, collect them and do a drive thru in an unmonitored box at 3am with no form of voter ID on the ballots, and then claim well, Texas closed 750 polling places since 2013. All of this sounds pretty far fetched to me. But I don’t know if you’ve had any opportunity to look into those kinds of allegations.
Derek Muller
Yeah, I mean, I do think, you know, that we can take it like independent concerns, right to say, are ballot box locations sufficiently secure, right. And if that’s the problem, I think everyone can agree it should be monitored, it should be, you know, you should have particular, you know, safe safety devices that prevent you from taking stuff out of it or, you know, monitored with television, or with video cameras, you know, those are kinds of one discrete set of concerns. Another set of concerns are like people who round up and collect ballots. So this is often a contested proposition, you know, that opponents will describe as ballot harvesting. Proponents will say it’s ballot collection, right to say, listen, you should not give your ballot to someone who’s not in your household or a postal worker or, or a county official, because who knows what they do with it, they could destroy it, they could alter it, they could intimidate you, they could pressure you to vote a particular way. And there has been some bipartisan consensus about that in the past, maybe less so today, so there are these these intimidation concerns that have arisen in the past. The flip side are there are people who will point out to those who reside on tribal reservations, Native American reservations and say, the Postal Service is extremely infrequent and difficult to get to, we need to provide opportunities to voters in these extremely rural places, or far flung places with poor mail service and poor road service to be able to go out and service and collect their ballots. So everyone’s got a story about how we how we assess and balance these kinds of questions as we, as we make the judgments moving forward.
Richard Helppie
You know, in other related topics, redistricting, and gerrymandering has been around since the beginning of the Republic. It’s really gotten out of hand with the sophisticated census tract information that we have today and the micro targeting within a household about both parties know which people to spend time on it, which ones not spend time on. Now our home state of Michigan has a nonpartisan redistricting commission that has been meeting and you know, moving toward a non political solution. It seems to me like a good idea, because I’ve seen these congressional districts that snake around like this, and it’s not bringing together people with commonality, other than who they will make the seat secure for. Are you following redistricting as part of your study of the election?
Derek Muller
Yeah, absolutely, and states are experimenting with what you know, Michigan is going to do for the first time this year about independent redistricting commissions, bipartisan redistricting commissions, whatever it might be, citizens redistricting commissions, trying to take the redistricting process out of the hands of the legislators. And so there’s actually a couple different ways of thinking about the concerns. One is when the legislatures is in one state, draw congressional districts, I mean, that has a national impact, right? We think about Congress having you know, 50 states, so people are really concerned about that, but at the same time, it’s not as self interested. Right, they’re drawing districts for Congress, but they’re not drawing their own seats. But the other thing is when state legislators draw their own districts, and that is a funny thing to think about, they get to draw the maps for their own districts about who’s going to be in competition with whom do they put two or three of their political enemies in a place? Do they draw a district that safe for themselves, whatever it might be. So states have begun experimenting with this. But I have to say a lot of it really depends on the culture in the state, right. So in Iowa, we’ve had a legislative services agency that has done a map, it gives it to the legislature for kind of a thumbs up thumbs down. It’s been doing this since 1970. It’s worked very well, but in part because of the political culture and climate, where everyone thinks this is kind of like a good way forward. In a place like Arizona, where they instituted an Independent Redistricting Commission, Republicans and Democrats have been at loggerheads ever since. And it’s just been, it’s been non stop fighting. Many of the decisions have divided the the five member commission three to two, in part, because the fifth member of the Commission, who was supposed to be independent has tend to decide with the Democrats. So it’s a question of how you develop the commission in the first place, how bipartisan they are, and then also what rules you put in place because the commission can do what you guide them to do. But we also have different goals like what do we want in districts? Do we want districts that are competitive or not? California and Arizona actually have different answers to that question about whether or not we should try to create competitive districts or whether or not we should ignore that just draw districts that follow some objective criteria. So it’s a challenge to develop upfront too.
Richard Helppie
It is, you know, I know that the city of Austin, Texas has, I think, eight or nine congressional districts because they just take a little slice of Austin and then balance it out against a predominantly Republican District, which is pretty horrible and changes the makeup of Congress, although I don’t think using Texas as an example for anything ever does much good. So Derek, what else should we talk about at the state level before we move on to talk a little bit about what’s going on at the federal level?
Derek Muller
Sure. Yeah. So I think the other thing that that’s been a big concern at the state level, and I think I’m kind of waiting to see where it goes, is a concept that a lot of people in my field are calling election subversion or worries about election administrators or election officials in how they administer elections and wondering if they’re going to undermine the confidence in elections. So what’s happened in 2020, Secretaries of State, you know they did a really great job around the country. Democrats, Republicans, you know, I think some of them, you know, I would dispute some of the decisions they made, but all of them at the end of the day, they did their job, and they approve the election results and certified results and sendt them on to Congress and and to the state legislature. You know, I think the question arises when election officials start to reject that process. And we saw you saw a little bit of that in Wayne County, this past year. And there have been some movements in some states to allow the legislature to have a little bit more of a say in the process. This has happened in Georgia to say that maybe the Secretary of State shouldn’t serve in some of these places to certify election results. I think there’s a question moving forward about these election officials who, again, despite the fact that Republicans or Democrats tend to act in a nonpartisan fashion certifying election results, the question is, if there’s any inroads in some of these states about election officials who want to reject what the canvass with the recount, what the audit has indicated and say, no, no, that wasn’t the real result of the election. We have a lot of processes to get to that certification, which is why you see all throughout the country states just saying, Yeah, absolutely, we have all these checks in the process. We affirm the result. I worry about the future, if there are future election officials who aren’t willing to sort of trust that process and undermine the results.
Richard Helppie
At the federal level, you talked at the top of our chat today about the role between the feds and the states and the Constitution and that the Constitution, the federal government does have power to protect states from bad acts. So there’s been a partisan bill, HR.1. also coded S.1 the caption the For the People Act, I’ve read it, I have a lay understanding of it, but I’m not an expert. So for our audience on The Common Bridge, can you maybe talk about what you see as some of the major provision, what’s good, what’s bad, is there anything ugly in there, and maybe help us understand the actual contents of what this For the People bill has?
Derek Muller
Yeah. So it’s a big bill. It’s over 800 pages. And to give a little context, right, the heart of this bill really was first introduced in Congress in 2019. This was sort of a Democrats package when they came in to you know, they won the 2018 midterms they took over Congress, this was sort of their package in, in the House. So it was kind of it was symbolic legislation in a sense in 2019, because there was no way the Senate was gonna pass that much less President Trump sign it into law. But you know, it took on new life in 2021, when they control three branches of government are all, you know, the House, the Senate and the Presidency, I should say. And they’re able to sort of push it through the House, and now it languishes in the Senate pending the filibuster. It has a lot of components. And some of these are cobbled together from acts that have been, you know, introduced in Congress since the 70s, about how the Federal Election Commission is composed, to recent concerns thinking about, you know, paper ballots and a verified voter trail to ensure that we’re able to audit elections appropriately. So there’s a smorgasbord of things but you know, I’ll highlight a couple of things. One is, you know, we talked about partisan gerrymandering. It would require states to use independent redistricting commissions of some sort or another for congressional elections. Another is that it would require expanded absentee voting opportunities in states and expand the opportunities for the collection of ballots, including allowing more ballot harvesting, and prohibit the use of voter identification laws that are being used in the States. It would expand opportunities for ex felons to participate in elections, it would require increased disclosure from websites about the advertisers and political advertisements that are provided on the site. You know, it just it’s a it’s a little bit of a who’s who, of running through election law. And undoubtedly, you know, most of these things, I would say, you know, I don’t want to get into a lot of the wonky legal details. Most of these things are, I think, constitutional, they’re within Congress’s power to dictate the rules of congressional elections. So I think the questions are, you know, is this the policy that we want to set for the country, and to the extent that it overrides state or local control of elections is that the trade off we want to make and so for Democrats in Congress to say, this is an essential thing that we need to do to override those changes. For Republicans, they’re saying this undermines a lot of things that we think are safeguards for voter confidence and are not appropriate to manage at the federal level?
Richard Helppie
Well, a couple of things you mentioned there that are in my area of expertise with technology, so that the identification of what happens on social platforms, which they call out by name, and you essentially give the popular social media platforms, the power of the town square, I can kind of buy into that I think that tool used correctly, can really be a great place to communicate. But at the same time, people can be kicked off those platforms and told they can’t participate. So I’m a little troubled by that. The other major provisions as a data guy that troubled me is that it kind of seems to flip instead of I need to go register to vote in order to be an eligible voter, it says that any data that was held by the government, whether it was public assistance, health records, court records, incarceration records and the like, and made those part of the voter registration roll that would then be automatically enrolled. And my trouble with that is that in the House bill that said you couldn’t disclose the source of the that registration. And as a data person, I know, the first thing you do is you look at something to go, does that look right? But what did it look like in the sending system? The Senate bills seem to clean that up a little bit by saying you can’t publicly disclose where it came from. And then the mandates for registering 16 year olds was a little puzzling. And then the, you know, the mandates for same day registration, at the same time that the cross check to be sure someone’s not registered in two states had to be done six months in advance of the election. I mean, these are the things that cause me pause when I read the bill. Now, again, I’m reading from a lay perspective, and if you tell me, Hey, you know what, I got it all wrong. That’s fine. Now, I’d like to have it all right, quite frankly.
Derek Muller
So I’m not sure, you dug into some provisions that I wasn’t as familiar with. So I’m interested in those, but I can tell you know, ideally, you know, on Congress’ side, the states right now have to essentially enter into deals with one another to cross check when there’s a voter who’s moved from one state to another, right. That’s an awkward system that’s happened. So I understand a desire to facilitate some improved national database for this. So the systems have improved a lot in the last 20 years. I would say when we talk about voter fraud, double registration is much more difficult to do but that still happens, right, much more difficult to do nowadays. And so we want to provide some of those cross checks to ensure that you know, when you’re when you register to vote in one state, it’s cancelled in the last state where you move from, but you know, you raise, I think an important point about same day registration… should say, automatic voter registration, which is a popular thing in a lot of states. And, you know, I think about this in two different ways. The popular reason–and I’m not as persuaded about this–is, well, we want to reduce barriers, let’s automatically register people, and then, you know, it’ll be easy for them to participate and show up on election day. You know, the registration requirement is really not very onerous. I think very few people are turned away, you know, at the polling place, because they fail to register to vote. I mean, if you have same day registration, it should be almost nobody, right, so there’s that component. But automatic voter registration does have a virtue, if you want to talk about the data, it doesn’t require a second set of human inputs into a voter registration base, separate and apart from the existing legal database. So if you were to input, you know, a driver’s license information, and that automatically populates in the voter registration base, that’s great, because it’s one less human error to go from one, you know, from the form into the, into the, into the voter registration base, especially because people look very carefully when they get their driver’s license, as opposed to looking very carefully when they get the voter registration form to make sure your name is accurate, and all that kind of stuff. So I think that’s helped a little bit in some states, but more and more states are moving toward automatic voter registration as sort of a convenience measure, you know, its effect, I think, remains to be seen.
Richard Helppie
I actually think that’s great when you have something that’s been vetted as well as a driver’s license is vetted, and I’m a person, you know, that has a suffix and such. And I know that if I don’t sign my voter ballot, when I go into vote exactly right that I use my middle initial, or did I spell out my middle name, I’ve been stopped and said, This isn’t the same person. And I have an unusual last name. And frankly, as far as broader issue, we have this in medical records, too, we spend a lot of time trying to identify a unique person. And given everything that’s happening with technology and privacy, probably having a national number that yours for voting, we’re not going to be given up any privacy that we already haven’t, and we’d be buying a lot more precision. That’s a rail I don’t think anybody wants to touch on the political front.
Derek Muller
I haven’t talked about I mean, National Voter ID, National ID card is a different issue. But national voter registration with a uniform ID card for everybody has been bandied about. But again, it’s the stuff that academics talk about that the politicians definitely treat as a third rail and are not interested. Republicans never want to nationalize it. And Democrats don’t want the ID components.
Richard Helppie
Alright, so and I look at it and I did medical systems for a long time, and in every one of those systems, there’s a place for a National Medical Record identifier, and Congress has started to look at some legislation to enable that to say, you know, what? The precision that we would get from knowing that what this person’s history is, and current medications and such is worth the remaining trade off on the privacy. But moving on to the John Lewis Voting Rights Advancement Act, what’s in it? And also, if I can ask two questions, at the same time, the Freedom to Vote bill that just went out last night, I don’t know if you got a chance to look at that, any view on either of these two or any education for our audience?
Derek Muller
There’s a lot… I did have a chance to look at the Freedom for Vote Act that came out today. So I but maybe I’ll start with that. What I mean, you know, it’s a it’s a it’s a mere 592 pages. So it’s a slimmed down version of of HR.1. the For the People Act. And it trims out, I think some of the contested provisions, but it leaves in a lot of a lot of things. It still has some of the disclosure requirements for websites. It still has the same day registration requirements for the country. It still requires independent redistricting commissions. So I haven’t spent a lot of time looking at the things that it specifically pulls out. One of the things that it does say is it says voter identification laws are acceptable in states, as long as you have a place where you sign off and say, if you don’t have an ID saying I am who I say I am. So it’s what we would describe as as as a non strict ID essentially, you know, affirming that you are who you say you are. It also addresses a couple of things specifically targeting some of the bills we’ve talked about Georgia, Texas, Iowa, saying, you know, some of these laws try to tighten up penalties for poll workers. It tries to come in and say these are the limited circumstances you can remove someone from being a poll worker or an election official. It says you’re allowed to distribute food, non alcoholic beverages outside of polling places. That was something that Texas or that Georgia in particular was going at. It says it requires every state to put ballot drop boxes, at least one for every 45,000 registered voters. So it provides more drop boxes than just one per county in a very populous county. So it has a number of technical provisions targeting some of these practices in a distinctive way. On the John Lewis Voting Rights Advancement Act, so this has been built out there was a version of this that came out in 2019. There have been versions that came out before that, a new one that came out just a few weeks ago in 2021., and it really is trying to build on some of the concerns that the court has identified, in a couple of cases, one called Shelby County vs Holder in 2013, another called Brnovich vs Democratic National Committee this year. And without getting too deep in the weeds, what it does is it says Congress is going to look at states that have had recent judicial findings of racial discrimination in voting. And if a state has some recent history of that, then it needs to go request a court for approval or the Department of Justice for approval, before it makes changes to its election laws in the near future. The notion being, we should be skeptical of changes to its election laws to ensure that racial minorities have an opportunity to participate in the political process, and it also targets a handful of practices, voter ID laws, changes in redistricting lines, things like that, and says all of these things should be approved by courts in advance to ensure that they don’t affect racial minorities. So that there’s a number of other things that the bill does. But I would say those are a couple of highlights that the voting rights Advancement Act is trying to get at continuing some of the legacy of the Voting Rights Act of 1965, with some updated twists.
Richard Helppie
I actually read the the Georgia bill SB 202, and I didn’t see anything in there that was that surprising. Now bear in mind, I didn’t know where they started from, but you know, like the provision that you can’t give a brochure or tickets or you know, or a promise of anything, including food and beverage to someone in the voter line within I think, 150 feet. That was every voting thing I’ve ever done in Michigan, that there was kind of a line like all the, you know, partisans were lined up. And then once you cross that line, nobody could talk to you. And then Georgia said, you know, we’ll put out a receptacle for water. You know, again, I can’t speak to what their motivation was, but it seemed, you know, better than some of the states in the northeast, nothing that I wasn’t familiar with. When they go into court, I don’t know if you’ve looked into it at this level, and I know there was a federal suit that the Justice Department sued Georgia, would Georgia’s defense be, look, we’ve given we’ve got more, you know, early voting days, then these other 20 states or, you know, we’ve got this provision about what you can give to a person in line, it’s the same as 32 state. Is that a defense for that or because of Georgia’s past practice, that’s not considered a defense?
Derek Muller
Yeah, it’s tricky. I mean, how courts examine the evidence, certainly comparative perspective is helpful to say we’re not an outlier, we are consistent with what other states do. Maybe more importantly, is for courts to look at how, you know, one thread fits in with the whole tapestry, right. And I think that’s an important thing. You know, I kind of opened by talking about all of the opportunities we have to vote. You know, I think if you’re targeting particular things to say, you know, Georgia, prohibiting you from mailing out in advance absentee ballot request forms, you have to make a request for them, you know, changing drop box locations, and so on, you know, you can sort of pick at those things, but then it’s looking at the bigger picture and saying, how does that fit in with everything else? Should we look at it, as you know, there’s 10 voters who it’s going to be more difficult for where they have other opportunities, or we do look at in sort of the suite of everything all together. So the United States, its lawsuit is targeting a different practice. It’s saying Georgia acted with racially discriminatory intent. In a way you said, that’s a bold claim, right to say, Well, why would they do it right? Sure, but it it helps you avoid some of the effects based concerns, right? If we’re not sure if it’s hard to compare, you know, all that tends to go out the window, if you can say, they were just dead set on, you know, targeting racial minorities in the state of Texas, or in the state of Georgia with these provisions. And so that, you know, that it’ll be interesting to see the evidence that comes out, you know, as Georgia defends that case, and the United States is targeting them in that manner.
Richard Helppie
Derek, you’ve been really generous with your time. And as we think about wrapping up this episode of the Common Bridge, what did we not cover that perhaps we should be discussing?
Derek Muller
I mean, I think, you know, for my part, I think it’s really hard to look at the United States right now, and see the distrust in elections at essentially every level. You know, most recently, it’s been Republicans, the Democrats have had their fair share in the not too distant past. It’s not a good place to be where if you lose an election, the immediate response is to challenge it, to allege fraud, suppression, whatever it was. And right now, there are a lot of people who can make a lot of money by making those allegations in the United States. And that is just not a good thing. It’s not a good place to be. We need to have confident voter base, intelligently educated to say, you know, this process, I might disagree with it, and I disagree with you. But we have a lot of integrity and oversight in election not to say there aren’t mistakes, and not to say there aren’t bad apples, right. And there are problems that arise in the system. But for the most part, these, there are bipartisan election boards that oversee things bipartisan watching at polling places, bipartisan canvassing boards that certify election results. And we should feel really confident in those men and women who do their jobs on a daily basis. And you know, I appreciate programs like this to increase the confidence in the election system, I recognize, and we can still have debates, really at the margins, though the heart of the election system is strong, that’s only going to be as strong as people have that confidence in it and aren’t trying to undermine it.
Richard Helppie
You know, in an era when news was news not news wasn’t entertainment, you know, I think we’d be there. But today’s actually the day of the California recall election. And you know, it’s going to be a circus with hyper sensationalized stories that already the pro recall people are going to say, look, we’ve gotten numerous incidents of people being told they had already voted, and that you have the anti recall group saying, Hey, we’re not going to accept the suppressed vote, and it’s getting pretty ugly out there. Yeah. So in that light, what action or actions would you recommend that people take today? What should they be thinking about and communicating with their friends and neighbors and social media and talking to their elected representatives? Or and perhaps that ties in what might be some of the best or worst policy approaches that we might have today?
Derek Muller
Yeah, I mean, it’s such a it’s such a great question. It’s such a hard, hard question. You know, I think about this way, (Rich: that’s why I asked it. That’s why I got you here and asked the question!) I mean, I start with, you know, whenever you hear of an instance of irregularity, or or something suspicious happening in election place, you know, I think the question is like, Can this be caught or stopped or fixed? And will that happen by the time we count the ballots. We have provisional ballots are a robust opportunity now developed since Bush vs Gore, a really, really impressive opportunity to, to ensure that if we think there’s something gumming up the works before election day, we have your provisional ballot, and we’ll count it if it turns out that there was some mistake made elsewhere. So we have that, or a lot of things that somebody somewhere says on social media reporting as an irregularity, maybe it’s not so irregular at all. And maybe it’s a totally normal thing in the process. So I always encourage people to sort of take a deep breath, don’t hit send, and think and wonder if there’s an investigation and further inquiry into this. And I’ve seen a lot of things that are innocent explanations that are mistakes, there are mistakes that can be corrected. It’s not to say there aren’t bad things that happen. Another is, you know, to realize, you know, when you have an election, like California’s you have millions and millions of people voting, and inevitably, there’s going to be some problems, there’s going to be hiccups, there’s going to be wildfires that are slowing people down or delayed mail service. But for a lot of people who are interested in the day to day, you know, I encourage them, you know, I think there was a lot of discussion about election observers in 2020. But I actually encourage people to approach this with a civic mind and not with a partisan mind, be a poll worker, go work at a polling place for an election, spend 15 hours from 6am till 9pm, assembling the voting booth, checking in your friends and neighbors, giving them the ballot, and just see how many safeguards there are in the process. There are a lot. I mean, there are a lot out there and many more than there used to be 50 years ago, maybe even 20 years ago. And whenever I’ve worked elections, it’s given me increased confidence in the process. Because I see all of the steps in the process the checks designed and double checks designed to ensure that we count all the ballots we account for all the ballots, we account for the people who showed up at the polling place to the number of ballots that end up in the drop box at the end of the day. I’ve seen people who’ve done the signature verification checks at absentee polling place, you know, and you can have contested questions all day long, but as an observer, you’re standing back peeking over somebody’s shoulder. As a worker, you’re right there doing it. And so I really encourage you, if you’re interested in all of these nuances and mechanics of the process, just get in there, and they’re always looking for volunteers, it pays dirt. So it’s a good opportunity for you to participate and see what that looks like.
Richard Helppie
That is outstanding advice. We’ve been talking to Professor Derek Muller of the University of Iowa Law School on a fascinating topic about elections, election law, election integrity, and some really sound practical advice how each of us as individuals can get involved Professor Muller, before we sign off here, any closing thoughts?
Derek Muller
I said, I think, you know, the fundamentals of the democracy are strong to the extent that we can trust in that process. We do have hyperpolarization right now, which is a product of a lot of things, a re-alignment of the parties in the last 50 years, among other among other things, but I really encourage people to not get too jaded in the process to realize that it’s a lot of people who are trying their best. And you know, we’re all trying to work toward that common goal of election integrity and sound results. We want to count all the ballots and that’s the objective at the end of the day. So show a little a little grace and humility to those around you as we as we try to fumble through this together.
Richard Helppie
Great. Thank you so much. And again, thank you for agreeing to be on our show. This is Rich Helppie, your host of the Common Bridge. The Common Bridge podcast is available on over 30 directories, including Apple, Amazon, Spotify, IHeartRadio, and Buzzsprout and also on YouTube TV look up Richard Helppie’s Common Bridge. And so until next time, this is Richard Helppie, signing off on The Common Bridge.
Brian Kruger
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