Transcript
Larry Norden, Director, Election Reform, Democracy Program, Brennan Center for Justice
Myrna Pérez, Director, Voting Rights & Elections, Democracy Program, Brennan Center for Justice
Wendy Weiser, Vice President, Democracy Program, Brennan Center for Justice
Moderator:
Michael Waldman, President, Brennan Center for Justice
MICHAEL WALDMAN: Good afternoon, everybody. I’m Michael Waldman. I am the president of the Brennan Center for Justice at NYU School of Law. I don’t know if you can see me or not or hear me, but I hope you’re there. I hope you are all doing OK in this unsettling and difficult time. And we’re delighted to be able to be with you today.
This is a conversation, a briefing, an update on a critical topic, saving the vote in 2020 — how we can wage an election that is free and fair and secure in the middle of this coronavirus pandemic.
And I should say with gratitude that the program is being produced together with the Brademas Center at NYU, the John Brademas Center, which is dedicated in so many ways to civil debate on our politics and understanding Congress and the way our country functions.
The basic challenge we all face is this: We all know that this pandemic is a health crisis, a terrible health crisis. We know, of course, that it’s an economic crisis. But if we don’t act and urgently act in our country, it will be a democracy crisis as well. It will be a democracy crisis in November. And we saw the first omen, one of several, about this in Wisconsin in the primary last month, where voters were literally forced to choose between their health and their right to vote. And that’s a choice no American should have to make, we believe.
To me, the kind of archetypal image of this whole matter right now was when the speaker of the Wisconsin assembly on primary day, having endeavored to make sure that the primary went forward even despite the health risks, reassured voters, no, no, no, it’s fine to vote; there’s no problem. And he was at the time literally wearing a hazmat suit as he was talking to reporters. We don’t want to have to see many Wisconsins, many scenes like that, in November.
And there’s been bipartisan action, but now the president has begun to loudly weigh in and loudly complain about some of the needed changes. He went off script a bit and said he was worried that higher voting would not be good for him politically, and then remembered the script and began to worry more piously about the risk of voter fraud. But unfortunately, this has become an intense political conversation as well.
The Brennan Center for Justice and NYU School of Law, as most of you know — you are a community in so many different ways — you know that we’re in the middle of this fight for free and fair and secure elections. We’re a nonpartisan law and policy institute. We work to strengthen, improve, and defend the systems of democracy and justice. And the great challenge this year is how we make this election work out so that voters can have their say and have it said well.
As you’re about to hear from my colleagues, we’ve put together a plan of what needs to happen, ranging from universal availability of vote by mail to ample early voting and other in-person voting opportunities. We’ve all been working to try to get the necessary funding for states from Congress for this. And we’re part of a great movement nationwide, left and right and center, trying to make this democracy work in November, which is a big, big challenge in a moment like this. And Congress has only a few weeks, really, we think, to act. And you can hear about that also.
To talk about this, to answer your questions, to go into some greater depth, we’ve got the Brennan Center’s leading experts on elections and leading experts on democracy, and they will be able to bring you up to date and let you know what we think can happen, should happen, to make sure this doesn’t happen again, and we’ll be delighted to answer your questions.
So let me start by just introducing my colleagues so they can say hello, and then I’ll start with the first question. So the first person you’re going to hear from is Wendy Weiser. She’s the vice president for democracy at the Brennan Center and, of course, a national voice and expert on so many of these issues. Hi, Wendy.
WENDY WEISER: Hello, and welcome to everybody.
WALDMAN: And then after Wendy we’ll hear from Larry Norden. Larry is the director of our Election Reform Program and works on election security and how we can make these elections run well.
LARRY NORDEN: Hi, Michael. Hi, everyone.
WALDMAN: And we’re thrilled beyond words that the cameras seem to be working. So let this be an omen, a positive omen, for the fall. And then we will hear from and be in conversation with our colleague, Myrna Pérez. She is the director of the Voting Rights & Elections Program at the Brennan Center and, of course, a leading and passionate voice for voting rights.
MYRNA PÉREZ: Hey, everyone. Thanks for being here.
WALDMAN: And before we jump into the conversation, I do want to invite those of you who are listening to share your questions and your comments for the panel. Type them into the Q&A box. We’re going to take as many of them as we can during the program. We’re going to wrap up, you know, by 1:00 East Coast time.
And given the challenges that we face, why don’t we start with you, Wendy? Why don’t you tell us what you see as the big risks and what the key elements are of the Brennan Center plan that we’ll be talking in greater detail about, what the country has to do?
WEISER: Well, it is really an enormous and almost unprecedented task before us to run an election in the midst of a pandemic while maintaining both the health and safety of the public and of our democracy. And if we’re going to have a safe and fair election this November, we’re going to need to see big changes to how we run our elections, what the rules are, the practices, and the infrastructure of our election system, and I’m going to walk through just some of the key elements of what we see needs to happen.
First and foremost, we do need to make sure that every eligible American who wants to can vote by a mail ballot. This sounds obvious. You’ve thought of this yourselves and it is, in fact, the only practical option for many Americans, especially those who are sick or who are at risk. But the president and many officials in places like Missouri and Louisiana are fighting against this, and we simply can’t force Americans to [face] that choice that Michael referenced, between having to choose between their health and their right to vote.
So whether or not we make any changes to our election rules, though, we are going to see a dramatic surge in mail voting, and that’s part of what the lesson of the recent Wisconsin and Ohio elections were. In Wisconsin, without any changes to those rules, the proportion of voters using absentee ballots went from 6 percent in 2018 to over 71 percent this year, and, as we got a preview in Wisconsin, our election system is simply not yet set up or prepared in most of the country to process an election that has so many mail ballots.
We need to make a lot of adjustments now, and our election rules are going to need to be adjusted, too, to make sure that mail voting system is accessible to every eligible voter and to make sure that the counting rules are fair. And in order to process all of those mail ballots we’re also going to need to extend our time for counting ballots. Americans are going to need to get used to the idea that they’re not going to be able to see election results on election night, especially in the places with close elections.
So that’s the mail voting. But we’re also going to need to have access to safe and sanitary polling sites in every state. It’s important to know that even though we are going to need a dramatic expansion of mail ballots, it will be impossible to move to all-mail elections regardless of whether or not that would be a good idea. It’s really unrealistic to assume that we’re going to go from 3 percent or 5 percent in some states to 100 percent in a matter of months.
And also, polling locations are critical to fair elections. If you don’t receive your ballot, if there’s a problem with your ballot, if you need help voting, you are going to need to have in-person voting options. And so in order to have our polling places be safe and functional, we’re going to need to make changes to make sure that we can have social distancing and sanitation. We’re going to need to expand early voting, to spread it out over time. We don’t want to see long lines. We’re going to need larger locations. And we’re going to need to have protective equipment and sanitation equipment to make that work.
So, third, we’re going to see some changes to voter registration to make sure that registration options are available online and by other remote methods. This is a ticking time bomb. We haven’t heard a lot about this. But voter registration rates across the country have already plummeted. The government offices where people mostly register to vote have shuttered. Voter registration drives are not able to access fairs, schools, other places where registration typically happens. And we could see millions of Americans who typically register in the lead-up to the election being shut out of the process unless we make registration options available to them — expanding online registration, making sure that registration’s available to people who don’t have driver’s licenses, making sure people who don’t have internet access can register as well.
And finally, for all of this we’re going to need to see a massive investment in public education, especially to counter what we expect to be a huge surge in disinformation this year. This is a huge jump, something that can’t be accomplished unless we invest significant resources now into our state and local elections systems.
WALDMAN: Thank you so much, Wendy. That’s a big order to do in such a short period of time.
Larry Norden, why don’t you tell us how this is playing out in Congress? Because it’s really right now, given what Wendy has described as the challenge facing the country on this, only the federal government has the ability, in effect, to spend, to print money, to do this kind of expenditure. We’ve seen that in the several stimulus bills that have come out, three or three and a half, as they say. States and localities don’t have funds. And they have balanced budget requirements, and they have crushing other needs. Why are we looking especially to Congress, and what is happening in Congress, and what should folks know about?
NORDEN: Right. Thanks, Michael. You’re exactly right when you talk about the strains that state and local governments are facing right now. In fact, unfortunately, what we’ve seen if anything around elections is that they’ve started to cut back on the funding that they’re giving to elections. And as you said, states and localities face balanced budget requirements. It’s really only Congress that has the resources that are needed to do the things that Wendy described. And what we found through a careful analysis is that Congress really needs to make available at least $4 billion for the states and localities to be able to adopt the items that Wendy mentioned.
In slightly good news, you mentioned three other stimulus packages. In March when it looked like elections were going to get zero, we worked with many other allies on this, we saw Congress provide $400 million to states to start making some of the adjustments that Wendy described. But as I said, that’s really a fraction of what’s needed. And in fact, we just put out an analysis last week with some other groups — R Street, the Alliance for Securing Democracy — that looked at five states in depth for interviews with election officials in terms of what they needed to do. Those states were Georgia, Michigan, Missouri, Ohio, and Pennsylvania. And what we found is that the $400 million that Congress provided wouldn’t even cover what those five states need this year to make sure that they can run fair and safe elections.
Unfortunately, time is running out. Wendy mentioned a few things that really need to happen within the next month to six weeks if they’re going to have an impact on the election. Online voter registration is an example. A lot of states have online voter registration, but we’re going to see a massive increase in the use of online voter registration for the reasons that Wendy discussed. And if we want to increase capacity for those systems, if we want to make sure they’re secure — remember, just a couple of months ago, the big topic in elections was are we going to see cyberattacks against our systems. Suddenly, the online voter-registration system becomes much more important to secure. That really has to happen. That work needs to start happening within the next month. If jurisdictions want to buy high-speed scanners to count all these new ballots that may be coming through the mail, that needs to happen within the next month or so. And of course, if we’re going to be conducting elections much more by mail, we’re going to need to print envelopes, print ballots, and the vendors are telling us that that needs to happen really by mid-June for jurisdictions around the country.
So we don’t need to necessarily see the money out the door from Congress, but if election officials are going to start making these orders they need to know that the money is coming. So we really think that in terms of the battle in Congress, we’ve got about a month to make this happen, or election jurisdictions might just not do the things that they need to do to make sure that we can run a fair and credible election this fall.
Four billion dollars may sound like a lot of money, and of course it is, and in normal times I would say there would be no chance that Congress would possibly provide that much money. But of course, this is not normal times. There have already been three stimulus packages that add up to about $3 trillion. Pelosi has recently said she wants another trillion dollars in the next package. So $4 billion is about one-one-thousandth of that amount of money. It’s a drop in the bucket. And we certainly believe if you want to have a democracy that works, if you want to have participation, if you want to have trust at the end of the day in that election, we’ve got to make sure that we get that money from Congress really this month, in May.
WALDMAN: Thanks so much, Larry.
And of course, the purpose of getting funds of this kind or persuading Congress to appropriate these funds is to enable states to do what they need to do. And as we all know, 50 states run 50 state elections, really many more than that — counties run local and county elections. It’s an extraordinary challenge in a system as fractured as ours to make the kinds of changes that need to happen, but our attention is going to have to pivot very hard to the states. And, Myrna, could you tell us, what do states need to do to get ready for this? We were expecting in 2020 a record-high turnout and the system was barely ready for that as it started. But what do states need to do and what are they doing to get ready?
PÉREZ: There are a lot of things that states need to do. And the way that I think advocates and folks who want to effectuate change need to look at it is in terms of our various different pipelines for our elections.
First, we have registration. So we do have a problem where our election system is going to be a closed loop unless we bring in those who are eligible but unregistered into the system. And as has been noted before, we’re going to have a problem with that when we have government offices shuttered so that people can’t go in and register when they’re doing that, and we can’t do voter-registration drives out in the community because of social-distancing orders. So one of the things that needs to happen is we need to figure out how we’re going to get people who are eligible but unregistered in the system. Certainly, online registration is part of that, but we also need to make sure that we are doing the public education and changing the way we register voters in such a way that will bring more people in. So that’s one particular bucket.
The next thing that folks need to do — that states need to do — is make sure that our rules and our procedures are such that everybody can participate. If you don’t have a photo ID right now, you’re not going to be able to get one, right, not as long as government agencies are shuttered. And therefore, making participation contingent on either having an ID to request an absentee ballot or to vote in person is going to be really falling on parts of our communities that are traditionally disenfranchised.
Then we need to make sure that our election rules are clean. If we’re going to be using vote-by-mail systems, we need to make sure that people can trust the addresses that they’re sending mailed ballots to. And that means making sure that there’s lots of touches with voters, lots of connections with voters, that we’re constantly updating our voter-registration lists so that people have accurate addresses in order to send our mail ballots.
And then we need to make sure that our polling places are done in a safe way. The reality is that not everyone is going to be able to vote by mail. In part some of it is going to be a technological limitation because there are going to be folks who can’t get their applications processed on time or folks who are unfamiliar with the system, so don’t understand that they need to request it in advance. And polling places are going to be important fail-safes when inevitable glitches happen.
But we can’t forget that there are parts of our community that just do not trust the mail. They already get really bad mail service. And these areas can be as diverse as really dense urban areas or really rural areas. There’s a lot of really good evidence about how Native American communities have really terrible access to vote by mail. And we have to make sure that we are not baking into our electoral process a system failure already. People already get bad mail service and bad government services, and then we don’t want to cut off the very avenues that they have to change that by building our voting process on top of a system that is already not serving people.
And then, finally, we need to make sure that our states and localities are thinking about where the gaps in the system are. Who is getting left out? How are we doing going the extra mile to make sure that people are being reached on Election Day? Because we are going to have a problem of folks not being able to participate and vote in a time where we really do need the voices of all members of our community. We’re in the middle of a crisis and we need the expertise and experience of all of us to be able to set the direction.
So there’s a lot that states can do. Depending on the state, some of these changes may need to happen from the executive or the legislature or local election administrators. But all hope is not lost. There’s something we can do if all 600 people on this call put our shoulder into it and decide that we’re going to make sure that we have an inclusive and safe and fair election in 2020.
WALDMAN: Thanks so much. And we’re going to get into more detail, because folks do want to know what’s going on in states and how the decisions are being made.
But a number of the questions, Myrna, that you raised about vote by mail — I want to go back to Wendy Weiser, because this whole issue of what needs to be done in this election has gotten sort of telescoped into the shorthand of this is all about vote by mail. It’s broader than that, but it’s a pretty significant thing.
Now, a large part of the country, of course, already votes by mail, and without any untoward effect. But why does this move to universal access to vote by mail matter? And is there a partisan impact, as some have worried? And how do we make sure that it works out well, since it would be a big change for a number of places?
WEISER: Well, thank you, Michael.
And there has been some unfortunate politicization or confusion around vote by mail. And it’s important for people to know that this is already deeply embedded in the American electoral system. A quarter of Americans, more than 31 million Americans, voted by mail in the 2018 election. In 2016 the numbers were similar. This is something that is a secure and well-established form of election all across the country, except some places use it very widely and in other places only a small portion of voters use absentee or mail ballots in the typical election year. And so we’re going to have to see significant changes.
To the extent that people have raised questions about is this going to have a partisan impact, the research and evidence is clear that moving to significant mail voting has no overall partisan impact on the elections. There are five states that actually now conduct their elections principally using mail ballots, and there’s been a lot of data over time, and that has not had a partisan impact on any of the races, researchers have shown.
To the extent that in the recent Wisconsin election there were some Democrats who were using vote by mail more than Republicans, that is not an evidence of any partisan impact of vote by mail. That was just how the electorate voted in that particular race.
And it’s important to know that while you might have heard some discussion of partisan opposition to vote by mail, that is not the case in most of the country. Election officials, political leaders, Republicans and Democrats across the country have embraced this move to vote by mail as the practical and necessary move to maintain the health and safety of the population and the general public. We’ve had Republican governors and election officials, the majority of whom across the country have been speaking out very forcefully about the need to make these changes. And the real risk isn’t whether or not there’s going to be a partisan impact but whether or not we’re going to have fair rules to make sure every American can access mail ballots and that they’re counted fairly.
And the devil is often in the details, but these rules really matter. A recent Florida study, for example, found that mail ballots cast by African American and Latino voters were twice as likely to be rejected when counted as those cast by white voters. In today’s Washington Post, we can read that 30,000 of the ballots that were cast in the last Wisconsin election actually wouldn’t have been counted if a court hadn’t intervened to allow ballots that were submitted before Election Day but didn’t arrive to election officials until after Election Day because of the slow mail to count. So there’s a whole range of rules like this that we’re going to have to scrutinize between now and Election Day to make sure that every American can have a reasonable access to mail voting.
WALDMAN: Thank you. And you know, again, you’re right that for those of us at the Brennan Center, those of us who’ve been working on voting rights, a big wholesale shift to vote by mail was not exactly the secret wish list that people had. It just seems at this moment that there’s not much of a choice if we want people to be able to vote and be safe in 2020.
Let’s turn quickly to the realpolitik in Washington and in states of how this can happen. Larry, Congress has, as we say, already appropriated $400 million. And in the next few weeks, there’s going to be a pretty intense push, debate, fight over another stimulus bill, with all the moving parts. What could happen, and who are the key players that folks should know about? How could this play out?
NORDEN: Right. Well, the Democratic leadership has already made clear that this is a priority for them. So both Speaker Pelosi and Leader Schumer have said they want to see funding in the next stimulus package that goes to states and localities for elections. In a previous proposal, Speaker Pelosi had a figure of around $4 billion to the states. And I wouldn’t be surprised if we see a similar number come out in the new proposal. In general, I think the Democrats have been pushing more for a new stimulus package and Republicans in Congress have been saying let’s wait and see.
You know, as time goes on and the need just generally around the country for additional funding from Congress becomes more apparent, that may be a difficult line to hold. So I do expect that we’re going to start in the next few weeks to see real negotiations over the next stimulus package. And then the question really is, is election funding in it or not? And from what I described you might say, well, the Democrats are going to be the ones that are going to be pushing for funding and Republicans will be saying no. And that’s kind of how it played out last time when we had the $400 million.
But I think the dynamic is probably a little bit more complicated than that. At the end of the day, the Democrats and the Republicans need to come up with an agreement. That’s the only way that anything will pass through Congress, obviously. And so just as much as it’s important to put pressure on Republicans to accept that there is additional funding that’s needed, I think there needs to be pressure on the Democrats to make sure that when they get to the negotiating table, and there are many, many obviously important needs around the country, that election funding doesn’t fall off the table.
When these negotiations happen, obviously it’s leadership. So Pelosi and Schumer are very important. McConnell in particular and McCarthy are important. And then key figures on the Appropriations Committees, like Senator Shelby from Alabama, Senator Blunt from Missouri, are going to be critical. And I do think, you know, one of the important things — Wendy mentioned this a bit — to remember is that while there may be a partisan fight in Congress, there’s really bipartisan support on the ground for this. So there’s huge bipartisan support among election officials for this. There’s a letter that’s out with over a hundred election officials of both parties saying that they need more funding for this. I mentioned this report that we put out last week where we had a media briefing; the majority of the election officials that were on that call were Republicans. And we’re starting to get the business community, faith leaders, others more involved in pushing for this. So I think more of that bipartisan push to make clear that this is something that everybody wants is going to be important.
WALDMAN: And, Larry, one of the questions we’re getting from folks who are listening is, where does the money go? Who in the federal government distributes it, and how many strings are attached? And how do we know states are going to do what we hope they will?
NORDEN: Right. So those are all good questions.
In all likelihood — and the last $400 million went through the Election Assistance Commission, and that goes to the chief election officer — that money [will go] to the chief election officer in each state. I think there has been a push, particularly by local election officials, that there should be some kind of a requirement that more money goes to the locals. Michael mentioned there are 50 states running 50 elections, but in fact, and this became clear in the report that we issued on the five states, most of the work and the expense is happening at the local level, at the county level, at the town level. Those are the election officials who have to spend money on things like mailing out the ballots, and making sure that there are enough poll workers, and that there’s enough protective equipment for those poll workers, and that the polling places are sanitized. So that would be a useful stream.
There’s going to be fights in Congress over whether or not there should be any additional strings to the money. I think our belief is if we can get the money out, that’s the most important part of this. It would be nice to have certain requirements — in my personal opinion — to have certain requirements that go with that money to make sure that it’s spent correctly. But the truth of the matter is, having spent all this time talking to election officials in those five states that I mentioned, it’s clear to me they want to do the right thing for both their election workers and for their voters to make sure that they can participate. And again, while it would be really nice to have some minimum requirements — I would be in favor of that — if we get them the money, most of them are going to do the right thing to making sure that there can be participation.
WALDMAN: Well, that really does again turn it back to the states, in brass-tacks terms. What can the folks on this call do to encourage people in states — officials in states, those with power in states — to do what they need to do? You know, one of the things the Brennan Center has done, we have a tremendously useful and frequently updated resource page on our website that we will circulate if you don’t have the ability to see it, with all the materials we’ve been developing and producing. But one of them is really a roadmap of what states have what rules already, and a lot of states already have really good rules. I mean, Wisconsin had vote by mail; it just — in a lot of ways, the system just buckled under the weight of going from 250,000 or so people who use it typically to a million and a half in a week. What can governors do, what can secretaries of state do, what requires legislation? What are the lever points for people in states?
PÉREZ: I would encourage everyone to look at the resource page that we have. I believe it’s going to be circulated later, and it shows what your state currently has that you can lean on. One of the nice things about this crisis is that there are lessons from not only other states, but opportunities within states to borrow from existing practices and use them and leverage them in bigger and bolder ways to bring more people in.
So, for example, if you are a state that already had an online registration system, you could also be a state that doesn’t require a driver’s license or social security number in order to be able to register to vote. We saw the state of North Carolina expand who was allowed to use their online registration system so that people aren’t getting double-whammied because they don’t have an ID because the government offices are shuttered, and then therefore they can’t access the online registration tool.
We can also see in some places that still have legislatures that are operating, and there are a handful of them, people on this call and other advocates can push for more resources internally and to make sure that the policies that would bring more people into the electorate are able to be used. But if you don’t have a legislative session that’s open you can push for an emergency legislative session, and there are a lot of things that can be done just within the discretion of counties, and one of the things that we’re doing is trying to work really hard with counties to try and look at what their existing resources are and how to expand them to bring more people in.
So, for example, you know, a county could decide to up its public education to let folks know what the deadlines were for mailing in an absentee ballot, what the sort of rules and procedures are regarding who can vote by mail. They can expand the number of polling places. They can make determinations to add more polling places so that there are fewer people that have to congregate.
So I’d encourage everyone to look at that chart, figure out where your state falls short, and then take a look at what you can do in your state because there’s a lot that can still be done. And one thing to remember is that this is not an on/off switch. It’s not like we either do it all or we do nothing.
Every intervention that we do brings more people into the system, and every reform that we’re able to make is going to be meaningful for somebody. So we can’t look at the problem before us and decide that it’s too big to do anything. We instead need to look and see what we can get done and get them done quickly and then move on to the next problem.
WALDMAN: And I have a question for all three of my colleagues. Is there a specific state or a specific example of where you think a state has [done] something that we want them [all] to do, that they need to do, or something that has happened and has moved well?
Myrna, why don’t I start with you?
PÉREZ: I think we’re in positions where we see some states doing some things but they’re not going all the way, or some officials. So, you know, I’m very grateful for the states that have decided to interpret their disability or their health or their sick requirements in order to have the excuse for an absentee ballot, that they’re expanding them to include people that are worried about the coronavirus.
I think using their existing laws and interpreting them in a way that effectively turns them into no-excuse absentee is a good procedure. But then we also see a state like Texas, which has limited access to vote by mail, that is fighting tooth and nail to keep a very, very narrow, extraordinarily stingy interpretation of those things.
So I think the electoral process needs to be looked at as an ecosystem and there are a bunch of different interventions that need to be done. And even if your state is good, for example, on letting people vote by mail, you probably need to do more to make sure that there’s enough polling places for the communities that can’t vote by mail. No one is in the clear. No one has a perfect model. There’s no state that I know of that we can say, yes, I feel comfortable that every eligible American will be able to vote. So there’s something to do for all of us still.
WALDMAN: Well, and to give an example of the kind of thing that has to happen, so six states right now don’t have, legally, what we would consider vote by mail or no-excuse absentee balloting. In New York State, where the Brennan Center is located, you need a health excuse. Well, the governor has done an executive order saying that being told by the health authorities to stay home is a health excuse. In Texas, the state officials have said no, it is not, and there is now a lawsuit that has been filed to challenge that.
While we and other voting rights groups and citizens are engaged in what’s going to have to be this kind of hand-to-hand legal and public policy combat in the states, the real big fight over the next few weeks is the Congress, and a number of the questions that folks have sent in, and we have over a hundred questions and we will do our best to get back to people — if we are unable to answer them now we’ll send you emails or put together some answers that everyone can see — a lot of them go around the debate over vote by mail. You know, first, is there fraud? And what about the charge that there is an unusual susceptibility to fraud? And, conversely, as a federal question, does a move to vote by mail risk disenfranchising people who aren’t used to using it or who have poor mail service and things like that?
So Wendy and Larry, can you talk through how this public debate with the president — with his very loud megaphone, saying, oh, no, this is going to lead to cheating — even as his supporters encourage their voters to vote by mail, how do you see the debate over this playing out?
WEISER: I’ll give it a start and then pass the baton to Larry.
It is, you know, certainly distressing to hear the president of the United States disparage the U.S. electoral system in such sweeping terms and to campaign against not only one of the main ways in which we have always voted, but against the main way we’re going to need to move the election system in order to maintain public health.
And, you know, at first, as Michael noted, he said that the reason he was complaining about it is that it might increase turnout and cause people to vote, and that might not be good for him. He has now shifted his talking points, and he and a couple — it’s still a minority — of folks have been very vocal, saying vote by mail is not secure. People cheat. There’s going to be a lot of fraud.
We’ve looked into this. There have been a lot of studies. Vote by mail is very secure. And while there might be slightly more opportunities for misconduct than in polling-place voting, it is so incredibly rare that, like polling-place voting, an American is more likely to be struck by lightning than to commit mail voting fraud. This is just not a significant problem.
And one of the reasons is not only that we’ve had this in place for a long time, but over time states have developed multiple tools to ensure the security and election integrity of mail voting systems. And to just throw out some examples, the secrecy envelope, the mail-ballot envelope, where voters put very personal information, is matched against the voter rolls or a signature — that’s one tool that’s in place in every state. Bar codes, and even intelligent bar codes, where people can follow their ballot and see where it is along the process, is another tool that not only lets election officials remove a ballot if somebody says I didn’t receive it and it comes in anyways, but also allows voters to ensure that their ballot gets there. There are secure drop boxes and drop-off locations. There’s penalties. There’s audits. There’s a range of processes in place, that mean that this is a very secure form of elections.
And a lot of election officials have been pointing out that, hey, you know, one of our actual biggest security concern heading into this election — and that’s still there — is the threat of foreign interference in our election and cybersecurity threats. And one of the critical weaknesses that needed to be addressed is that in some states, the voters were going to be voting on electronic voting machines that didn’t have a paper trail which could be audited and checked. That was a real security threat. You know, mail voting is paper and it can be checked, and it sort of adds security against that. So fraud not a really serious risk.
But what is a risk is driving up fears of the security of the election might cause voters to stay away. And there’s some evidence that at least some voters in Wisconsin stayed away from mail voting because of what the president said, anecdotally. There’s evidence that this could be used to put in place voter-disenfranchisement measures. This is generally the playbook. We’ve seen that most in polling-site voting, but now those same kinds of fights over voter access and unnecessary restrictions are going to move to mail voting. And, of course, it could be used to tee up arguments against the fairness and legitimacy of an election if somebody doesn’t like the outcome.
WALDMAN: And as you know, of course, and a lot of the folks on this call know, over many years the Brennan Center has really looked into this bogus charge of voter fraud, which is used to disenfranchise people, as the only legally cognizable basis for a lot of these laws. And our research over the years has showed over and over that you’re more likely to be struck by lightning than to commit in-person voter impersonation. And the rates are quite similar for vote by mail. You know, again, it’s not a theoretical thing.
Now, a large part of the country has experience with doing this. And there are always politicians and political operatives who are going to try to use tools to cheat. But in terms of voters themselves, it’s really, really quite rare. But what we all did see was a genuine threat in the last election to the integrity and security of the ballot, which came through cybersecurity challenges and concerns that we have about Russia, or not just Russia, China, Iran, North Korea, whoever, taking advantage of the holes in the system.
Larry Norden, you’ve been working on this with a coalition of technology experts and others over the years. What are the new risks? Does moving to vote by mail and early voting eliminate the risk from cyberattack, or does it sort of shift the location? Because the counting systems become even more important, right?
NORDEN: Yeah. So first of all, I did want to mention one thing, just as an add-on to Wendy’s point, that on-the-ground election officials don’t have the same concerns that the president has expressed, for the most part, around voter fraud. And in fact, we saw the Republican secretary of state in Kentucky, Mitch McConnell’s home state of course, just partner with the Democratic governor of that state to make sure that in their upcoming primary in June, that every voter has the opportunity to vote by mail if they want to. So I think that really brings home the fact that election officials of both parties are not worried in the same way that we hear kind of the partisan fighting in DC.
To your point, Michael, about cybersecurity and, as I said earlier in the conversation, the concern that a couple of months ago was on everybody’s minds in elections, that hasn’t gone away. The Russian government, others that might want to interfere in our elections didn’t decide because there’s a pandemic here that they’re no longer interested in interfering in our elections. I would say, if anything, in some ways the concern should be greater, for a couple of reasons. One is, the resources that we thought we had to secure our systems, now some of them have to be diverted to just making sure that we can hold an election this November. Some of the money that Commerce had previously appropriated for cybersecurity we know is getting redirected to making sure that we can just hold elections, period, this year. And in addition, as you hinted, there’s potentially a new attack surface that we have to be concerned about.
If we’re relying much more on online voter registration, if we’re relying on online applications for mail ballots, those become more important targets than we would have thought of them just a few months ago. If the majority of the country is voting by mail, then that online request form for mail ballots, then online voter registration become really critical. And over the next few months we’re going to have to make sure that, with everything else that we’re doing, we’re paying more attention to securing those online systems. That we’re doing things like penetration testing and auditing of those systems, and that when we count the ballots, the paper ballots that Wendy mentioned, we’re doing postelection audits afterwards to make sure that we can trust the electronic tallies.
And I suppose the thing that concerns me the most about cybersecurity right now is just that where a few months ago it was topics number one, two, and three if you went to an election official conference, it’s fallen off the radar a little bit. And we’re just going to have to get the focus back on that over the summer.
WALDMAN: Myrna, you had a point you wanted to quickly make?
PÉREZ: I just wanted to say that voters across the country are frustrated, I think, that politicians are not figuring out a commonsense way forward. When we’re hearing things like there shouldn’t be vote by mail in the middle of a pandemic, that feels very out of touch with the reality of people’s lives — you know, their schools are closed, they can’t go out shopping. I mean, this coronavirus has disrupted all aspects of American living. And our elections are also going to have to change, just like our lives have to change. And so I think people are expecting politicians to put aside some of their differences in figuring out a way forward. And one of those ways forward has to be vote by mail, this system. I think people are convinced that right now that is part of the solution to how we’re going to get through this election safely.
WALDMAN: That really gets to what I think is a question that a number of people have had, which is, given everything that’s going on, and all the crushing needs, and all the human needs, and the health-care needs, how can we get the word to Congress that this is critical? And how can we get people focused on this? I do agree that people want to be able to vote. And they get mad when politicians don’t let them. And we saw that potentially in Wisconsin, in the public reaction to some of the things that went on there. But as we’re looking toward the next few weeks of a critical push amid the din of all this, how do we get Congress to do what it needs to do?
Wendy and Larry?
WEISER: Well, I’ll just start, but I think that everybody who’s participating on this call has the networks and their own ability to reach out to their members of Congress and make sure that they understand how much you think this is important that they get money to ensure a safe and healthy election this year. The results if they don’t give the money are going to be disastrous across the country. We’re going to see not just 40 Wisconsins, it’ll be much worse than what we saw in Wisconsin because turnout is going to be twice as large. The system buckled under half the turnout that it was going to see in November in Wisconsin. And we’re not going to be able to be prepared. That’s going to lead to huge not just public health threats, but threats to the legitimacy and fairness of the election. And that’s really damaging to our democracy and to the changes we need to see happen. So everybody should be making that a priority through all your networks, to communicate that to your members of Congress through all of those networks.
WALDMAN: And so many of you have good relationships with the members of Congress nationally or where you’re from. They need to hear from you. They need to hear from all of us. There’s a wide coalition. We’re certainly working with many of them under the auspices of the Leadership Conference on Civil and Human Rights in this fight in Washington, and so many others. But they need to hear from you as well. And one of the questioners did properly chide me for saying we could have 50 Wisconsins. And I should note, we could have 51 Wisconsins, because people in Washington, DC, also need to be able to vote, not be disenfranchised either by the pandemic or by the moderator of this conversation.
Larry, what do you have to add?
NORDEN: I was just going to emphasize what Wendy said, you know, one of the reactions we got from members of Congress last time around, when we got the $400 million, is that they weren’t hearing from either election officials or the public generally that this was a high priority for them. I think in the case of the election officials it was because they were absolutely drowning. (Laughs.) You know, that was around the time when everybody suddenly realized they were going to have to potentially cancel their primaries and they were kind of struggling for a way to figure out how to make sure that they could have elections.
But it matters for members of Congress to hear from the public that this matters to them. And I said this before, but you know, often the dynamic when you’re talking about voting and Congress is people think, oh, the Democrats are pushing for some reform, Republicans are against it. Both sides matter in this negotiation. And even people that say that they’re with you, it’s important that they hear from you because, at the end of the day, this is going to be a negotiation and it’s going to be about what each side is willing to give up. And it’s very important, even though we’re hearing the right things from people like Schumer and Pelosi, that when push comes to shove they don’t let go of that and they make sure it’s in whatever final deal there is.
WALDMAN: And one question that a number of people have asked, intriguingly, is about the post office. We know that there’s funding crises at the post office, and the Postal Service would play a pretty important role in a number of these scenarios. Where does that play out?
PÉREZ: So I think the crisis that is facing the post office is yet another reason why we need to make sure that we protect in-person voting options. There are already some people that are not being served well by the post office. If service gets even more disrupted or uneven, those voters are going to be more impacted. And given the kinds of threats that the post office is seeing, we need to not be complacent about making sure that our election administrators are providing sufficient in-person polling place options.
In a time of crisis, voters need more options, not fewer. So we want to make sure we aren’t narrowing the options by saying only vote by mail or only X or only Y. Americans lead diverse and complex lives, and if we are going to meet all of their needs we need to have as many options as possible. That also must include safe and sanitary in-person polling place options.
WALDMAN: And a lot of it will depend on the course of the pandemic. If there is a second wave in the late fall, as we fear may be the case, then vote by mail will become a lot more important. And if it goes away miraculously, as the president has previously suggested, then that makes it easier to focus on some of the other things.
Wendy, you had something you wanted to add?
WEISER: I just wanted to say by all means you should be also supporting the post office and telling your member of Congress that we need to have a post office, not only for voting but for the myriad other ways in which we need it for our lives. I mean, that’s just nuts to let the post office go bankrupt. I don’t think it makes a huge amount of sense to focus specifically on voting when talking about the post office, given the president’s orientation towards voting right now.
WALDMAN: And I think that we should prepare to wrap up. We will do our best to get back to the dozens of folks who have submitted questions that we haven’t had time to get to, which is very encouraging that there’s so much interest. It’s plainly the case that this is a great battle for our democracy that’s taking place right now, and that in a weird way it’s less partisan than so many of the other fights. The further away you get from the cable TV studio, the less partisan it is. But breaking through the gridlock in Washington and breaking through the extraordinary other challenges Congress is facing is going to be really hard, and we’re going to need all of you. We’re going to need your help. We’re going to need outreach from business. We’re going to need it from election officials. We’re going to need it from faith leaders. We’re going to need it in media attention and in the broad political community, who are so important to those who run for office and can make sure this is a top priority.
We have a few weeks. States will have to scramble if Congress doesn’t appropriate the money. But the key right now is to get Congress to do its part.
Please do take a look at the Brennan Center’s website, and we will share with all of you by email the materials we’ve been discussing. And if there are questions we can answer, specific state challenges, state strategies, we’re really happy to do it.
I want to again thank my colleagues at the Brennan Center, thank our colleagues at the John Brademas Center. I think John Brademas, the late congressman from Indiana and former president of NYU, would be both very interested in this topic and pleased with the focus that we’re showing on this. I want to thank my colleagues Wendy Weiser and Larry Norden and Myrna Pérez, and those at the Brennan Center — Jeanne Park, Mellen O’Keefe, Jeanine Chirlin, and Morgan Goode — who helped put on this event, and others as well.
And thank you all for being engaged, for being involved. Let’s keep up the pressure. This next month is going to really matter a lot as to whether we’re going to have an election in November that is free and fair and secure and safe, and an election that plainly represents the voice of the people and represents a sound and a legitimate basis for government going forward. So thank you to my colleagues and thank you to all of you. And onward. Thanks a lot.
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