Voting is Civil Rights Movement of 2020
Air Date: October 26, 2020
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. I’m honored to welcome Kristen Clarke to our broadcast today. She leads the Lawyers Committee for Civil Rights Under the Law. It’s such a pleasure to have you on our program today. Thanks so much for joining me.
CLARKE: Thank you for having me.
HEFFNER: Kristen as we get into these final days before the Election Day, you’re doing some of the most vital work to ensure access to the ballot. What is top of mind for you right now?
CLARKE: Top of mind is the pandemic which continues to rage across the country. And, you know, it’s disheartening to think about the way that it has upended life in every aspect. It’s changed how we work, how we go to school, and it’s had a dramatic impact on our elections. And we saw that this primary season, we saw people really put into a very tough position in some states of having to choose between their health and exercising the right to vote. So one of the things that my organization is doing right now, each and every day is fighting to tear down the barriers and restrictions to absentee voting, to Vote by Mail. We want to make sure that voters this season have every avenue available to them in order to exercise their right to vote and ensure that their voice can be heard in this consequential election.
HEFFNER: In a federal court system that has now been rigged in opposition to the franchise, in opposition to free and fair elections. How successful have you been in making that fight?
CLARKE: We’ve had some success and we’ve had some wins, you know, the Trump Administration, for one example you know, tends to run afoul of federal laws like the APA, the Administrative Procedures Act. We’ve seen with this administration that they will just kind of wake up and put in place an Executive Order without going through and taking the follow the proper steps. And so we’ve had some success this season, but you’re exactly right. The courts are shifting dramatically. There are now over 200 judges who have been put into lifetime positions on our district and circuit courts, some of them bring records that reflect hostility when it comes to civil rights and to voting rights; we do our level best to present the facts as we find them and to make our case, when we stand up in a court of law. We do our best to stand up for impacted communities. We do our best to stand up for our clients and fight for justice and to fight to ensure that they have voice in our democracy.
HEFFNER: Despite the fact that Floridians voted in a recent election cycle to ensure that the franchise is intact for those who are formerly incarcerated, the governor and the legislature there have insisted, and the courts have now upheld, what is tantamount to a poll tax on formerly incarcerated individuals. Is there anything that you can do given that the court has ruled as it has to enable those folks to vote, even if they can’t afford to pay what the state is requiring?
CLARKE: The situation in Florida is nothing short of a travesty. Voters went to the ballot box and very clearly passed a ballot initiative, making clear their intent to restore the right to vote for people with criminal histories. And it is simply shameful that the legislature undermined the will of the people by adopting a law that imposed a new burden that they pay off fines and fees. And the facts have shown that for many people who are impacted here, it’s hard to even find out if you owe fines or fees, or to find out how much you may owe; and heartbreaking that somebody’s poverty, literally somebody’s poverty can be what is standing between them and the ballot box this season. The other aspect of this story is, again what’s happening with the courts. The 11th circuit has changed dramatically under the Trump Administration. Now half of the judges that sit on that court have been nominated by President Trump. And again, many of them bring records that reflect preexisting hostility to civil rights. So you know, this, I think is one of the tragic stories of the 2020 election season. We’ll see if the litigants in that case choose to go up to the United States Supreme Court. My guess is that we’re just really running out of time to put in place a proper resolution that would ensure that those people have voice in November.
HEFFNER: Kristen, is it true that there is at least one organization that is helping those with past criminal records who are now free to pay off those expenses?
CLARKE: Yeah. There are a number of groups that have done a lot of fundraising. My organization the Lawyers Committee for Civil Rights Under Law has partnered with More Than a Vote, an organization started by LeBron James, who himself has been leading up fundraising effort to help make it easier for people to pay off fines and fees, but it’s a real bureaucratic hurdle and ultimately a restriction that will likely lockout thousands of people from the ballot box this November merely because of something in their past.
HEFFNER: And I do want to ask you about voter suppression in the rust belt in some of the incredibly important electoral contests. But first I wanted your reaction to a series of PSAs that we and the News Literacy Project made and that are airing nationally. And in some of those important battlegrounds cities and states we’re going to play them now and then I’d love your reaction.
VIDEO, PSA NARRATION: “Voting is how you can help preserve and participate in democracy. There are several legal and secure ways to cast your ballot during the pandemic that are safe. All states allow voting by mail. Studies show it is reliable and voter fraud is rare. 40 states allow early voting in person too, and you can still go to the polls on Election Day, November 3rd, you cannot vote by text on social media or over the Internet, and the election cannot be postponed or canceled. Voting depends on you. Democracy depends on us.”
VIDEO, PSA 2 NARRATION: “With the November election on the horizon we all need to critically examine the information we read and share. Your friends and family may share your views, but we all need to challenge ourselves to break out of our bubbles. Look at a variety of news sources to see if the claim being reported is accurate while always staying alert to misinformation. We tend to lean into what feels right and ignore what doesn’t. Be receptive to news that may challenge your assumptions. Voting depends on you. Democracy depends on us.”
VIDEO, PSA 3 NARRATION: “As the election approaches, we need to be on the lookout for fraudulent content masquerading as the real deal. If you see a damaging post, image, or story about a candidate, make sure to verify whether it’s authentic or not before you share it. Falsehoods spread much faster than facts. Whether it’s a claim of long lines at the polling site to keep us away or fake videos to sway our votes, let’s make sure to double check our facts before we act. Voting depends on you. Democracy depends on us.”
VIDEO, PSA 4 NARRATION: “Deciding who to vote for is important. There are people, organizations and governments trying to trip us up, manipulate our vote, or keep us from voting altogether. Watch out for phrases that frequently accompany political disinformation, like make this go viral or conspiratorial statements like the media won’t cover this or attempts to pray on our emotions like just let that sink in. It’s your vote, not theirs. Voting depends on you. Democracy depends on us.”
CLARKE: They get at a lot of the issues that are front of mind for many lawyers and advocates this season. Election disinformation is one huge area of concern. It’s so easy for disinformation to go viral in this era that we’re in, and encouraging people to just press pause and to really verify the accuracy of information that they’re seeing and receiving before they share it and allow it to go viral in their network is incredibly important. And I love that this kind of disabuses people of certain myths. You cannot vote online, you cannot vote by text. And yeah, I think they’re all really great and they send out an empowering message, right? That at the end of the day, this is all about you: you exercising your power and your voice.
HEFFNER: How much are you in the legal community monitoring developments in some of the cities in the swing states?
CLARKE: Well, my organization focuses on safeguarding, the rights of African Americans, Latinos, people of color. And so we really look at the issue of voter suppression through a racial justice lens. That said, a lot of the problems that we are seeing this season are happening in places like Georgia and Texas and Pennsylvania. And so these are states that are keeping us very busy right now. We’re filing lawsuits, you know; against officials that are poised to reject absentee ballots over alleged signature mismatch without giving voters notice and an opportunity to cure. We’re suing States like Indiana that imposed premature deadlines for returning absentee ballots. In Indiana, you’ve got to have your ballot in by noon on Election Day. And what we found in the primary is that that premature deadline literally disenfranchised thousands of people. We’re filing suits against states that are requiring that your absentee ballot being notarized. So this season is keeping us busy. We’ve in total filed close to two dozen lawsuits since the start of the pandemic.
HEFFNER: That’s amazing. And I’m glad you can get into greater detail. It’s why we are so pleased to host you right now, because those are 30 second spots, but the specific provisions in each state, some of which may be unconstitutional, really depend on your ensuring that voting access is clear. And so when it comes to signatures, when it comes to deadlines, those provisions may not allow necessarily you to have the right that you ought to have.
CLARKE: Yeah, and we have a very decentralized system across our country. All 50 states have different rules for registering, for voting, different timelines. And so it’s really important that people take some steps now to understand what their options are in their state. We’re in the courts working to lift the barrier so that hopefully more people have access, but now is a great time for people to take action and to make sure that they are one, registered; two, to make sure that they are an active registered voter who will be receiving mail that may be sent by election officials that could include things like absentee ballot applications or the absentee ballots themselves. Now’s a good time to make a plan for how you intend to vote. Are you somebody who will vote by mail this season? Are you somebody who wants to vote in person during the early voting season or are you somebody who’s going to wait and vote in person on Election Day? And do you know where your polling site is and what the hours are for voting? This season is one where we’re really encouraging people to not wait until the last minute to figure those things out. We really want people to kind of look at the months of September and October as election season, and to really put a game plan in place. One thing that we do at the Lawyer’s Committee is we run a nonpartisan voter protection program it’s called Election Protection, and it’s the nation’s largest and longest running nonpartisan voter protection effort. It’s anchored by a hotline 866 Our Vote, 866 Our Vote. And so people can plug that number into their phones, share it with their networks and use it as a resource to get trusted information and to help make a plan for how they will vote this season.
HEFFNER: What are the experiences in Georgia and Wisconsin specifically during the primary and caucus cycle and the special election cycle? What did they teach us and are we more prepared today than we were then?
CLARKE: Yeah, Georgia and Wisconsin are kind of textbook examples of how not to hold an election in the middle of a pandemic. Many of us saw the heartbreaking images of people standing on lines that stretched for hours in Milwaukee where they reduced the number of polling sites from 180 to five. You had people standing out in garbage bags and plastic, you know, hoods over their head, bracing the rain at certain points during the day. And at some points it became hard to comply with social distancing obligations. We do not need a repeat of that in November, especially when we know that we’re bracing for historic levels of participation during this general election season, Georgia did some things right. They actually nailed out absentee ballots to many voters, but they used an out of state vendor that made many errors. They use an out of state vendor that sent those ballots to the wrong address. They sent ballots that didn’t have a return address on the envelope. And so literally, literally tens of thousands, tens of thousands of absentee ballots needed to be re-mailed to voters. But there were some voters that didn’t get their ballots on time. So they had to go out and vote in person. And there too, we saw long lines, people reading books, and, you know, just really trying to, to ride it out. My organization ended up having to go to court to get poll hours extended in at least one County and pushed officials in three others to voluntarily extend hours where they just failed to get the polls up and running on time.
HEFFNER: Are you hopeful, Kristen, that despite some of the gloomy scenarios that have been described, that are based on bad past experience, that the automatic voter registration in some states, the education around Vote by Mail, absentee balloting, that all of that will lead to record historic turnout and with access for people largely intact?
CLARKE: I am confident I am hopeful because this is an all hands on deck moment. There are literally hundreds of organizations, not just mine, hundreds of organizations that are working on voter education, that are working to get out the vote that are working to make it a little easier for people to navigate absentee voting especially those who are doing it for the first time. My job as a civil rights lawyer is to make sure that we’re not ignoring the barriers and restrictions and that we’re fighting the opponents that are also in court and seeking to actually pile on restrictions and barriers. And they’re doing things like fighting the use of drop boxes that are another option that voters can use to return absentee ballots. So kind of on the periphery, you’ve got a lot of litigation, but at the heart of democracy right now, we’ve got a lot of people working to make sure that people can have their voice heard. So overall I’m maintaining a sense of optimism.
HEFFNER: One of the problems though, and I’m heartened hear that; one of the problem is, is that some lawsuits are now revolving around when states can print their ballots and not getting people access to the ballot. They are educated. Now they want to vote early or by mail, but ballots haven’t been printed. Aren’t there some States where that’s been an issue?
CLARKE: Yeah. That is an issue. This slow down strategy. This slow down tactic is something that we’re seeing. That’s an issue right now in Wisconsin, for example, and it doesn’t feel coincidental, the states where we’re seeing a lot of these issues. That said it’s still a great moment to make sure that you’re, you know, just putting your plan in place, making sure that you and everyone around you is registered to vote. Presidential general elections are when we tend to see the historic, you know, historic numbers of people you know, registering to vote and getting ready to activate. And so hopefully the lawsuits will bear fruit soon. Hopefully people will have patience, but in the meantime, there’s still a lot that we can do to kind of get ready.
HEFFNER: Ultimately, you mentioned how decentralized the vote in our country is, and given how public institutions have been degraded over these last few years, do you have any concern about the integrity of Secretaries of State to, you know, manage the electoral process and to basically administer the election ultimately?
CLARKE: You know, I’ve been in engaging and interacting with a fair number of Secretaries of State, Republican and Democratic. And I have to tell you that overall, a lot of them have experience with Vote by Mail. This is not new. Vote by Mail actually extends back to the 18 hundreds in our country. When members of the military cast ballots during the Civil War. We’ve got at least five states that are almost all Vote by Mail; over a dozen more that have had, you know, roughly 50 percent or more of the electorate Vote by Mail in the last presidential election. And so you think there are a lot of election officials who are trying to do the right thing, but looming heavy, our opponents are people who are all about promoting voter suppression and silencing the voices of people of color and vulnerable communities. And then we’ve got President Trump who often uses his social media platform as a bullhorn to spread disinformation. And we’ve started to see Twitter take some action to correct that. But you know, overall I think favorably of Secretaries of State and election officials who for the most are trying to do the right thing,
HEFFNER: Kristen, in the minutes we have left, I want to talk about Election Day and the days subsequent. The media are starting to understand social and broadcast that the results may not be evidenced the night or in the immediate days after the election. Votes have to be counted. Media can’t make projections until each state says 99 percent of votes have been counted in Michigan, in Wisconsin, in Pennsylvania. So we know that. Alert to anyone who’s not aware. We know that. But we don’t know how the courts will handle disputes in the intervening days leading to Election Day and subsequent days. Is there a scenario in which you see President Trump attempting to contest votes in multiple states and refuse to accept an Electoral College defeat and try to take that all the way to the Supreme Court, and not a Bush v. Gore scenario where you’re looking at one state and chads, and you know, whether they’re accurately cast in Florida or in one county, but in multiple states saying these votes in Nevada are illegitimate; these votes in Pennsylvania are illegitimate. I mean, there really could be an unprecedented attempt to dishonor the Republic, the Constitution and voters, disrespect them and discount them. Could there be a scenario about, you know, multiple cases being one Supreme Court decision that would essentially either acknowledge the votes of Americans as legitimate or not.
CLARKE: You know in America we want to aspire to a democracy where everyone’s voice can be heard, where we have free and fair elections. And we want the public to have confidence in the way that our elections are run. That said there are a number of groups that have been doing some scenario planning on all of the, you know, potential outcomes that you just laid out. I’m a part of a group called the National Elections Task Force, where we have been doing some of this work and bracing for all kinds of possibilities. But I hope that the overarching message and overarching takeaway is that we want elections where people can have voice and be heard. I think there’s a lot that we’ve learned from 2020, that we make it too hard for people to participate, that we shouldn’t have rules that are so fractured across the country where voting looks dramatically different in one state than it does in a state next door. We really need to streamline the process of making it easier for people to have voice. And we need to carry forth the legacy of the late John Lewis, who gave decades of his life for fighting for one simple thing, to make sure that we can all have the right to vote. For me personally, I just want a level playing field one where everyone can be heard and may the best candidate win.
HEFFNER: Absolutely. I mean, and there definitely are scenarios in which polling stations are shut down or not available. And communities might not be able to vote in the way that John Lewis and you envision, and that could be a source for lawsuits too, but in the, but you find it hard to believe that the Supreme Court would legitimize an effort to loot the ballot. Basically say these votes are irregular. These votes are irregular. And to sort of combine them in some way that would deny an honest legitimate electoral victory in the Electoral College for one candidate. It’s hard to accept that as a scenario where multiple states’ verdicts, multiple states’ counts are disputed, and that the court would legitimize it and potentially have states redo ballots.
CLARKE: We have seen the Supreme Court do a fair amount of meddling in the 2020 election season. Certain election battles that have played out at the state level or in federal courts in states have made their way into the hands of the Supreme Court. And I’ve been surprised to see this court during a pandemic where they are themselves operating remotely poised to interject in the way that they have. So hard, hard to tell. But again, my hope is that we have an orderly election and one where everyone can really feel that they’ve got faith and confidence in the outcome at the end of the day.
HEFFNER: Kristen Clark nothing is off limits. So register, vote, participate in our democracy and thank you for the work you do to defend it all.
CLARKE: Thank you so much for having me. And, you know, one other point, vote all the way down the ballot. It’s not just the presidency that’s up this season,
CLARKE: Power matters at the local level too,
CLARKE: So make sure that even though all the way down that ballot.
HEFFNER: Up and down, thank you.
CLARKE: Thank you for having me.
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