Will COVID Paralyze the Vote in November?
Air Date: July 13, 2020
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind at home. And I’m delighted to welcome to the program today Ari Berman. He is the most devoted correspondent covering voting rights in America. And I’ve wanted to have him on the program for some time. Delighted to see you virtually. I hope you’re staying healthy, you and your family.
BERMAN: Good to see you virtually. And I am staying healthy and I hope you are too.
HEFFNER: Thank you. Ari has the urgency of this issue become even more apparent amid the pandemic?
BERMAN: Yeah, absolutely. Alexander. Voting rights has become a much bigger issue now because the simple act of voting has become so much harder. There were already considerable barriers that people had to voting in 2020. They might not have had their right IDs or their polling places might’ve been closed or they could have been removed from the voting rolls. But now you add a pandemic into it and voting is just so much more difficult when you can’t leave your home. And the main way that people vote in a pandemic is by mail. And most states in the country don’t vote by mail, in large numbers. So, there’s all these new issues now that we weren’t expecting to deal with. How do people vote safely in person? How do states go from maybe using Vote by Mail for 10 percent of the electorate to 50, 60, or 70 percent of the electorate? What are the new roadblocks that people are going to face now? So the discussion about voting has become so much more urgent because the pandemic has led to a crisis, not just in terms of public health, but it’s also led to a crisis in terms of how we’re going to run our elections and make sure that people aren’t losing the franchise.
HEFFNER: Ari, which states are getting it right and doing the due diligence and preparation that needs to be done and which are not?
BERMAN: I think it’s important to recognize first off, that some states have systems in place already that will work very well in a pandemic. So five states already vote almost entirely by mail. They are mostly western states, places like Oregon, Washington, Colorado, Utah, Hawaii, California is going to be the sixth state to do this. But basically they mail ballots to every registered voter and they’ve done mail voting for a long time and so they’re able to vote very safely in a pandemic because they’re used to sending people ballots. So those states are working well. It’s the states that haven’t done a lot of mail voting that I’m really concerned about, places like Wisconsin and Michigan and Texas. You look at those kind of places, in the last election, fewer than 10 percent of people voted absentee in those states and so a bunch of states are going to go from five, six, seven, eight percent of their people voting by mail, to 50, 60, 70 percent of people voting by mail, and that’s going to bring a whole new set of problems that I’m not really sure we’re prepared for.
HEFFNER: Among the states though that are transitioning experimentally to be responsive to the health crisis, the same question applies: are there ones that are taking leadership in making that transition and are there ones that you think we need to scrutinize because they’re not taking the necessary action or their political figures in the states are in fact opposing any kind of transition to mail ballots?
BERMAN: Yeah, so I think you can kind of tell the story by contrasting two states. One state that’s making it very easy to vote by mail right now is California. They are now the first state that’s come out and said they were going to send mail ballots to all registered voters when they weren’t previously going to do that. Now, California has already been transitioning to Vote by Mail. A lot of people voted by mail in 2018 there, but I think it’s a great step that they say they’re going to mail ballots to every registered voter. Of course, Donald Trump is very angry about that. I’m sure we’re going to talk about that at some point in this interview, but I think California is a state that’s really taking the pandemic seriously and saying if people can’t leave their homes, we need to affirmatively mail a ballot to every registered voter to make sure they’re going to be able to vote by mail. I contrast that with Texas for example, which is basically saying that if you’re under 65 you cannot cite coronavirus as a reason why you want to get an absentee ballot. So Texas is one of 16 states that says you need an excuse to get an absentee ballot. And they have defined that excuse extremely narrowly, basically to say that the only reason you can vote by mail is if you’re over 65 or you’re incarcerated or you’re out of town. So if you’re under 65 and you’re afraid of getting coronavirus, Texas is basically saying you can’t vote by mail, well, that’s going to leave millions and millions and millions of people in Texas unable to vote by mail and have to essentially choose between their health and their ballot when it comes to voting in November. So that’s the kind of situation that I’m very, very concerned about, that coronavirus has completely up ended how people are going to vote, but states aren’t taking the actions to modify their election rules in response to that.
HEFFNER: Ari, what is the latest out of Ohio where the governor was seen as responsive to the public health crisis and immediately signaled that there would be accessible balloting amid the COVID outbreak?
BERMAN: So the Ohio governor took very aggressive steps to try to ensure that people could vote safely. He postponed the primary; the Republican Secretary of State there sent absentee ballot requests to all registered voters so they could easily get an absentee ballot. And I think that shows that this isn’t necessarily as partisan of an issue in the states as it seems nationally. At the same moment that Donald Trump is demonizing Vote by Mail and claiming without any evidence that it’s going to lead to higher forms of voter fraud, you have Republican governors, Republican Secretaries of State in places like Ohio and Iowa and other states that are pushing to expand Vote by Mail because they know it’s the safest way to vote in a pandemic.
HEFFNER: So we tend to focus when it comes to voting rights on states where the electoral contests are most decisive to the outcome. I mean, is that a fair way to look at it?
BERMAN: I think that’s how we tend to focus, but I’m not sure that’s always correct. If you look historically at the battle for voting rights, it took place in places in the South that weren’t necessarily battlegrounds when it came to presidential elections, but that were extremely important when it came to civil rights in this country. And so I think those states are really important. I don’t think we can just ignore what’s happening in Alabama or Mississippi because it’s no longer a swing state. People’s votes matter there just as much as they matter elsewhere. But it’s also certainly true that the fight for voting rights has now moved in many cases to the swing states and places like Florida and Wisconsin and Michigan. These are places that might not have historically been ground zero for the fight for voting rights, but they’re ground zero today as these fights become less regional and more about the intersection of race and party. And so there’s new battlegrounds when it comes to the fight for voting rights. And many of those battlegrounds just so happen to be swing states because that’s where the margins are the narrowest and that’s where one party is desperately trying to get an advantage over the other.
HEFFNER: What kinds of legal situations do you think will arise in these coming weeks and months and how can we be prepared as a citizenry to respond to instability when it comes to the law’s ability to protect us?
BERMAN: There are so many new battlegrounds right now, especially when it comes to Vote by Mail, so little details matter a whole lot in terms of whether or not people are going to have the right to vote and whether or not their votes are going to be counted, so little things like can ballots be thrown out if the signature on your absentee ballot doesn’t match the signature on file, tens of thousands of ballots are thrown out for that reason. Do you need, for example, to get a witness signature on your ballot at a time of social distancing? That was one of the restrictive requirements in Wisconsin in April that led to a lot of ballots being thrown out because people couldn’t find someone to witness their signature if they were at home alone social distancing. So little restrictions like that, does your ballot have to be received or postmarked by Election Day? These are very, very technical issues, but they’re going to go a long way to deciding whether hundreds of thousands of people are able to vote and have their ballots counted in 2020 if indeed they decide to Vote by Mail.
HEFFNER: So those are the technical issues when it comes to that form of remote balloting, absentee or mail voting. There also is discussion about early voting, extending early voting periods, drive-throughs to vote. What are some of those innovative methods being explored to socially distance and vote this November?
BERMAN: Yeah. The CDC recommends early voting along with mail voting as their top response in terms of how to hold an election safely in a pandemic because if you give people more time to vote, you can space voting out and social distance better at the polls. One of the problems we saw and Wisconsin’s election April was that cities like Milwaukee closed so many polling places. So the fewer polling places you have, the longer the lines are going to be when people decide to vote in person. So I think states are looking at extending their early voting periods. They’re looking at people being able to drop their ballots off. They’re looking at trying to do curbside voting so you can just vote in your car and drop your ballot off. I think all those kinds of things are going to be really important. I think we have to realize that Vote by Mail is going to be key in November, but a lot of people are still going to want to vote in person for many different reasons. They don’t trust mail voting or they live in areas with remote mail access or they don’t qualify for a mail ballot because of all the restrictions on mail voting. So even if let’s say 50 percent of the public votes by mail, that still means half the electorate is going to vote in person. We have to make sure there’s enough time to vote, there’s enough polling place for people to safely vote at, there’s election workers, many election workers are over 65 so that the highest risk categories, they’re going to need new and younger election workers. So all of this is really, really important and a lot of the in-person voting stuff has been overlooked by all the discussion around Vote by Mail.
HEFFNER: Ari, how will you test the integrity of 2020 relative to 2016 you know, if you were going to look at Election Day and see the returns coming in, one thing we know is it’s going to be a week-long process to really count all the ballots. Beyond that issue of public perception, being cognizant of the fact that the count is ongoing beyond 24 hours, what will, they’re going to always be tactics to suppress the vote and depress turnout, but what to you at the end of the day of this 2020 election would be the criteria you’re assessing to see if it was a free and fair election?
BERMAN: What I’m going to really look at is the barriers that were placed in front of voters before Election Day or before whenever people start casting ballots and then I’m going to look at how many ballots have been thrown out. Are we going to see a huge number of ballots thrown out because so many people voted by mail but didn’t know the rules, or election officials interpreted those rules in a very restrictive way? Were people not allowed to vote in person because there were so few polling places for them to do so safely? Those are the kinds of things that people are asking right now. What are the conditions under which the election is going to take place because this presidential election is going to be so different than any presidential election before it and the risk of disenfranchisement is so much higher now than it was in 2016, so I think we’re going to start looking at those metrics and I think we’ll have a good sense before Election Day of how many problems there’ll be by the rules that were put in place before then. And then as you say, people are going to have to understand that if more people vote by mail, it’s going to take longer to count those ballots and that we shouldn’t expect the kind of instant gratification that we’re used to in terms of the polls closed and five, ten, twenty minutes later or a few hours later, a winner is declared. It’s going to take a long time if more votes are counted. That’s not because of voter fraud. That’s not because of one party trying to steal the election. That’s just because this is how the election is going to take place. And I think they did a really good thing in Wisconsin, which is, they said the election was on April 17th but we’re not going to count the votes at all ‘till a week later. So there was no squabbling over the counts. And basically that night they were able, a week later they were able to treat the election like it was election night. But they were confident they were able to count all the ballots that had come in. I think we have to look at some sort of system like that for 2020, otherwise you’re going to get a situation where one candidate might be ahead, but so many ballots aren’t counted and then a few days later the lead could change and people are going to believe there’s some sort of nefarious activity going on when all election officials are doing are counting ballots that that arrived in time, but take longer to count.
HEFFNER: What about socially distant voter registration? I mean, are you able to register in most states and most municipalities at this moment without having to have that same human contact? Will you be looking at the number of people who registered from the spring through whatever time is allowable, you know, in the fall?
BERMAN: Yeah, I’m looking at that right now. Forty states allow online registration, so you are able to register to vote online in most states. But a lot of people still register in person. They still register in person for example, when they go to the DMV and they’re asked, do you want to register to vote? Or some states automatically register people to vote. They’re not doing that now. A lot of people register through voter registration drives outside the supermarket or at a park, or at a concert. People aren’t doing those kinds of things now. So voter registration has plunged. The data I’ve seen is that voter registration basically in a lot of key states is half of what it was in 2020 compared to the same period in 2016 so many fewer people are going out and many fewer people are registering to vote and I’m particularly concerned that a lot of new voters that would have entered the process may not be able to register in time for November. So that’s a big concern of mine. It’s a big concern for people that study voting rights, is that voter registrations are flat at a time when, or down at a time in a presidential year when they should be going way up. Millions and millions of people register for the first time in a presidential year and we’re not seeing those numbers right now.
HEFFNER: You don’t hear that. No one’s really discussing that.
BERMAN: It’s been overshadowed by so many other things that are happening, but it would make sense that all the groups that are usually geared up to registered voters in person, they’re not able to do that now. And so voters are basically left on their own. Some of them may decide to register online. Some of them might not be able to register online, but there’s a huge component to in-person voter registration in this country that’s been sidetracked and they don’t know whether it’s something they’re going to be able to do in the fall whether conditions ultimately improve.
HEFFNER: But I suppose that it didn’t even occur to me to ask you this, but are states being responsible and innovative and realizing they don’t just have to prepare for Election Day, but there’s the preparation they should be doing, or should have done already to allow people to register in a way that is safe and encourages good, good health. Are states taking steps to make further transparent and clear how they can still register even though, you know, sheltering in place is occurring?
BERMAN: Some. Just like with everything, some states are and some states aren’t. There are some states that have allowed you to register online where you couldn’t before. North Carolina comes to mind as one of those states. And there are other states that are sticking with the law, like in Texas where they didn’t have online registration before, and they don’t have online registration now. And to me it’s still completely insane that there are ten states with no online registration and in the middle of a pandemic they’re not allowing people to register to vote online. I mean at the bare minimum, online registration should be available in all 50 states. I mean that shouldn’t even be anything that’s controversial. And the fact that the U.S. doesn’t even have online registration in all 50 states just shows how broken and antiquated our voting system is.
HEFFNER: What do you hope can be achieved in legitimizing democracy this November that can be a bedrock for how we restore the vote beyond November?
BERMAN: I hope we put in place rules that allow as many people as possible to cast a ballot and we keep those rules for future elections. I think it makes sense to allow people the opportunity to vote by mail if they want to vote by mail in this day and age. I think it also makes sense to give people as much time as they need to be able to vote in person. The whole concept of Election Day on a Tuesday in November is a totally antiquated concept. We vote on a Tuesday in November because that’s when farmers used to bring their crops to the market in the 1800s, it’s, it’s a completely old fashioned system, so I don’t want, I don’t want people to think there’s an Election Day, it’s one day on a Tuesday in November and you have to vote in person. I think we need to give people a whole lot of different options in terms of how they vote. The easier you make this process, the more people will participate. The harder you make the process, the more people will get shut out and right now my concern is that we’ve made the process very, very difficult. Coronavirus has added a huge layer of additional voter suppression, in that people are going to have more barriers to navigate than ever before at a time when they’re already facing unprecedented public health challenges. So I’m very concerned about what needs to happen between now and November to make sure that people can safely cast a ballot ‘cause right now a bunch of states still have really restrictive rules and they are not prepared to hold an election in a pandemic on the scale of a presidential election.
HEFFNER: Ari, how do you reconcile the fact that public opinion supports total enfranchisement and often some of the measures that would make access easier, but yet the Judicial Branch in a lot of states and federally stymies what is the overwhelming public sentiment, which is to support universal suffrage and franchise, so that that is the disconnect that is always going to plague us until when?
BERMAN: Well, I think the fact is that those judges are being appointed by politicians that don’t support universal franchise. I mean, you look at, you know, Donald Trump was the one who appointed Brett Kavanaugh and Neil Gorsuch. They were voted on by Republican senators. And I think that those senators, that president have a very different view of the franchise than most of the public does. If you look at polls right now by a two to one margin, the public supports Vote by Mail. I mean it’s a pretty common sense thing that in the pandemic you would support people being able to vote from their home and yet Trump and some senior Republicans are taking a view that’s completely contrary to public opinion. And I think basically the view of Trump, the view of the Republican Party, the view of much of the judiciary is that if they change the rules of democracy, if they can shape the rules of democracy to their own benefit, then they can basically safely ignore public opinion because they’ve insulated themselves from any kind of public accountability. Now that’s easier for judges to say when they are appointed for life. It’s harder for politicians to say, but they’re basically the politicians that are appointing those judges are making the calculation that they can get away with opposing public opinion because they have shaped the rules to their own benefit. And November is going to be a really big test of that, a really big test of whether that’s true, of whether people that can do unpopular things can get away with it, or whether there’ll be some price to pay at the ballot box.
HEFFNER: In the minute we have left, Ari, what is integral to this discussion is the fact that those judges are set for life, the ones that Trump appointed, unless there’s significant judicial reform. That seems to be the single most important issue to the idea we need to expand the federal bench or expand the composition of the Supreme Court: voting rights and protecting voting rights. That’s the, that’s the principal issue connected to this. So what’s the plausible game plan for a new administration to tackle the problem? And we only have two minutes, but we’re beyond that now. So we only have a few seconds for you to answer that.
BERMAN: Well, I mean there’s, there’s ideas out there from expanding the courts to limiting lifetime appointments, for example, that Supreme Court justices would serve for 18 years and they would rotate. But I agree with you that the Supreme Court and the courts writ large are a major stumbling block to expanding voting rights because even if you get a new president, even if you get a new Congress and for example, they pass laws to restore the Voting Rights Act or to do other things, those laws are going to come before a very conservative federal bench, a very conservative Supreme Court that’s going to view the right to vote as narrowly as possible, as opposed to as expansively as possible. So I think people need to look at not just who appoints the judges, but the process under which those judges serve. And I think it’s an area that’s really overdue for some kind of reform.
HEFFNER: Ari Berman, correspondent for Mother Jones, who’s been on this beat for so many years. Thank you for the good work you do. Appreciate your time today.
BERMAN: Thanks so much for having me.
HEFFNER: Please visit The Open Mind website at Thirteen.org/OpenMind to view this program online or to access over 1,500 interviews and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.