In the spring, the National Constitution Center hosted a series of online constitutional classes where students, teachers, and parents joined in constitutional discussions with scholars from the National Constitution Center and guest speakers. As we gear up for more classes this coming school year, we’re sharing one of our favorite lectures from the spring on today’s episode.
National Constitution Center President and CEO Jeffrey Rosen was joined by Emily Bazelon—a lawyer, law professor, journalist, and podcast host who is staff writer at The New York Times Magazine and the Truman Capote Fellow at Yale Law School. Emily and Jeff answered audience questions about coronavirus’ potential impacts on the upcoming election—including how it impacted primaries in places like Wisconsin and what challenges it might pose for the general election in November.
Our schedule of constitutional classes for the 2020-2021 school year will be available soon at https://constitutioncenter.org/interactive-constitution/online-civic-learning-opportunities. In the meantime, check out all of our online educational resources at In the spring, the National Constitution Center hosted a series of online constitutional classes where students, teachers, and parents joined in constitutional discussions with scholars from the National Constitution Center and guest speakers. As we gear up for more classes this coming school year, we’re sharing one of our favorite lectures from the spring on today’s episode. National Constitution Center President and CEO Jeffrey Rosen was joined by Emily Bazelon—a lawyer, law professor, journalist, and podcast host who is staff writer at The New York Times Magazine and the Truman Capote Fellow at Yale Law School. Emily and Jeff answered audience questions about coronavirus’ potential impacts on the upcoming election—including how it impacted primaries in places like Wisconsin and what challenges it might pose for the general election in November. Our schedule of constitutional classes for the 2020-2021 school year will be available soon at: https://constitutioncenter.org/interactive-constitution/online-civic-learning-opportunities. In the meantime, check out all of our online educational resources at https://constitutioncenter.org/learn.
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PARTICIPANTS
Emily Bazelon is a staff writer at The New York Times Magazine and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She is a co-host of Slate’s weekly podcast “Political Gabfest.” She is the author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration and the host of the companion podcast Charged.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
This episode was engineered by the National Constitution Center's AV team and Jackie McDermott and produced by Jackie McDermott, Scott Bomboy, and Kerry Sautner.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. The podcast sharing live constitutional conversations hosted by the national constitution center. I'm Jackie McDermott, the show's producer.
In the spring. The national constitution center hosted a series of online constitutional classes. Students, teachers, and parents joined in constitutional discussions with scholars and educators from the national constitution center and guest speakers. As we get ready to start the classes back up this coming school year, we're sharing one of our favorite lectures from the spring on today's episode. National constitution center, president Jeffrey Rosen was joined by Emily Bazelon, a lawyer, law professor, journalist and podcast host.
They answered audience questions about coronavirus's impact on the upcoming election, including how it impacted primaries in places like Wisconsin and what challenges it might pose for the general election in November. Jeff asks Emily an audience question to get the conversation started.
Jeffrey Rosen: [00:01:03] Great, well Alan says a federal statute says the presidential election takes place on the first Tuesday after the first Monday in November. But doesn't the president have broad public safety powers in the event of a disaster to override such requirements. Emily, why don't you start?
Emily Bazelon: [00:01:20] So that is such a great question, I'm going to argue that the answer is no, Jeff may see it differently. So, just to back up a second, the federal law Alan's talking about was passed in 1845. It sets this day, and it would take both houses of Congress to change that law. The president could certainly try with some emergency powers to override that statute. There would be a huge legal fight over that.
And I am now going to look to an opinion of the Wisconsin Supreme court about their election law. Now, you know, federal election law is different from Wisconsin. This was a very unpopular decision in Wisconsin and let me explain the facts. The Wisconsin primary was scheduled for April 7th, the governor, Asked the legislature to send an absentee ballot to everyone.
This is like, you know, in the middle of the pandemic, the legislature said, no. He asked the legislature to postpone the in-person voting. The legislature said no. And then at the last minute he postponed the date of the election himself. There was a court challenge, the legislature, and the Republican party challenged this.
I should say that we're talking about a democratic governor Tony Evers and Wisconsin, and a Republican controlled legislature. And the Wisconsin Supreme court looked at the statute. The governor had broad public health emergency powers, but the Wisconsin Supreme court said, you know what? Those broad powers don't allow you to effectively overturn an otherwise valid statute.
Doesn't say anything in this law about how you can just wave a magic wand and get rid of all these other laws. So, that looks pretty persuasive to me, both as a matter of Wisconsin law and as a matter of the sort of principles of how these things should work, I should say there's a wrinkle here. Wisconsin also has a public health statute that gives its health commissioner the power to postpone or, cancel large gatherings, in the event of a public health emergency, the governor, didn't invoke that provision for kind of technical reasons.
and so that wasn't an issue. so anyway, in the context of the election where we're just talking about this sort of emergency executive power, the Wisconsin Supreme court really set a limit. That limit makes sense to me, but I wonder Jeff, whether you think I'm missing something and being, incomplete here.
Jeffrey Rosen: [00:03:44] No, that was such a wonderful answer, Emily. And thank you for explaining the Wisconsin Supreme court decision so well. I haven't read it yet and you've wet my appetite for it. All of our friends should as well. But what I took from your really informative answer was that in many of these cases, it will be a question of state law, on the state level.
And as Emily accurately said, the relavant federal statute is fixed. And if the president were going to try to pass it, it would provoke a similar tremendous court challenge. And I completely agree with her that it's even hard to see any precedents for courts deferring to a president's attempt to override the congressional statute, regulating elections on the grounds of a public health emergency.
Maybe the only other thing to throw in, which is familiar to all of us by this point in our conversations, is that the framework that the Supreme court uses in evaluating the president's emergency powers comes from the Youngstown sheet and tube case. Remember friends, those three categories. When the president is acting according to a delegated power from Congress, when Congress has given them the power to do something, he acts at the zenith or height of his powers.
When he's acting in the face of explicit congressional disapproval, his power is at its lowest point or its nadir. And when Congress is vague, he's acting, what's called a zone of Twilight. Ooh, horror movie. And then it's not clear what the answer is. Here, obviously he'd be acting in the face of explicit congressional disapproval and his power would be at its naider.
You'd have to have unbelievably strong reasons for doing it. No interest on the other side. Very, very hard to imagine the court buying that and great answers for Emily, about how complicated it's going to be state by state on the ground.
Emily Bazelon: [00:05:27] Can I just add one thing about this? Jared Kushner, one of the president's advisors and son-in-law was asked about the date of the election the other day.
And he said, Oh, I can't commit. this is not within Jared Kushner's power. He doesn't get to decide. And I sort of assumed from his answer that he didn't know about this law. And I had never really thought about this before it could be wrong, but I, there was a lot of concern that he was putting this up in the air, but it's, it's not up in the air.
Kerry Sautner: [00:05:54] I have one from David Olsen. If you'd like me to read it. are there any federal court or constitutional remedies when different States have widely different access laws, then they say it's issuing absentee ballot applications to all or vote by mail. Are there any equal protection issues here?
Emily Bazelon: [00:06:13] These are a really good, hard questions.
Kerry Sautner: [00:06:16] He's one of our teachers on our advisory board, so he's a smart cookie.
Emily Bazelon: [00:06:20] So that is a great question that I really hope we don't see tested, but we could, you know, Congress, the way the constitution deals with election laws that Congress, Has this kind of fail safe, like backup power, but effectively States set the time place and manner of federal elections.
With this understanding that Congress could kind of step in and Congress has passed national access laws about elections in the last 20 years, we have, what's known as the motor voter law and also the help America vote act. Those are both from like the nineties and early two thousands and they were passed, mostly to increase access to the ballot.
So there is some federal law here, but the questions about, mail-in ballot access you're right, they do wildly differ between the States. We're now at a situation, I just wrote about this. So these details are in my head, there are 14 or 15 States in the country where you still have to make an excuse to request an absentee ballot.
You basically have to say either I'm going to be out of the state or I'm going to be sick. Then there are all the other States where you can just ask for an absentee ballot application and they'll send you one. You don't have to like explain yourself, but that doesn't. guarantee a smoothly processed election.
If we have a huge move to vote by mail with the threat of the pandemic. And the reason for that is there are a lot of States, like my state of Connecticut, the last election, 3% of people voted by mail. That's what the state's used to doing. If. 75% of people vote by mail. And that's actually what we saw in this Wisconsin primary.
They went from 3% to 74%. You can expect a lot of problems. The state for awhile, a little bit in Wisconsin, they ran out of envelopes. They just didn't have a big enough print order. Imagine a world in which all the States in September ask the people who produce. Bulk, you know, ballots and envelopes.
We need millions and millions, all of a sudden, like that's not going to work. That's the same kind of supply chain problem we've seen with, masks and other equipment for the pandemic. So that's the reason I feel in some ways it's not so much a legal gap as it is, is like a practical and logistical one.
but I think you also are going to see challenges to state laws that, That limit access. One issue is who pays to mail out absentee ballots. Are there ways in which to use, the federal constitution or state constitution equity arguments to make on those grounds? In general though. you know, there have been these kind of limited applications of equal protection law.
So we saw the Supreme court make an equal protection argument in Bush versus Gore for the way that Florida counted its ballots. But even in the moment, the Supreme court did that. It was this sort of like one ticket only decision, which really hasn't led to other case law about equal protection that might help you make an argument that well, this state is mailing absentee ballots and paying for it my state isn't, we just haven't really seen very much of that kind of federal remedy I think.
Jeffrey Rosen: [00:09:28] Wonderful. There are so many great questions and Emily is so well informed in all of this. Her reporting has been so superb and I'm just going to pose a few more to her cause I'm really eager for the answers as well.
Sandy asks in the Georgia primary coming up. They've designated selected mailboxes for mailing early vote, absentee ballots in one country that installed cameras. They can scream fraud if, for example, An elderly woman has her grandson mail her ballot in this Corona virus environment, is this legal?
Emily Bazelon: [00:09:58] Oh my God. These are great questions, Georgia is a great state to ask about. There's been a lot of controversy in the last several years about access to the ballot in Georgia. Having to do really like coming to a floor with the, governor's race between Stacey Abrams, who ran as a Democrat in 2018. She lost Brian Kemp.
he was the secretary of state in Georgia, which meant he was the chief election official. And now, another guy whose first name is out of my head, but his name is Raffensperger, Brad Raffensperger is the secretary of state in Georgia. And he has been talking a lot about fraud. He actually is one of the only election officials who set up a statewide absentee ballot, fraud task force.
And what some of the voting rights advocates connected with Stacey Abrams said about that was that looked to them like voter intimidation. If you're kind of warning people, if you don't sign your ballot or deliver it properly, we're going to investigate you. If you're worried. You're just uncertain about the legality of what you're doing, or maybe if you lived with people who are undocumented, if you just feel vulnerable that could discourage you from voting.
I think we may see legal challenges about that, and that relates to this idea of installing cameras. You know, fraud is always a justification that people give for suppressing the vote and reducing participation. Cause it sounds like a reasonable problem to worry about. And indeed it is. I mean, we do, we all want to prevent fraud in elections.
Like that's alarming to think that people could be stuffing. Bags with absentee ballots and changing election results. That is unusual, it is not unheard of when people talk about in-person voting fraud at the actual polling place that really like literally, almost never happens. I can't tell you the same thing about absentee ballot fraud.
in 2018, there was a congressional race in North Carolina in which the Republican candidate hired a political operative, who was accused of, and, and it seems like really did try to sway that election by collecting as many as 800 ballots and, filling them in to complete them, maybe throwing some of them away.
the Republican won by only 905 votes. So those 800 ballots loomed very large. And in fact, the bipartisan election commission in North Carolina canceled the election and made them do it over and a different person won in the end. So that is a real concern. The problem is, do we address it in a way that, reinforces trust in the results and encourages people to think this was a fair contest?
Or do we try to address it in a way that scares people and makes them think like the police are gonna come after them, if they don't fill out their ballot properly? The most encouraging thing I found out about this when I was reporting my story. which just ran in the times, was that in the States that have the most vote by mail.
They're like at 95%, there are five of these States. They have very clean track records. They have figured out how to do this safely, securely. They send you an envelope, it has a bar code on it. They can track it through the postal service. They know when you get it. You can return it through the mail. You can also put it in a secure Dropbox.
You can bring it back to an onsite polling place on election day. And I was talking to the secretary of state of Colorado, which is one of these universal vote by mail States. And she said, you know, we report every case of suspected fraud. And our rate in 2018 was .0027%. In other words, like a really tiny number of people were really even suspected of doing this.
so those are the kinds of factors to weigh in thinking about the legality of, whether you could install cameras, you know, what kind of justification would the state have to take that kind of remedy and could someone who cares about access to the ballot come in and say, wait a second. There's a small risk here, but what you're doing is discouraging people to vote to such a degree that that just shouldn't be allowed.
Jeffrey Rosen: [00:14:01] Thank you very much fascinating. And, friends, let's make sure to read Emily's story as well. So you can get even more of those great details. A bunch of our questions asked about the circumstances under which the Supreme court defers to the States. One of our questioners asks thinking about Bush v. Gore, when does SCOTUS defer to the States and when not.
Teddy asks, is it constitutional to deny voting rights because you ran out of an envelope, Mark Naden asks, why did the U.S Supreme court get involved with the Wisconsin election and what was their reason? And we also have a question that says, is it disenfranchisement not to allow someone to vote cause they haven't gotten a ballot. So let me just set up these questions in this way. The Wisconsin Supreme court, as I mentioned, Mark at the very beginning, invoked this principle called the Purcell principle, which says that courts ordinarily should not get involved in elections at the last minute to change the rules.
But it said that that's a ticket for that train only. And that it wasn't saying what it was going to do in future elections. The broader question of what standard the Supreme court uses to decide whether someone's equal rights to voting has been violated is really tricky as we learned in Bush V Gore.
So Emily, how does this work for summary? And then you can take it away from here. The court has a whole bunch of different voting rights violations. First there's the rights to an equally weighted vote. That's the malapportionment cases where some voting districts were drawn in ways that gave people in rural counties, much more power than urban voters.
And that led to the principle of one man, one vote. Then there's, it's the principle of equal access to the ballot you can't on the basis of race or other elicit factors. Prevent someone from voting, then there's the right to an equally meaningful vote. The right to elect represents those of your choice.
And that was the right in cases involving what are called racial gerrymandering, when voting districts are drawn to allow minorities a fair chance to elect the representatives of their choice. The Bush V Gore, right, was a kind of new right for every ballot to be treated precisely the same way as every other ballot.
And I always had trouble, Emily. Articulating exactly what that constitutional principle was. Maybe you can tell our friends how you understand it and how you think if at all that Bush V Gore right of ballots to be treated equally principle would apply to a question of whether a ballot that's not received in time gets counted, or whether someone who hasn't gotten their ballot in time to mail it and gets counted, or whether the constitution doesn't speak to those situations at all.
Emily Bazelon: [00:16:36] Yeah. I mean, I think the constitution could speak to those situations. I'm not particularly hopeful that the one ticket only decision in Bush versus Gore is going to help a whole lot in, in the kind of hypothetical scenario you're laying out where someone doesn't get their ballot in time. Part of the reason I'm not hopeful is the experience in Wisconsin.
So I mentioned earlier the Wisconsin Supreme court decision, and that was in the context of the legislature, challenging the governor's move to postpone the election. There was a separate federal challenge that was going on. And what happened in that case was. People in Wisconsin could see that there were a lot of people not getting their absentee ballots in time.
There were thousands of requests. There was a big backlog. The local election officials were saying, we can't get all of these ballots out in time. And so there was a federal lawsuit, basically arguing that the state couldn't properly conduct the selection and that people's right to vote were being violated.
And the federal district court listened to all this testimony, including from the local election officials saying we can't do this right in time. And what he did, he said, you know what? I can't step in for the governor and the legislature and postpone the election. But what I am going to do is give people six more days to return their ballot.
So he moved the deadline for mailing your ballot back in or returning it to a drop off box. He moved the deadline from April 7th to April 13th. And when I read that opinion, I thought like this is a really thoughtful kind of incremental, pretty small change to the election. This judge is making to protect the franchise and protect people's right to vote.
That case went up first to the appeals court, which affirmed the district court's decision. Then it went up to the United States Supreme court. So this is a separate track. We're in federal lawsuit land instead of state lawsuit land, and five to four ideological split. The conservatives on the Supreme court said, no.
They said that federal government had violated the Purcell principle that Jeff was talking about earlier. By interfering, making a change in an election too late in the process. And they reverted the deadline for returning absentee ballots from April 13th to April 7th. So there were a couple of problems with that.
There were people who had received their ballots with instructions from the state that said you have till April 13th, that wasn't true anymore, but they didn't necessarily know that. And so when I was talking to local election officials after the election, One of the things that for them was really troubling was that they were receiving ballots from drop off boxes at the local library all the way up to the, the 13th.
Cause people like hadn't kept track of the latest news. They were still coming. They thought their votes would be counted, but the Supreme court had invalidated all of those votes. And the Supreme court in its opinion, did not mention at all, any of these people who were waiting for their absentee ballots and did not received them.
So that all seemed quite troublingfrom the point of view of, this Supreme court, seeing our constitution as a vehicle for addressing the problems of absentee ballots, not being, sent out in time or not being returned in time. And I definitely worry about that. for November in terms of the kind of precedent that it sets.
Jeffrey Rosen: [00:20:01] Thank you for that. Thank you for noting all of those questions. And as you suggested as justice Ginsburg predicted, several of the ballots did arrive late and as it turned out, they weren't postmarked at all, just because of a weird way that the ballots were mailed. And some of the, some of the ones that were not postmarked, but received before April 13th, we're actually counted.
Emily Bazelon: [00:20:22] Yes your right it was this weird thing where the Supreme court didn't seem to understand that Wisconsin didn't have postmark in their statue and referred to a postmark. And then the election officials were like, okay, we'll use the postmark date. And that did allow some ballots to be counted almost sort of as an accident.
Jeffrey Rosen: [00:20:40] Clark asks, what is the Purcell principal? P U R C E L L. And it's basically the courts shouldn't intervene in elections in the last minute. And that was based in a case where the Supreme court thought that. Lower court should have more time to review a record before the Supreme court made a final judgment and change the rules.
Emily, just being as charitable as possible. You know, I have to be completely nonpartisan here and I have no opinions whatsoever.
Emily Bazelon: [00:21:07] No opinions.
Jeffrey Rosen: [00:21:09] I never have any, but if you were trying to make a. The strongest case for applying the Purcell principle to Wisconsin, what would it be?
Emily Bazelon: [00:21:16] Oh man. I mean, it would be that even a week before an election is too late for a federal court to make any kind of change at all to the election and.
You know what? I have an easier time being fair about it is the idea of last minute changes to an election. Like that is a problem. Uncertainty is a big problem for people. I don't actually think this federal judge extending the deadline for absentee ballots was a problem. When you think about that, you think like, well that just gives people a few more days.
How's that really going to hurt anyone, but, well, imagine a different scenario where. A federal judge closes some polling places and orders, others to open or changes the date of the election, which was the scenario we started out talking about. You could really see the doing that at the last minute would disenfranchise a lot of people.
And if we're looking ahead to November and we want to make sure we have a smooth, properly run election one, we can all trust in as Americans. It will be really important not to have those kinds of last minute changes.
Jeffrey Rosen: [00:22:17] Great. That was wonderful. Thank you for doing that. You gave more reasons than the Supreme court majority opinion.
So that was, we have a bunch of questions about technology and voting. Sharon Buoy asked, do you think hesitation to vote by mail or online is a generational matter of power is held by those with the most tenure, which are older folks, how says to federal and state balanced distinguished between an official us postmark versus a.
Private postage stamp, and might online voting solve that question. So talk about online voting that there is concern about its accuracy and the need to have a paper record, to avoid hacking, but are any States considering moving to online voting for the November election? What legal issues might that raise, if any, and what are other legal and constitutional issues involving online voting?
Emily Bazelon: [00:23:14] I haven't heard anyone talk about online voting for November. I think that it seems too hackable and too insecure. And at this moment where we're worried that our domestic fairness and also about foreign interference, which we can expect the idea of having online voting, which wouldn't have a paper record makes everybody.
Too nervous. And I think that's probably correct. it's certainly true that for young people voting digitally the would seem much more natural. and I would hope that eventually we would get there, but right now I'm just happy to hear that States have a means of registering to vote online. Cause not every state.
Has that I think if we could start there and really get that up and running and have the States have full faith, that it's, can't be hacked and that it's working the way they need it to, then we could start talking about online voting, the mail. Has some advantages you're right. That older people have used it more in the past.
One of the challenges that some young people have said to me is that they don't actually have stamps lying around, like that's not a thing. They don't mail letters. and so I think there are a couple of ways to take care of that. States can have drop-off boxes and sites like the library or on the day of the election, we should say, it's important to note that voting by mail, even in the States where 95% of people do it, there are still polling places. There are people who don't have stable mailing addresses who need to vote in person, and also people with certain disabilities, like blindness who need assistance.
So no state. Has closed all its polling places. And that's another thing you can do with your ballot is drop it off as opposed to putting it into a mailbox. another thing States can do is pay the postage. And the issue with that in the fall is going to be that the States, as you know, are, you know, really taking a huge financial hit from coronavirus and they do not have enough money to do all of the election preparation that.
we're, we're talking about that they need, so Congress has been told by the Brennan center for justice, this nonpartisan group that has done a lot of work, like they probably need about, $4 billion to do the elections right. That includes all the primaries that haven't been held yet, as well as the general election.
So far, Congress has only pledged 400 million. That's a big gap. you know, multiples, more money that's needed. And this is unfortunately turned into a really partisan battle where Democrats want to fund the election. And Republicans are resisting at least in Washington, talk to state officials in the States.
It's pretty bipartisan support for money for the election, but that's not the case in Washington. And so that's a big challenge going forward.
Jeffrey Rosen: [00:25:52] Fascinating. So several of our friends was asked more details about the situation on the ground. Noting only 15 States have drop-off sites and only 15 have Malin ballot options.
How do we get in gear by November? And give us a sense more broadly about how many are planning to. Get mail-in ballot options, we saw the California just mailed out ballots. Are those 15 States likely to increase. And how many States are planning to have mail-in options by November?
Emily Bazelon: [00:26:20] So there are some of the 15 States I named earlier. Where you have to have an excuse that have already said, we're going to lift that excuse in November. So the governor of New Hampshire who's Republican, he said, Pandemic is still a threat. Everybody gets a ballot mailed to them, or at least an application for a ballot. I should say same in my home state of Connecticut.
which has never done this before. And where you also have to have an excuse on the other hand in Texas, which is another other state where you have to have an excuse. The attorney general has gone to court to argue that if you're not sick, And you're asking for a mail ballot because you're afraid of the virus.
That's not a valid reason and he has even gone so far as to say that if you advise someone to go get a ballot because of fear of the pandemic, that you could face criminal sanctions. So that's sorta like the Georgia example we were talking about earlier, where you have, a move by a state official that really looks like it's trying to reduce.
Participation, going forward and that is still being litigated. That attorney general could well lose in the courts in Texas. But right now we just don't know the answer.
Jeffrey Rosen: [00:27:25] Are any additional States likely to adopt mail-in?
Emily Bazelon: [00:27:29] I don't think we're going to see more universal though by mail, but I think you're going to, well, I guess I will say this.
If the pandemic remains a threat, I think you're going to see more States do what I just mentioned from Connecticut and New York is sort of moving in this direction. Massachusetts. The legislature has talked about this and there's this kind of interesting, geography to this. So the States that have the most, the highest rates of vote by mail, like between 60 and 95% are all in the West.
It's like Utah, Colorado, Oregon, Washington, Hawaii. And then. California Montana. Arizona are pretty high up there. And then there are a bunch of States on the East coast then, and the Midwest that are the most restrictive. So I mentioned Texas, Connecticut, Massachusetts. These States, part of it, I think is like, it's just more old fashioned.
And in my reporting, someone mentioned to me that the Western States that started vote by mail earlier and have done the most with it also are the States that gave women the right to vote before the 19th amendment in 1919. Like they were early on to women's suffrage, which is really interesting.
I'm not sure what the correlation is. Maybe they're just like more innovative these places but I think you will see some of the east coast States move toward more vote by mail access. The question is going to be in States like Texas, that seemed to be really trying to reduce access. Like I said, whether there's political pressure on state officials to increase, vote by mail.
one part of this that I always. I think it's important to say is that voting by mail does not help Democrats. And it does not help Republicans. It's been shown so far across the country to have no partisan effect. It does a little bit increased turnout. You would kind of hope that everyone could get on board for that in an election in which people have a lot of reasons to fear for their health.
and one thing we saw in the Wisconsin primary were people standing in really long lines at the polls and then people got sick afterward and those infections got traced to that election day, according to the state health officials. So that should throw into very sharp relief. The idea that we do not want people to have to choose between their health and their right to vote. But there are States in which really we have not seen that kind of bipartisan agreement yet. That's striking about those infection rates.
Jeffrey Rosen: [00:29:53] Really interesting. Also to note that the Western States, which gave you women the right to go there, being most innovative here, our exhibits team for our 19th amendment exhibit, which we can't wait to open when the building reopens, found that some Western States adopted the right to vote to women. Cause they were trying to persuade people to immigrate to their States. They were seeking population so.
Emily Bazelon: [00:30:11] Totally, they were like, come, you can vote suffrage. It's such a cool part of the story. I love that part.
Jeffrey Rosen: [00:30:16] And it'd be a great incentive today as well. Talk about voter ID laws and the legal challenges surrounding them. In Pennsylvania, you have to have a driver's license or state ID to get a mail in ballot. Many young people have neither does that cause a dropoff in that age group and more broadly, we've seen a series of legal challenges around voter ID stemming from a five to four Supreme court decision, which said that in at least some circumstances, voter ID laws are permissible or consistent with the constitution. What, if any legal challenges might arise from those laws coming up?
Emily Bazelon: [00:30:50] Yeah. So the Supreme court did, allow for what's called restrictive voter ID and restrictive voter ID means you have to show your ID at the poll when you vote. And the state can make a list of the types of ID that they'll approve and it doesn't have to be a particularly long list, which is why the point about driver's licenses or other forms of, I think social security ID comes up in States like Pennsylvania and.
It is a barrier to voting. Sometimes for young people also tends to be, people without ID are more likely to be poor and more likely to be elderly. It's not a huge problem for turnout. So it's something that I think, Deservedly gets attention because it's a barrier that is designed. If anything, I think to prevent in person voting fraud.
And like I said earlier, that hardly ever happens. So one piece of data to explain why I keep saying that there was a big exhaustive search for, voter fraud in person after the 2016 action. I think more than a hundred million people voted in that election, four cases of in-person voter fraud, even suspected were found.
So. It's really not a problem. And that would be my argument for why we should not have voter ID. The impact of voter ID on participation has been lower than I think a lot of the opponents of voter ID fear. it turns out like a lot of people have to have some form of ID just to kind of do their life.
and so that has proved to be less of a barrier. That doesn't mean that we need to have it there, but that's sort of how that has played out. There are certain States in which the state Supreme court, based on the state constitution, disallowed voter ID. I'm pretty sure Missouri, for example, has that.
and so that's this sort of interesting wrinkle in our Federalist system that even when the United Supreme court says the federal constitution is not a barrier to a law like voter ID, a state can still say, well, our state constitution. As a broader conception of the right to vote then, the United States Supreme court is saying about the federal constitution.
And I would just know in this area that there is no right to vote in our constitution. Those words don't appear. There are lots of not lots. There are several amendments that addressed the right to vote. and there's the 14th amendment which provides for equal protection under the law, which has been really important in things like one person, one vote that like super key standard that Jeff started out with.
But to me, it seems like a real problem that we don't just enshrine the right to vote in the constitution. Cause I think some of the problems you all are raising in your questions would be more easily addressed. If we had that kind of just clear language in our constitution.
Jeffrey Rosen: [00:33:31] It's so true. The ambiguity about what the right to vote entails has led to the most contested questions in constitutional history, starting after the 15th amendment, when you had the formal right to vote, but it didn't prohibit poll taxes and literacy tests explicitly.
And that was used to disenfranchise people. And the question of exactly what the right to go to entitles you to have not traditionally been covered by the constitution. And now that it's beginning to, we're finding lots and lots of uncertainty, Nina asked a great question. It seems like mail-in voting would be helpful, regardless of COVID-19.
For example, the elderly, those working long hours may have difficulty voting in person. The constitution says States will decide how elections are carried out. However, voting is a matter of free speech it's political speech would citizens United support a SCOTUS decision that mail-in voting is free speech.And then incorporate that to the States.
Emily Bazelon: [00:34:23] That's such a nice idea. I like these creative uses of Citizens United, Citizens United says that money equals speech. It does not say that voting equals speech now, you and I might wish differently, but that's what that decision right now stands for. So I'm not sure that's going to be our vehicle for getting where you want to go.
the idea that mail in ballots, mail-in the voting by mail has lots of utility. Forget, the pandemic is one that the States that use it a lot feel very confident about. And so when I was calling around to the secretaries of state who are in charge of elections in places like Colorado and Washington and Utah, they basically are saying like, we know how to do this come.
Like, we'll advise you, we'll help you pull this off. We'll show you the way basically. And one sort of hopeful note about this is that. In those States when vote by mail passed, it was kind of controversial. It was sometimes a ballot measure that people voted for directly. In some cases, it happens through the legislature, but there was like partisan dissent about it.
people argued about whether it was a good idea. Once it's in place, people tend to settle down and decide that they like it, and use it a lot. So that is reassuring to me. I think sometimes with big systemic changes like this, people get nervous about things they haven't done before. I was on the radio last week, talking about these issues and someone called in and said voting by mail is only for like sick people.
Nobody else is ever going to want to do it. Well, it's just not true. Like even with our current patchwork of laws, we have about 25% of the country voting by mail. So the notion that the pandemic, which has so many terrible things about it, could be a vehicle for increasing access by getting people accustomed, to voting by mail and giving States a reason why they have to figure out how to ramp up the volume. That is one possible, silver lining in all of this.
Jeffrey Rosen: [00:36:18] Wonderful. Well, we will be digging into voting rights in America next week in our sessions on Wednesday and Thursday. And we'll be able to talk about the case law and text and history of the constitution. And Emily, you're just such a Marvel in helping us to sell all these complicated issues. And thank you so much for joining. And do you want to leave our friends with any thoughts about what legal questions they should be looking out for as the election approaches?
Emily Bazelon: [00:36:46] Yeah. So I would say a couple things. One is, they're already are lawsuits, both the Republican National Committee and the Democratic National Committee are bringing lawsuits around access to ballot and questions.
And you can. Watch them. so for example, Nevada and New Mexico, I might've mentioned the Republicans are trying to prevent mail-in balloting from happening. Democrats have sued in States like Michigan, because they are worried that the States don't have a uniform method for verifying people's signatures.
You can look out for signature verification as a potential hanging Chad problem for 2020. There could be a lot of big fights about that. It is true that a lot of States have no uniform standards have never done this. with large volumes before that's like a big deal. and the second thing I would say to look out for, this is like, I've been trying to say this as much as possible.
It is very possible that we will not know the results of the election on election night in November. And that will feel like maybe something went wrong. We're used to this, the TV coverage relies on the suspense of that night. If we have millions and tens of millions, more people well voting by mail than I've ever done it before.
It is very likely, I believe that some important swing States will not count all their votes on election night. And we should not assume that something has gone wrong. We should try to be really careful in how we absorb and digest the news coverage around all of this. And, what decisions we make about whether the election has been conducted fairly or not.
it's possible that there could be some real problem. I don't have a crystal ball, but the fact of a delay in itself does not mean that something, confidence shaking has happened. So we should spread the word about that. Like we should all be prepared to be a little patient about the results.
Jeffrey Rosen: [00:38:36] Thank you so much for that friends. Please join me in thanking. So enthusiastically Emily Bazelon for her wonderful insights and for her time, And we will look forward to seeing all of you next week. Have a great weekend, everybody. Thank you. Thank you. Emily.
Jackie McDermott: [00:38:56] This episode was engineered by the national constitution center's AV team and me Jackie McCarter. It was produced by me along with Scott Bomboy and Kerry Sautner. Our schedule of constitutional classes for the 2020 to 2021 school year will be released soon in the meantime, visit constitution center.org/learn. To check out more of our free online educational resources, including other constitutional classes like this one as always, please rate, review and subscribe to live at the national constitution center on Apple podcasts or wherever you listen and join us back here next week on behalf of the national constitution center i'm Jackie McDermott.
