In this episode of "Democracy Nerd," host Jefferson Smith engages in a crucial discussion with Paul Smith, the Senior Vice President at the Campaign Legal Center, shedding light on the mounting legal challenges surrounding ballot access heading into the 2024 election year.
The conversation begins with the recent federal court action in North Dakota, where a judge dismissed a challenge regarding the validity of counting absentee ballots postmarked by Election Day. Smith provides insightful analysis on the significance of this ruling and its implications for preserving the integrity of the electoral process.
Other topics discussed include the alarming trend of voter purges, prompting Smith to offer guidance to listeners on what steps to take if they suspect they've been incorrectly removed from voter rolls, ensuring their ability to participate in the electoral process.
This episode also addresses the disturbing escalation in threats of violence targeting election workers. Smith addresses the implications of such threats and underscores the urgent need to ensure the safety and security of those tasked with administering elections.
Overall, Paul Smith from the Campaign Legal Center underscores the critical importance of upholding voter rights, combating voter suppression tactics, and fortifying the foundations of democracy in the face of mounting challenges.
Campaign Legal Center's website
CLC's Voter Purge Legislative Resource Guide
Judge dismisses election official's mail ballot lawsuit in North Dakota (Associated Press)
Election officials go on offense to prevent disruptions of 2024 vote (Washington Post)
[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