Protecting Access to the Ballot w/ Campaign Legal Center

[00:00:00] Welcome to Democracy Nerd. We're going to start today with the news update and it's a news update

[00:00:20] that might have gone unnoticed even by some other democracy nerds. A little bit earlier

[00:00:26] this month, the federal judge North Dakota blocked a suit that attempted to prevent ballots postmarked prior

[00:00:32] to election day but received after from being counted. Effectively, the judge determined that yes

[00:00:39] indeed ballots submitted by election day should be counted. The suit along with a similar one

[00:00:46] Mississippi is the opening salvo of what could be a long and probably will be legally contentious

[00:00:53] battle over access to the ballot in this coming presidential elections. One of the organizations

[00:01:01] committed to ensuring ballot access is the campaign legal center and we are lucky to be joined

[00:01:05] today by Paul Smith, no relation as far as I can tell the center's senior vice president providing

[00:01:12] an update on the legal strategy, ensuring the right to vote in this coming election. Why it's

[00:01:18] necessary to persuade judges that ballots cast before election day should be counted. Hello,

[00:01:26] Paul and welcome to Democracy Nerd. Hi Jeff, happy to be here. So before we start and talk about your

[00:01:33] work at the campaign legal center, let's talk about the North Dakota case. I mentioned it briefly

[00:01:39] correcting the I got wrong or amplify what people should know. Right now it's a there's a federal

[00:01:44] statute that says the presidential election is held on whatever that second Tuesday in November is

[00:01:51] and the Constitution says Congress can set the day of the election and the argument in the case was

[00:01:56] you have to actually have your ballot in the hands of the state voting officials by election day

[00:02:02] and so all the states and there are quite a few who allow you to vote by mail before the election

[00:02:08] and as long as the ballot comes in by a deadline some days later after the election

[00:02:13] the count those ballots that they shouldn't be counting those ballots. That's the argument

[00:02:17] the case made. And why is it bringing brought to a federal appeals court? I assume

[00:02:25] that it's a federal case they're making a federal case, even though it's state law, they're

[00:02:29] saying what's the what's the federal law that they were lying upon to try to disturb how states

[00:02:35] are counting their ballots? It's a federal statute that sets the date for the election and they're

[00:02:39] basically arguing that what Congress said the election has to be on X state. They included a

[00:02:45] requirement that the ballots be in the hands of state officials by that date whereas many many

[00:02:50] states say you voted when you put your ballot in the mail so they think it's timely if you if it's

[00:02:56] postmarked before the election and there's no reason not to count those votes it's just

[00:03:02] the theory of the case though is we shouldn't let all those votes get counted.

[00:03:06] And I don't have it in front of me and I should have looked it up since I have now the curiosity

[00:03:12] but do you and it probably unfair to ask you because you may not have it on the tip of your fingers

[00:03:16] but do we do we what's the statutory language does it what if that's what they're going to be arguing

[00:03:21] what does the statute actually say? First Tuesday after the first Monday in November or something like

[00:03:26] that there's a there's a little bit of a complicated phraseology is the day when all states

[00:03:31] should select their electors they don't actually have to have an election they have to pick their

[00:03:35] electors on all on the same day whatever process they've established and so it's really just an

[00:03:43] argument about the interpretation of this federal statute and if it gets interpreted authoritatively

[00:03:49] by the Supreme Court as not allowing these late arriving absentee votes based on a postmark then

[00:03:58] there'll be that many fewer people voting by mail. And the show after all is called democracy

[00:04:03] nerd not democracy just across the treetops so it's worth trying to get trying to dig into it

[00:04:08] that this federal statute only says when electors should be selected and does not say when votes

[00:04:14] should be cast by or when votes should be counted by doesn't have any specific language about

[00:04:19] this particular issue but doesn't doesn't contradict allowing these votes to be counted either

[00:04:27] it's been understood for many many years that a state is permitted to say you cast your vote when

[00:04:32] you deposit your ballot in the mail and you no longer have any control of it and the state laws

[00:04:38] tend to say it has to arrive within a certain number of days after the election but they certainly

[00:04:43] it's a very common thing to allow votes to come in based on a postmark before the election or on

[00:04:49] election day and still have those votes get counted. All right so as I understand an auditor in a

[00:04:58] county in North Dakota express some confusion about the federal and state laws and the auditor didn't

[00:05:03] noted there were criminal penalties if they made the wrong decision. North Dakota law allows state

[00:05:09] canvassing boards to accept and count ballots up to 13 days after the election day with the ballots

[00:05:16] providing they had been postmarked by election day they can't have been mailed in afterwards.

[00:05:24] Why was this auditor confused about accepting the ballot submitted but not received?

[00:05:31] I don't know that I think confused was the right term. All right it was part of an effort by

[00:05:37] the the lawyers who filed this case to make some law to say that state laws permitting the

[00:05:44] absentee ballots to arrive after election day are invalid under the supreme

[00:05:50] mess of meaning of the federal law and it's all part of an effort to cut back on absentee voting

[00:05:57] because these days more Democrats do that than Republicans. That is the the essence of the

[00:06:04] of the problem. These are lawyers trying to use the law to tailor the electorate in a way they'd

[00:06:12] like to be tailored. Which voters would have impacted the most if the challenge had been upheld.

[00:06:20] So presumably absentee voters overseas voters, members of the military, homebound seniors and you're

[00:06:25] saying and is it those four groups that end up end up tilting away from the direction that the

[00:06:32] litigants in the case wish they were tilting that is that they seem like they more more likely might

[00:06:36] be Joe Biden voters or overseas military or homebound seniors but certainly in general

[00:06:43] in the Trump era people who vote by mail skew strongly toward the Democratic party heading

[00:06:49] away from the Republican Party precisely because Donald Trump has taught the message that voting

[00:06:55] by mail is a bad thing and so we now see which is a complete reversal by the way of the pattern

[00:07:01] that used to exist where Republicans relied on voting by mail in some very key states.

[00:07:08] But so we know that the the person who actually choose to vote by mail sometimes it's called absentee

[00:07:15] ballot, sometimes it's called voting by mail in many states skew strongly toward the Democrats.

[00:07:24] They state they want to return to election day being just a day and I know I'm going to try

[00:07:29] to ask questions about this but I mean the challenge I have is that even my asking what are

[00:07:35] their arguments is really just pretending they're actually arguments that are what matters right?

[00:07:40] I mean I understand that what really they're looking at is and what's driving now voting policy

[00:07:46] particularly for those trying to limit access to the ballot it's really who's well who's voting

[00:07:50] and who's not we got to rig the system so the people who will vote for us or the people whose votes

[00:07:54] are counted and so it almost feels like I'm dancing on the head of a pin and trying to understand

[00:07:58] the legal arguments because they seem like I mean do they even matter? Well eventually they will

[00:08:03] matter what a court decides the case in this case in North Dakota all that the judge said was you

[00:08:07] don't have any injury you don't have any basis to sue you should just follow the law and if you're

[00:08:12] not sure what the governing law is you should ask somebody for advice so the case got thrown out

[00:08:19] based on a lack of standing actually they didn't really reach the merits but someday there may be

[00:08:23] a case that gets up to the Supreme Court and will the court will rule based on its interpretation

[00:08:29] of the statute I think it's quite unlikely they're going to say a state isn't permitted to allow

[00:08:35] this this practice of having votes come in after election day if they're postmarked before because

[00:08:40] the alternative is really dumb requiring people to put their ballot at risk based on the vagaries

[00:08:47] of the males will discourage people from voting by male and maybe that's what the the plaintiffs

[00:08:53] really want because then you know you don't know what when you vote even if you voted a week ahead

[00:08:58] of the election did the ballot get there in time and it was my vote counted you probably never know

[00:09:06] the case was uh and I'm brought or supported by the public interest legal foundation the title

[00:09:12] of that sounds like something Ralph Nader started 40 years ago my guess is that is not the case who are

[00:09:17] these people who funds them what do they want that's so much uh the same thing now these are

[00:09:22] the if you look at the board of this this organization these are people who have been advocating

[00:09:26] efforts to suppress voting of one sort or another for a long time they are people who have

[00:09:33] been talking about how there's massive odor fraud out there an argument that was used all

[00:09:38] the way back to the 90s to justify voter ID laws which were thought to skew in favor of the

[00:09:44] Republicans and against Democrats uh and uh against people of color uh and and more recently now

[00:09:52] they're coming up with other legal theories to try to tailor the electorate in favor of

[00:09:57] of their preferred sign of the aisle so is that do they use an original argument what is there

[00:10:05] what is this kind of a thrust to the argument because you know in the early days it would literally

[00:10:10] take months to count all the votes cast in a presidential election in the early US so if they say

[00:10:15] oh we've got to do it like it used to be done I don't know what does it like to be faster well of course

[00:10:21] counting them is one thing that's the other thing is receiving them uh so the the early days may not

[00:10:26] be quite the same thing it is true that they took a long time to count when you had to count everything

[00:10:31] by hand um but uh since this is interpreting a statute not the constitution it's not so much

[00:10:39] about originalism it's just sitting down and reading the words of the statute maybe looking at

[00:10:43] what Congress had in mind when it passed it uh and certainly I think in this case you would look at

[00:10:48] the fact that states have been permitting this for many many many years Congress has never had

[00:10:53] any objection to it and so the there's nothing in the language of the statute that would say

[00:10:59] there's anything wrong with saying you voted on the minute you put the ballot into the mail

[00:11:05] uh so I think the outcome of the case ultimately will likely be to uphold this practice uh as the

[00:11:10] sensible thing that's been around for an awful long time now in another universe and by that

[00:11:17] I mean in a in any number of universes where either they'd been relatively speaking balanced appointments

[00:11:24] of Supreme Court justices or in a world where Supreme Court justices have been selected in rough

[00:11:29] comparison to the presidents who have actually been elected or another universe where the composition

[00:11:36] of Supreme Court could be predicted by what the popular vote in the United States has been over

[00:11:40] the last 40 years roughly speaking or in another universe where Supreme Court justices were selected

[00:11:44] by a lot from anybody who'd passed the bar or gotten a certain LSAT score or had served as a judge

[00:11:50] at some other level or had some kind word said to them by bar association somewhere I would have

[00:11:58] no real concern I'd have not even strong curiosity about the result of this case only in a world

[00:12:05] where you have a packed court of six conservatives Supreme Court justices in contravention and in

[00:12:12] surprise result relative to everything else I just said would I imagine that they could twist

[00:12:18] themselves into such a way that could try to suggest that no no absentee ballots homebound seniors

[00:12:25] and members of the military overseas can't vote as you try to predict but that's the world we are

[00:12:32] in in the in terms of the court as you attempt to predict how do you predict if you put a percentage

[00:12:39] on it what's the what's the risk what's the risk interval here the one thing I never try to do is

[00:12:45] put a percentage on this and you know I think we'll have to see how this all develops I do think

[00:12:51] that even in the in the court we have which is conservative as you say and not always voting rights

[00:12:58] friendly this claim is not going to work yeah so what do we learn from it what's to be if you think

[00:13:05] this if so far they're not it's not working do you think what's what's behind it then or what's

[00:13:13] the outcome that they hope is that eventually they try 10 different arguments in one works even if

[00:13:18] it surprises everybody is it that doesn't mean it's not worth trying yeah for the lawyers to

[00:13:26] reminder standard a similar case underway in Mississippi right now is it essentially the exact same

[00:13:32] issue regarding bail ballots mailed before excuse me but not received after election day and also

[00:13:39] from the same folks in this public interest legal foundation I think it is the same folks but

[00:13:44] I'm not 100% sure who filed it down there we're not involved in that case as we were in North Dakota

[00:13:49] but I think it is the same people and it's essentially the same issue each of the two state laws

[00:13:54] have different deadlines after the election by which the ballot has to come in the mail but

[00:13:59] the same it's the same argument the federal law says you have to vote by a certain day

[00:14:05] and if you voting by mail doesn't count as voting who funds to the public interest legal foundation

[00:14:11] do we know that I don't know so that's worth finding out yeah but the uh it's a secret you could

[00:14:18] probably look up some information about them on their uh yeah I googled it quickly and didn't come

[00:14:22] up with a and didn't come up with a quick answer they're in Alexandria Virginia and my

[00:14:28] my guess to be Koch brothers but I don't want I don't want that my my jaundiced my jaundiced

[00:14:34] eye to make predictions that don't bear out relative to facts so that's some of the latest news let

[00:14:40] us ask about your story was the path that led you to and from I think Yale law school and

[00:14:47] to and from uh justice pal to helping defend voting rights and access to the ballot and doing what

[00:14:53] you're doing now yeah well I was in private practice for a lot of years and argued a lot of cases

[00:14:58] in the Supreme Court um and had a really where'd you practice if you don't mind me asking in DC uh

[00:15:03] what letter confirmed called uh general block sure I know general block so I did I did a summer

[00:15:08] at Covington and uh and I I didn't clerk in the Supreme Court but I clerked in a circuit so I

[00:15:12] I know I know another big law we're a little bit and I was headed to Supreme Court of

[00:15:16] Pellet practice for a long time at yeah I had a wonderful uh practice but one of the things we added

[00:15:21] to that practice along about 2000 was election law uh which we tried to make a business out of

[00:15:28] for a while we're litigating redistricting cases uh for the primarily for people in the democratic

[00:15:33] side but also for some uh you know the city of Chicago and others uh and eventually that led me

[00:15:39] to be more involved in other kinds of voting rights cases and voter ID cases and then uh

[00:15:45] other cases about suppressing the vote uh and uh long about uh the end of 2016 I was going to come

[00:15:53] teach at Georgetown Law School and leave private practice and I did leave private practice and

[00:15:57] did start teaching at Georgetown but because of the election Mr. Trump I was also prevailed

[00:16:03] to come over to work at the campaign legal center and help build a a a strong organization

[00:16:09] dedicated to promoting and protecting uh American democracy so I've had two jobs for the last seven

[00:16:15] years uh and been quite busy. What are your primary duties? What do you sometimes you talk

[00:16:22] shmows like me but what do you are you still arguing cases at this point? Are you supervising lawyers

[00:16:27] who do? Are you are you fundraising? Are you managing staff? What are the what's your portfolio?

[00:16:34] It's all of those things I've argued three or four of the biggest cases in the last few years but

[00:16:39] mostly it's uh we've built up a very substantial group of very talented lawyers in the range of 40 or

[00:16:46] 50 at this point and so I try to keep an eye on what everybody's doing but they're off running

[00:16:51] around trying cases and arguing cases all over the country uh and you know there's lots to do

[00:16:56] in the democracy space these days. Yeah I don't know if that's because it was a growth center or

[00:17:03] crisis center but I do want to say thank you because we've been you know been working on campaign

[00:17:08] financial form in my home state now for a long time and CLC is uh Oregon. Yes and and it's

[00:17:15] and it's actually hot as we speak in fact when I started coming up what the timing the timing is

[00:17:21] odd and I don't know even if you if that rolls up to you if you're even aware of all that stuff but

[00:17:25] literally over the last uh 48 hours 70 hours there's been there's been a there's been a push for

[00:17:32] decades to try to get it we have no caps on campaign contributions in Oregon and so there's been

[00:17:37] a push to get them and finally now there's been uh there's a ballot initiative that was passed in

[00:17:42] order to make it clear that the Constitution would allow the state constitution would allow it

[00:17:46] now there is their competing initiatives on the ballot uh one that is done by the good government

[00:17:51] folks uh that's the one I've been helping with and then another one done by some more powerful

[00:17:55] folks who I kind of want to block that one right but it also has some good stuff in it but more

[00:17:58] recently uh what's happened over the last 70 hours is that the uh uh is that the biggest campaign

[00:18:06] spenders have come together in legislature and offered uh uh honestly pretty bad proposal in fact

[00:18:11] very bad proposal but in the hopes of blocking the things that are out on the ballot the people could

[00:18:15] vote for and that was just they're having a special one month session we do that right we have a

[00:18:20] long session short session short sessions about a month and that short sessions happen right now

[00:18:24] and they're gonna try to see if within span of a week they can develop argue in favor of and pass

[00:18:29] and then move forward to implement uh uh uh uh uh not very good piece of legislation and I want to

[00:18:35] say thank you to your organization could you have been uh not only the most trusted but also the

[00:18:39] sort of the smartest folks on thinking about good policy on campaign finance limits etc.

[00:18:44] First of all to have enough resources and we're still fighting the good fight on campaign

[00:18:48] finance along with voting rights and gerrymandering a lot of other things uh but we do have people

[00:18:52] whose job it is to keep an eye on and get involved with state level reform just of that kind I know

[00:18:58] they've been involved in Oregon without taking a side I don't think on any one uh of the initiatives

[00:19:03] at this point but we just need to use private private information or what I try to do is just say

[00:19:07] he listened uh let's try to have the walks tell the hacks what to do let's try to have let's try to

[00:19:12] have the people who are actually worried about policy let's try to give power to the best answers

[00:19:17] right rather than just manipulate the best answers on behalf of power so that's that's you know

[00:19:21] that's why this court sits uh but I uh but I speak that from from gratitude also thanks for

[00:19:27] spending your time genuinely because that is because that's what I thought the practice of law was

[00:19:31] going to be like I thought there were more folks like you who I did I thought the most works like

[00:19:35] you kind of moved in and out of government not only as a client as a client building uh mechanism

[00:19:41] but actually as a manifestation of service and maybe why they went to law school in the first instance

[00:19:45] not only so they could not only say they could retire with the place of the Hamptons but so they

[00:19:48] could have some impositive impact on democracy what uh how do you how do you see the state of

[00:19:57] the practice of law right now the the culture of of young people of all ages who are moving into it

[00:20:05] and who are addressing maybe their core values about why they got into it do you reflect on these

[00:20:11] things at all I'm at least curious well you know I teach at a law school at Georgetown and so I see

[00:20:17] young people going into the law all the time and they are going into it for all the same reasons

[00:20:22] that we did which was to uh try to make the world a better place to be able to solve important social

[00:20:30] problems uh and uh they then go off into practice and in many cases they find ways to do that

[00:20:38] I think it especially in DC as you say that people some people do it in the context of private law

[00:20:43] firms and then go into government for a while or maybe they go to a nonprofit for a while

[00:20:47] um I actually think that the legal profession uh while hardly perfect it doesn't get the credit

[00:20:53] it deserves for all the free work it does for all the important services it gives uh and

[00:21:00] recognition of of the fact that you know lawyers play such a central role in both the good and

[00:21:06] bad aspects of what happens in this country I want to play name game just for a moment because

[00:21:13] they're next generation folks and Kyle can cut it if he wants to do you by any chance know either

[00:21:21] Brad Snyder or Alex Erinzen Brad Snyder teaches here at Georgetown with me all right so he

[00:21:29] and I clerked together so he was different judges same same same time same building and and he's

[00:21:33] associated gender with me when I was there oh was he really much younger than me but uh but

[00:21:38] certainly was there at one point all right so I had no idea all right so so Brad was on this program

[00:21:44] right we and I talked he and I go way back he wrote and it's even one of the reasons it's on my mind

[00:21:48] because he wrote democratic justice about Felix Frankfurter right and about about the the effort

[00:21:54] to take to use the to use your terms or the good parts of the legal profession and try to put it

[00:22:00] into put those human beings in the government service right and and that's been on my mind a

[00:22:05] little bit before talking to Brad but a lot since and and and the other is uh oh no I should pause

[00:22:12] there in case you wanted to say anything I before I move it on to Alex no no I think that's a

[00:22:16] really good example of when lawyers were called upon to move into public service and try to

[00:22:20] really save the country back in the depression by by FDR and the new deal and it's a really

[00:22:25] important story glad Brad told him and it feels like that's to me where we are not because it's

[00:22:30] World War Two or hopefully not World War Three but because I think we are as you have demonstrated

[00:22:35] by how you are spending you know this portion of your career in and this is a time when we have to be

[00:22:41] saving democracy am I overstating that unfortunately I don't think you are but I will say that

[00:22:47] there are an awful lot of people including an awful lot of lawyers who are recognizing that

[00:22:51] and have recognized that uh and we are you know working together hand in hand to try to make sure

[00:22:58] the democratic outcome actually produces the next elected president and that's obviously not

[00:23:04] as much of a given as we used to think it was uh and lots of other people are contributing in other ways

[00:23:10] I think it is a time of mobilization on the part of an awful lot of good people who care about

[00:23:15] democracy so the other name is Alex Aronson and if you don't know him you should meet him

[00:23:21] so he is now he was chief counsel to Sheldon Whitehouse the reason I know him is he worked for me

[00:23:27] years ago yeah yeah yeah and he is now the executive director of the the public interest nonprofit

[00:23:33] that is working to make sure that there's a pro-democracy movement within the judiciary making sure

[00:23:40] hopefully that at least some larger share of the public conversation is aware of what's been happening

[00:23:47] to uh to the capture of the courts so anyway it's uh these these these are folks you know I like to

[00:23:53] trump it when I have a chance great so in terms of what the campaign legal center is up to

[00:24:01] voter suppression voter access big piece of it as you mentioned stops some resources to mess

[00:24:05] around with to help with campaign finance what's the what's the size of the organization how many people

[00:24:10] work there we're about 90 now uh and uh have gotten a budget that's grown considerably in the last

[00:24:17] seven years you know I was basically brought on to help build it into a real

[00:24:21] litigating force and we've done that and we have very very high level communications operation

[00:24:28] and fundraising obviously is necessary other things so it's probably 80 90 people now I think

[00:24:33] 80 90 I think is the right number and it's a large it's a larger organization and we yeah

[00:24:39] it's a larger organization and we you know I had to then our peak in our peak voting year I think we

[00:24:43] ended up having you know 60 70 people in payroll the uh and and better than that if you thought

[00:24:49] it in terms of in terms of nation wide difference between what you one of the things you have to do though

[00:24:55] is uh you're needing to have a highly prefer not only highly professional people with people who's

[00:25:00] if you're hiring lawyers their other career alternative is not one that's the minimum wage job

[00:25:05] right like you're having to you're having to pay sufficiently so that they can pay an existing

[00:25:09] mortgage uh and they're willing to do it but you're not probably not competing on money when it

[00:25:14] comes recruiting these people no you can't I mean law firms are so so much in a different space

[00:25:21] in terms of how much they pay so you have to offer people the opportunity to do something they

[00:25:26] really love on a full-time basis and you know you can do things you love at law firms but it's

[00:25:30] not full-time there could be other things you have to do just to pay the bills you can do a little

[00:25:35] bit of it and so what's how how long do people tend to stay is it is it and at what stage of their

[00:25:40] career is it and maybe with 80 people 90 people it's all over the map but how many of those folks are

[00:25:45] you know people sort of in your circumstance who've kind of made their nut and now have a

[00:25:49] now a chance to live their values full-time to a greater degree how many of his people like early on

[00:25:53] say I'm not I'm doing this right away how many people are doing it as sort of a a stint and then go

[00:25:58] back to private practice or something else if you were going to characterize it how would you care?

[00:26:02] we're we've grown very fast so we don't have a huge track record with tons of people who are

[00:26:07] lawyers we don't know yet but the answer is we have mostly young people who have either to come here

[00:26:14] from a from law school from a clerkship maybe from a law firm for a couple of years but not

[00:26:20] not uh not people like me who have been outed in the the firm world for a very long time or

[00:26:27] taking a break there is there are other organizations have different models and there is

[00:26:31] a movement to kind of employ retired senior partners in this kind of nonprofit world and some of

[00:26:37] that is happening but not so much in our organization because it's other than me no I dwell on it

[00:26:43] and also express gratitude about it because I really do uh I mean I think the the mechanisms of how

[00:26:50] movements are built are interesting to me it's one of the reasons I appreciate these conversations

[00:26:55] and I and I think we agree that there's a critical time for democracy and it's going to take

[00:27:00] lots of people who uh who have been able to and I want to criticize any of us but who have been

[00:27:07] able to have the luxury of free writing upon the public interest work of others or upon

[00:27:12] the public interest foundation work a small f foundation that was you know built in decades past

[00:27:16] and realizing oh we can't we can't just skate by somebody's got to do this stuff

[00:27:22] so yeah thank you for that so back to your work or some of the CLC works some of the campaign

[00:27:28] legal center work you recently released a voter purge legislative resource guide the term might

[00:27:34] be descriptive enough but for interest marketers out there who might not be aware say more about what

[00:27:41] we mean when we say voter purge well a voter purge is it just a part of what happens when states engage

[00:27:49] in what's known as list maintenance when you have people registered to vote um you're going to end

[00:27:55] up with people registered in your state or in your county who have died or have moved away and

[00:28:01] their name should no longer be on the list so you have to do some maintenance of the list and if

[00:28:07] you know you try to find out information about people where they are they still there are they still

[00:28:12] somebody who should be a registered to vote in this location uh and so that's a perfectly

[00:28:17] legitimate practice indeed not doing that you end up with a registration list that's mostly

[00:28:23] ineligible people many of them no longer alive and that's a mess you don't want that on the other

[00:28:27] hand it has to be done right and so this is an area again where we have seen in recent times

[00:28:35] use of the power to purge voters as a way that seems to be designed to affect the outcome of

[00:28:43] elections and so the one thing that we have in our our toolkit that we developed with a bunch of

[00:28:48] allied groups uh we really emphasize there uh is that you should not be purging people just because

[00:28:54] they haven't voted for six years that's that's become a practice that some states do uh and you know

[00:29:00] the sort of creates a presumption that if you haven't voted for six years you're no longer out there

[00:29:05] and it's often just not true oh that's the kind of thing that we try to fight against in the voter

[00:29:11] purge area and what does that fight look like is that going to county clerks and say don't knock them

[00:29:15] off the ballot is that going to courts and say don't let county clerks knock them off the

[00:29:18] knock them off the ballot what is that you know what's the blocking and tackling of that

[00:29:22] look like some of it happens with going to legislatures in the states and telling them you

[00:29:27] shouldn't do this or to the secretaries of state I ended up arguing a case in the US Supreme Court

[00:29:32] on this very issue involving Ohio's practice of purging people after six years of non voting uh

[00:29:38] and you know if you got they would send you one snail mail letter if you didn't respond you

[00:29:43] uh you were thrown off and oftentimes you would go to vote later on uh and thousands and

[00:29:49] thousands of people know how shut up to vote for Obama and found out they weren't registered voters

[00:29:56] are there what are the legal steps should be taken if a voter is purged and part of the

[00:30:00] challenges is as somebody and it's not like everybody's not everybody's the marks you nerd right

[00:30:04] not everybody's got that and certainly not everybody has a not everybody is uh you know is uh

[00:30:08] uh somebody who's been paying attention to marks illegal policy and public policy for the last

[00:30:14] you know a number of years like oh it's like one other thing that comes in the mail it's one

[00:30:17] other thing they do in their life it's one other thing and like if they got lots going on it might

[00:30:21] be the thing they don't quite get around too so then calling you guys up said hey I want to get

[00:30:26] back on the ballot and it's not really kind of how it goes I suspect but it's not that hard you

[00:30:30] just have to be as you say enough of a nerd to be vigilant about it you have to check and see

[00:30:34] whether you're under registration lists and that's usually something you can do online

[00:30:39] uh and then there's there's nowhere where you can't re register you just have to go

[00:30:43] you really have to go back in with proof of residency and that sort of thing to get back on the

[00:30:47] registration rolls but you have to do it in time to vote for the in the election that you care

[00:30:53] about and there are oftentimes people who just don't find out or in time or don't take steps in time

[00:30:59] and don't end up voting I just want to address and get your thoughts on

[00:31:05] threats of violence and intimidation directed at elections officials and poll workers

[00:31:11] all workers typically volunteers uh this past week in the Washington Post there's a story about how

[00:31:17] election workers are going on offense I think was the story to protect the vote in the next

[00:31:23] election in 2024 in response to various threats I assume this is on your radar screen

[00:31:29] what is this symptomatic to have or what even just what first comes to mind other than confusion

[00:31:33] or rage well you know I think it's a symptom of this this claim that so many have been making

[00:31:41] that the system is corrupt and that there's massive fraud in in the election system uh that

[00:31:47] Joe Biden didn't win the election etc uh this leads people to conclude that the people running

[00:31:53] this system must be corrupt as well uh and you know it's unfortunate more than unfortunately it's

[00:31:59] terrible because you know these election workers are the essential ingredient that makes the system

[00:32:05] operate they're the whole backbone of our our system and they're getting abused and threatened as

[00:32:12] if they're you know when they say we're counting the votes fairly or you're part of the problem

[00:32:17] you're not part of the solution etc it's it is unfortunate and I think we're going to see more of it

[00:32:24] this year than we've seen in the past as people get angry angry or an angry year about the

[00:32:30] presidential race as it seems to be developing as a rematch between Mr. Biden and Mr. Kroomp and

[00:32:37] then you know with all the other things going on criminal prosecutions and more claims of fraud

[00:32:43] it's just it's getting pretty inflamed out there and it's it's not an easy job to be an election worker

[00:32:49] right now what should we be doing to address or prevent such threats well one of the things we're

[00:32:57] doing is working in with states to pass laws making it a more serious offense to do things like

[00:33:04] harassing election workers and a number of states putting important swing states like Nevada and

[00:33:10] Michigan and Pennsylvania have passed such laws this year there is a recognition and I it's it's not

[00:33:16] entirely partisan at all that this is something we need to try to suppress and and make difficult

[00:33:24] and certainly punish when it occurs because you really can't operate the system if people won't

[00:33:30] take these jobs and many of them do it for nothing you know they come vote as they disoperate as

[00:33:35] poll workers as a public service and they don't deserve to be mistreated where it happens but

[00:33:41] states are moving to take steps to try to deter this I have a chicken and egg set of thoughts in

[00:33:49] my own head and there's except that the chain is more complicated than a single chicken and a single

[00:33:53] egg that is the first thing that needs to be done right you know it's kind of who started the fire

[00:33:59] it is the first thing needs to be done we protect the ballot is the first thing to be done we address

[00:34:02] communications capacity so that there's a there's a greater share of shared values or at least

[00:34:10] shared factual understandings in the country or do you need to build grassroots capacity so that in

[00:34:15] fact pro-democracy folks are more likely to be an earlier stage elective power or does it go even

[00:34:21] earlier so we've got to make sure there that wealth disparities aren't growing with to such a

[00:34:27] degree that oligarchic capital could just buy democracy cheaper and cheaper relative to their

[00:34:31] overall budgets right and I can go you know right I mean I and I probably could go further with smaller

[00:34:36] and smaller eggs or bigger and bigger chickens but but where do you and and as somebody who's

[00:34:42] had a argue case sports cream court one of the strengths you will obviously have is your ability to

[00:34:46] focus not try to do everything as throw it say but do something at as you think about the most recent

[00:34:54] the most nearby co-tenants in a shopping mall of saving democracy right like who are who are

[00:35:01] you're adjacencies that to you are like you're rooting on most most fervently but might not be the

[00:35:08] 91st or 92nd employer the 4th or 5th program at the campaign legal center what else you thinking

[00:35:14] is really important that he's be happening out there well I think that you mentioned that we

[00:35:18] really need to start educating people to understand that democracy works that the outcomes that

[00:35:27] that are being produced by our system are legitimate and fair and honest and and to come back to

[00:35:34] a be believers in democracy because there's an awful lot of people out there now who are no longer

[00:35:41] really committed to democracy and also who think that the American democratic system is thoroughly

[00:35:47] corrupt and terrible and it's just not true and so we are we're doing a certain amount of this

[00:35:54] education but it I think it's something that's going to take a generation to fix because

[00:36:00] it's been so ingrained in the minds of so many people that that it's going to be a long-term

[00:36:06] struggle to get people's faith in the democracy back and that that is essential ultimately you

[00:36:12] can't have the system work if people don't believe it in what have I missed what are areas of focus for

[00:36:20] the organization which wouldn't be a perfect laundry list of the kind of emergent battles

[00:36:27] around democracy but at least would be a short list about which people should be aware.

[00:36:32] Well we have a group of people who spend their time dealing with redistricting

[00:36:38] with making sure there are equal opportunities for people of color to elect candidates of choice

[00:36:43] so also address partisan gerrymandering we have we're very essentially involved in the case in

[00:36:48] the Wisconsin Supreme Court that's trying to finally fix the Wisconsin Assembly District map which

[00:36:54] is the most egregious gerrymandor I have ever seen and has been essentially in place now for

[00:37:01] 14 years and producing completely public policy that is completely at odds with the political

[00:37:07] leanings of the people in that state. We have people worry about efforts to make it harder

[00:37:14] for people to register and vote we have been trial and Arizona about that recently

[00:37:20] then of course as we mentioned the campaign finance system is not strong and needs to be pushed

[00:37:27] to do a better job to prevent money from dominating in the way that it sometimes does

[00:37:35] and you know also this year we also have a whole program of trying to make sure that the election

[00:37:41] isn't stolen between election day and an auguration day the lesson of 2020 is such that we want to

[00:37:51] be as vigilant as we can be to be unguarded to make sure that the right electors are chosen

[00:37:56] and when they vote those votes are countered by Congress and the right person takes office

[00:38:01] whatever the people decide we're not partisan in that sense but that is a

[00:38:06] a minimum of what we have to do right now is worry about those things.

[00:38:12] So let's use word partisan let me dwell there for a moment when

[00:38:18] when I first started paying attention to this stuff it seemed to me that the most

[00:38:23] trans partisan to say nothing of bipartisan the most fundamental foundational

[00:38:31] agreement point that I would have with my with my justice,

[00:38:39] Rehnquist enthusiast friend would be that at least we're together on the idea

[00:38:46] the democracy is something that we should have and care about and work on

[00:38:52] and it never occurred to me it occurred to me in the deep south right and not even just the deep south

[00:38:59] that trying to disenfranchise black voters and not just black voters is not a new thing right but

[00:39:05] but nonetheless it I had this sense there was at least a 70% consensus maybe better net

[00:39:15] that hey we're all kind of trying to be on the same joke and just trying to make sure this is

[00:39:19] this is working. How do you navigate that now and you lurked for justice pal who was nobody's

[00:39:28] fire haired socialist right justice justice pal who before that wrote the pal memo that helped

[00:39:34] lay out much of the either predict or either predict anticipate or even help to shape which has

[00:39:42] become much of the modern conservative movement. How do you now see there's a million questions I

[00:39:50] could ask about this and I actually do want to ask about about justice pal before that how do

[00:39:56] you now see sort of the partisan landscape and how do you navigate that landscape to be able to

[00:40:01] have democracy values not just one political party values but at the same time not pretend

[00:40:06] that this stuff is 50 50 equivalent symmetrical and everybody's working towards the same end of having

[00:40:12] a strong democracy. You know a big part of our brand is to be nonpartisan slash bipartisan

[00:40:18] yeah you know our president and founder was was is a republican he was McCain's general counsel he

[00:40:24] was also chair of the federal election commission as a republican. Common cause was was invented by

[00:40:29] Republican right same same sort of story keep going we try very hard to not let partisanship come

[00:40:36] into our decision making or anything like that it is true that it's challenging these days in

[00:40:42] that the people who are most likely to be interfering with democracy or losing faith in democracy

[00:40:50] tend to be on one side of the aisle and not the other and that's just the way it is thanks to

[00:40:54] Mr. Trump and a lot of his friends frankly and so but you know we had there are many other people

[00:41:01] in the conservative movement in the in the republican party who's still strong but

[00:41:05] fervent believers in democracy and are frankly appalled if some of the things that are going on so

[00:41:11] you know we try to find those people and build build allies ships with them and use their trust

[00:41:17] as them as trusted messengers because those are the people who get listened to when you try to

[00:41:22] convince people to come back and you know continue their adherence to democracy their belief in the

[00:41:29] system all the things that are going to make the system work if we can save it.

[00:41:34] Oh, clicking for a judge I was going to say is I'm fair to say is but at least can be a precious

[00:41:41] relationship right my judge for whom I clerked passed away recently I was there with his wife

[00:41:47] along with lots of other clerks his former clerks and and we even said he had a strong marriage

[00:41:53] he was born 50 years of the day for me so I always remember what birthday was and he died of the

[00:41:57] age of 99 and I thought he died of the age 99 because he got to be arrogant if he lived to 100

[00:42:01] John Wooden had the same had the same feeling I worried Jimmy Carter may have the same but the

[00:42:06] and she just passed away recently you know like within within months of him passing away and within

[00:42:13] days of this conversation so it's on my mind and so and with that in mind of course your my

[00:42:18] assumption would be the relationship which I said power would be a would be a special one that you

[00:42:22] honor and of course confidence as you would not betray and as I think about the

[00:42:30] the sort of trajectory of American politics and trajectory of of even the conversation around

[00:42:37] democracy lose power play to really important role and I suspect had a trajectory in his own life

[00:42:43] a trajectory in his own values trajectory in his own and and I would be fascinated even

[00:42:47] to have a conversation with him in the year 2024 about where he sees or the state of politics now

[00:42:54] what what how is that experience at least shaped you or as you have fake real conversations that

[00:43:01] happened already or fake conversations your head with your with your former just how do you think

[00:43:06] about when he was in practice was intended to be a conservative fellow wrote this memo that got

[00:43:13] the chamber of commerce to get involved in writing amicus briefs and all that sort of thing as a

[00:43:17] justice he was a centrist of really kind of a balancer centrist the precursor to justice of

[00:43:26] honor and then to justice Kennedy a person that I didn't agree with all the time but often did

[00:43:33] and a person that you could respect for always trying to get it right in what and had the country's

[00:43:40] best interest in mind 100% of the time and so he was a very easy person to click for even as

[00:43:46] a person more liberal than him as I was then and I guess I still am and he he did grow in the job

[00:43:56] as a corporate lawyer didn't know much about the constitution when he came in and had to kind

[00:44:01] of figure it all out as time went on and he I think kind of harkened back to the he was from Virginia

[00:44:10] the Virginia tradition of Thomas Jefferson and belief in individual rights and oftentimes would

[00:44:16] get to a good answer that way so I was a wonderful relationship and you know in terms of betraying

[00:44:23] confidence is he put every single memo in his files up on the internet what he after he passed so

[00:44:29] it's all that Washington Lee you can you can see every memo I ever wrote him or

[00:44:33] or it is almost strange to see all that stuff 40 some years later out there to be read by anybody at any time

[00:44:45] no that's amazing so that means that's actually fascinating so I also I also clerked for a

[00:44:51] public appointed judge and the who was more conservative than I but same thing right would

[00:44:56] and had expressed expressed concerns about the direction of of the of the partisan divide during his

[00:45:04] during his lifetime and was not by by the end of his life probably considered certainly by

[00:45:08] conservatives as conservative judge but but it certainly viewed himself as such and I don't like

[00:45:19] I'm trying to think back to notes that I wrote and I was cognizant I was cognizant the professional

[00:45:25] there was a professional circumstance I was cognizant that you know that it mattered so I don't

[00:45:29] think there'd be terribly embarrassing but yeah no and and the fact that stuff that you wrote is now

[00:45:35] in the federal register the stuff that you wrote is now you know is is now published material and

[00:45:41] somebody who cared could go track the origin of that and they do

[00:45:45] so as you imagine let's do fears and hopes water is you in your dour moments now maybe it's

[00:45:57] in moments when you're just concerned maybe it's even as you're having conversations with people

[00:46:04] who are funding and supporting and doing the work that you do what's your dour concern I don't

[00:46:11] use the word prediction but if we're thinking about kind of confidence intervals and

[00:46:15] and and and we're not worst case but sort of bad case scenarios where do you fear we might go

[00:46:21] if things don't go good well the democracy might just fail uh you know and we have spent since

[00:46:27] 2020 a lot of time and effort to fix the laws at the federal level at the state level

[00:46:33] to make it harder for people to prevent the democratic outcome in a presidential election from

[00:46:39] being the one that takes office but it still could happen uh there's an awful lot of people

[00:46:45] who seem to be more interested in making sure their side is in power than then to follow the

[00:46:51] electorate and so that that I worry about uh and you know an awful lot of people are worrying

[00:46:56] about whether this is the the time when we go from a democratic country to a much less democratic

[00:47:03] country because we're no longer really respecting the will of the people majority rule that's

[00:47:08] the obviously the thing you worry about so to hopes if you're thinking instead about again not best case

[00:47:14] scenario but but borderline realistic case scenario where you inspire uh not only fellow colleagues

[00:47:22] of yours in your generation but also a generation below and two generations below we recapture

[00:47:28] the the imagination the positive enthusiasm democracy in the United States how do you paint a

[00:47:34] picture of what the future world could look like that gives you joy or gives you hope? Well I think

[00:47:39] we are a point where if everything goes right um we could fix a lot of the flaws in our democracy and

[00:47:46] begin to rebuild confidence in it um and you know a lot could be done by a congress willing to defend

[00:47:53] civil rights and voting rights and and we just have to elect that congress and have a president

[00:47:57] willing to sign that legislation uh there was there's so much that could be done to to fix it and then

[00:48:06] once it's fixed to start educating people on why we should be thrilled that we have a better

[00:48:12] democracy than we had before and and and be committed to protecting it so I I have hopes that all

[00:48:19] of that good stuff can happen as well and we're it's an interesting inflection point we're at right now

[00:48:24] as a country. Anything here's my lazy question anything I should have asked you about

[00:48:30] that I'd be an idiot if I didn't or that I already haven't you know I think we pretty much covered

[00:48:35] the water for a Jeff I mean in terms of what is on my mind these days and what we're doing at

[00:48:39] campaign legal center but I really appreciate the opportunity to uh to talk about it and it was

[00:48:44] nice to have a few digressions into things like lurking for justice Powell which I haven't had been

[00:48:49] interviewed about in recent times. Well the joy is ours we've been talking today with Paul Smith

[00:48:56] senior vice president of the campaign legal center about legal challenges to the ballot and this

[00:49:00] year's election and beyond what's happening with democracy and really from the heart man thank you

[00:49:05] for what you do thank you for taking this time we really appreciate it. Well thank you for being

[00:49:10] a democracy nerd letting people know what's going on and thank you for being a democracy nerd

[00:49:15] you well and people check out the campaign legal center cheers. Take care. Democracy nerds are

[00:49:22] quoted in sunny Portland Oregon produced by Kyle Curtis thanks also to technical producer SIG Seeliger

[00:49:28] logo designed by Kat Buckley at K Buckley Graphics.com I am Jefferson Smith thank you so much for

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[00:49:40] you too. Past episodes of the show democracy nerd can be found online at democracy nerd.us

[00:49:46] go America thank you thank you democracy