Democracy Decoded: Season 4, Episode 7 Transcript
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Trevor Potter: The first thing to understand is it's unlikely that we will know with any certainty who has won the election on election night. Even when the announcer says, "The polls have now closed in whatever state," depending on the state and what their process is for opening votes, counting votes, reporting votes, it may be that it's a day, two days, three days before we have a somewhat reliable but still unofficial count.
Simone Leeper: I'm Simone Leeper, and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that could lead to a stronger, more transparent, accountable, and inclusive democracy. I work for a nonpartisan organization called Campaign Legal Center, which is dedicated to solving the wide range of challenges facing American democracy. CLC fights for every American's freedom to vote and meaningfully participate in the democratic process. This season, we're looking squarely at elections and the tried and tested systems that ensure our elections are safe, secure, and accurate.
In this episode, we're bringing you another up- to-the-minute interview to help you better understand the issues affecting this year's elections. With election day rapidly approaching, today we're looking back on the 2024 election cycle thus far and considering how we got to where we are. We're going to find out how this election is shaping up and what you as a voter should be watching for on Tuesday, November 5th and beyond. People say it every four years, "This election is the biggest one of our lifetimes." Clearly that can't be true every time, but it is safe to say that the 2024 election will go down as one of the most eventful ones in recent memory. Many aspects of this election have left voters feeling anxious and uncertain. Yet, we're also heading into this election with new laws and other countermeasures that will help to ensure that this election runs more smoothly than in 2020. It's all a lot to consider. With such an important discussion on the docket, it is fitting that I'm talking to one of the preeminent election law experts today, my colleague, Trevor Potter, the Founder and President of CLC. A Republican former Chairman of the Federal Election Commission, Trevor was general counsel to John McCain's 2000 and 2008 presidential campaigns and an advisor to the drafters of the McCain-Feingold Campaign Finance Law. Let's take a look back on this election season and what we're watching for in the coming days. Trevor, thank you so much for being here today.
Potter: Thanks, Simone. It's great to be with you.
Leeper: Now, this is the second presidential election that we've worked together on at CLC, and the first one in 2020, of course, was far from uneventful. But you've been involved in electoral politics in some shape or form for a long time even before that. How do you view this election year compared to those in the past?
Potter: You've probably heard the old curse, "May you live in interesting times," and these have been very interesting times. I was thinking about it, and you really have to go back more than 50 years to 1968, a year in which an incumbent president withdrew from the race unexpectedly then and unexpectedly now, but much later this year. So we've had President Biden deciding not to seek reelection, the change in the plans of the Democratic Party and the emergence of the Vice President as the candidate in only a short period of time and then introducing herself to the whole country at the convention. That in itself is in our lifetimes unprecedented in that form.
We've had major Supreme Court decisions that affect this election that have occurred this year of whether President Trump can be barred by states for running under the 14th Amendment, the argument being that that bans people who have engaged in insurrection and the question of whether January 6th qualified. The court dove in and essentially said, "Well, we're going to ignore that provision of the constitution. States can't exercise it and it's not clear anyone else can." And then the presidential immunity decision in June, which of course changed the schedule for the criminal trial prosecution of the former president for the January 6th events and the allegations that he had interfered with the transfer of power in 2020 and 2021. An assassination attempt, two assassination possibilities, for former President Trump in the middle of all this. And of course more recently, hurricanes that have impacted several states. Certainly early voting is impacted by that. So we've had problems in election years before. My first experience of that on a national level was the 2008 McCain presidential campaign. You may recall we had an economic meltdown in the middle of that election and Senator McCain announced he was suspending his campaign because the crisis was so severe he thought the country should rise above politics. We've had bumps before in the road, but this has been a pretty dramatic year so far.
Leeper: So stepping back from those specific things that you mentioned and looking at the election through a big picture lens, what are the major forces that are impacting voters and their opinions of the electoral process?
Potter: Maybe the best analogy here is to envision our election ship in really rough seas with enormous waves and white caps and high wind. We're dealing with all of those forces. We know that somewhere over there there's a safe harbor that if we can get into it the wind will be quiet, the water will be quiet, and we can actually get through this election. But it's a challenge trying to steer through it all. First of all, we have really significant polarization in this country that is geographic and ideological, that is greater than it used to be. Elections back in the '60s and '70s, both parties were essentially coalitions. You had liberal Republicans, conservative Democrats. You, as a result, had a center of Congress that overlapped. That has gone away in Congress because it's gone away in the populace. We now refer to red states and blue states. That is a relatively recent phenomenon.
So this geographic polarization, the ideological polarization has affected the way we think about elections. 45 out of the 50 states, certainly at least 40 out of the 50, are not really seeing much of a presidential campaign because we think we know how they're going to vote already. The campaign is focusing on only five or six states. That obviously raises the stakes and the volume of the battle in those states. It's not just presidential. It used to be that it was quite common to have a senator from each party representing a state so that the voters split with a Democratic senator, a Republican senator. That almost never happens now. The red states produce two Republicans, the blue states two Democrats. The lack of a middle ground here and within the parties a lack of a middle ground, that changes the nature of our politics. It means that the voters themselves feel that every election is an existential one. Meaning, if we lose this election, the country is lost. That sense that the stakes are so great raises the tensions in this election. Then we've seen the advent of a great deal of election misinformation and disinformation. If you look at the extremists on both sides and what they're hearing, the news they're getting is siloed. People are in an echo chamber. Whatever they've chosen to listen to is giving them a worldview that is very different than what some other people are getting so that there isn't a common base of knowledge about what is happening in the world. And then we have the emerging foreign threats, what the government agencies say are literally dozens of attempts by various countries to interfere with our elections. It may be that some countries favor candidate X and some candidate Y, but in general, the one thing they have in common is they would like to disrupt our election system, they would like to have our citizens angry at each other, they would like people to have less faith in the government and less faith in our democracy.
Leeper: So what you've described is obviously a pretty turbulent and polarized environment. What is the impact of that environment on voters and on the election itself?
Potter: The distrust it generates is a serious problem when you start with the fact that former President Trump still says that the last election was somehow rigged and fraudulent and stolen from him. And so you have a large number of Republicans who think there's something wrong with our election system. When people don't trust the electoral process, they think the other party is the enemy and the country is going to be in trouble if the other party wins, they develop a win-at-all-costs mentality. And this leads to a fair amount of anti-democratic activity. So in a number of states that decided that the 2020 election might have gone differently if fewer people voted, if absentee voting was not so easy, if it wasn't so simple for working people to vote after hours or on weekends, state officials in those states have made it harder to vote. They've said, "You can't have 24-hour voting. You can't have drive-by voting." States in some cases say you need a specific excuse to vote early or absentee. Texas says you have to be over 65 or able to prove that you're not going to be in your voting location on election day. So things like that are designed to make it harder for people to vote and will be successful in some places at doing that.
Then we've seen really a new phenomenon of large-scale challenges to registered voters, where somebody comes in and says, "I've looked at the list and I think the following 10, 000 people shouldn't be registered to vote." They may have done some internet research with old databases, they may say, "I don't think they live at those addresses anymore." But those mass challenges do make it harder for people to vote. So those sorts of things that we're seeing now before the election do interfere with it and make the risk higher that there are voters who will find it hard to vote this year or be scared away from voting. That's separate from a lot of post election litigation, particularly in close states where someone is going to say, "We're not certain that everyone who voted was qualified to vote," or "Did the ballot get treated properly?" all the sorts of issues that can be used by a losing candidate when they want to argue there was something wrong with the election. And this is being paired with really aggressive attacks on election officials, whether it is hate mail or phone calls or threatening presence turning up at polls in states that allow open carry guns. Then of course, election officials are already overburdened trying to run elections carefully and accurately. Many of them were subject to harassment and abuse after the last election, and people who distrust the system are attacking them now and I think we'll definitely do so if they don't like the election results in their states.
Leeper: What I'm hearing from you is that instead of attempting to win votes, there's this effort by political actors to instead suppress votes. Is that a fair summary?
Potter: Yes. The bottom line is that elections have become a battlefield where instead of convincing people to vote for your candidate, much of the effort is spent trying to make it hard for supporters of the other candidate to vote.
Leeper: Now, Trevor, I know that over the last five years I've gotten to know you pretty well, and I don't consider you to be either a pessimist or an optimist, but rather a realist. And so, I want to ask you truthfully, it's not all bad news, right? Where are you seeing progress being made?
Potter: Oh, I think there's been a lot of progress made, starting with the fact that election officials after the contested 2020 election have gone to great efforts to be more transparent, to educate the voters in their areas about how the election system works, to explain that election officials are not here from Mars, they're actually your neighbors, the people down the block. Many election officials are putting cameras in, they're counting places so that voters can see the votes being counted. And a number of states are now able to put on barcodes and let voters track their ballots so they know they've arrived safely. So election officials are doing a lot more than they had done in the past. And then I think there are a number of examples where the laws have changed for the better. Either the legislatures have done that heavy work or the citizens themselves had.
Arizona has a new transparency law in state elections which will tell citizens there a lot more about who is actually paying for the advertising they're seeing. In the whole area of redistricting gerrymandering, how you draw district lines for legislatures and Congress, a number of states have made real progress in creating a fairer system of map-drawing. Michigan had a citizen initiative and now has independent redistricting commissions and fair maps. They've had that now for more than one cycle, and the new legislature has passed a number of laws to make sure elections run smoothly, that election workers are protected. In Wisconsin this year, the state Supreme Court said that the old maps drawn all the way back based on a 2010 gerrymander were unconstitutional under the state constitution. New maps were drawn by the legislature, signed by the governor, that are much fairer. The result of that will be the first election in 14 years in Wisconsin where both parties have a shot at winning control of the legislature. And there probably will not be a supermajority for either party, which they've had in the past under the gerrymandered maps. And there are lots of states this year with ballot measures that would either increase transparency or provide more choices in elections. The whole area of ranked choice voting, which at the moment Maine and Alaska have in a number of cities, open primaries or some mixture where independents have a way of participating in who the candidates are in the general election, I think all of those increase citizen choices and are good experiments in how to provide more opportunities for voters and more representation for voters.
Leeper: I feel like that answer does such a good job of showing how all the issues that CLC works on weave together. There's things that our redistricting team might be working on, with advocating for Independent Redistricting Commissions and our policy team advocating for State Voting Rights Acts and how all of those things come together to make for a stronger democracy come election day.
Potter: There's no one answer to how we improve our democracy. It's a series of possibilities. Whether it's better information, more transparency, fairer maps, more opportunities to vote and enable people to get to the polls, all of those come together to improve our democracy. No one of them can do it alone.
Leeper: Now, speaking of getting to the polls, Trevor, have you cast your ballot yet this year?
Potter: I haven't. I'm waiting for election day. In my case, I like going into the polling place on election day. I live outside of Washington in a reasonably small community, so I'm likely to know a number of the election officials. That's an old-fashioned experience.
Leeper: I also haven't cast my ballot yet. I'm going to be voting early because I'll be working, I know for sure on election day. But I'm wondering, what should voters, like you and I, who haven't yet cast their ballots be thinking about? And of course, like you and I, we want to make sure that all of our listeners make a plan and know when they're voting and how they're voting.
Potter: Making sure you are in fact registered, making certain that you know where your polling place is, visiting vote.org for more information is important. Do your research, talk with your friends and neighbors. If you're in a state with lots of ballot propositions, it's a great idea to go online in advance and make certain you know what they are, have read them. Because when you're in a polling booth with a line behind you, you can feel a little bit rushed. You don't want to be surprised or read something and say, "What the heck is that?"
Leeper: Turning directions a little bit, we've spoken about this on the podcast before, election night anxiety, and so people tuning in to the news station on November 5th and wondering what's going to happen. What should voters expect on election night and in the days following?
Potter: The first thing to understand is it's unlikely that we will know with any certainty who has won the election on election night. Even when the announcer says, "The polls have now closed in whatever state," depending on the state and what their process is for opening votes, counting votes, reporting votes, they may be reporting 90% of the votes, they may be reporting 10% or less. Some states have laws that allow votes that come in ahead of the election, whether it's absentee or early votes, to be processed, not counted but processed so that the envelopes have been opened, the signatures have been checked, and the ballots are ready to be fed into the counting machines. You will hear newscasters say, "Well, 90% of the ballots are in this state, and it's clear that candidate X or Y has won" or "It's really close. We don't know, we're going to have to wait for final tallies and votes." But in other states, Pennsylvania and Wisconsin, two of the key hotly contested states, state law still says that early ballots, absentee ballots cannot be touched, cannot be processed until election day. The result of that is in those states we will get numbers from the polling machines, the actual voting machines, of people who voted on election day, we'll get those that night. They will come right in because people read the numbers on the machines. Meanwhile, there are hundreds of election workers opening ballots, checking signatures, trying to get those organized to feed into machines, which they will do all night and the next day. And if it's really close, they may be waiting for overseas ballots that they haven't received yet but will have to count under their state law. So it may be that in some of the close states with a slow process, it's a day, two days, three days before we have a somewhat reliable but still unofficial count. I say unofficial because the state won't have gone back, rechecked it, there won't have been challenges and they won't have finally certified that count. So it may be a couple days after the election before we know whether there are states that are going to be contested, whether there'll be challenges to votes in those states and have a somewhat clear picture of who is either just ahead or well ahead.
Leeper: You mentioned some states might be contested or the elections may be challenged there. What is CLC and groups like CLC, what are they doing to meet efforts to disrupt the electoral process?
Potter: If it's on election day, we are fully prepared to contact local officials if needed if there's interference with voting. As you go past election day, we will keep a close eye to make sure, as will local officials, that there are no attempts to interfere with the legal process and the counting of elections. There are perfectly appropriate ways for candidates who think the total is not accurate to challenge that through the legal system. And as in 2020 where there were I think 65 some lawsuits, there will be lawsuits this year from people who say, "I think this total doesn't look right" or "I have evidence that the following people voted and they shouldn't have." They will be fought out in court, and where CLC has something to add, either expertise or information, we will be participating in those court battles. The next piece we look at is a concern that in some states local officials may try not to certify the election results essentially because they don't like them. Every state has a process by which unofficial results become certified. They get the stamp of approval that these were the numbers that were reported by the election officials. And so on the certification front, what we really focused on last time for the first time that I am aware of in elections is the possibility that local election boards, county boards could say, "We've been given the numbers by all the polling places, but we're not going to certify them because we don't like them" or "We are suspicious" or "We think we shouldn't certify our numbers because we heard there were problems somewhere else in the state." The act of certifying election results is ministerial, meaning it's automatic. What you're saying is, like a bank teller, "I've added up the bills in front of me and they total X." I think the courts will do a good job if necessary in stepping in and making it clear that there's a separate legal process for challenging the acceptability of vote totals. So that's something that we have been involved in in the past elections and will be if necessary in this one as well.
Leeper: Looking specifically at the race for president now, I remember I was in my apartment in D. C. on January 6th, 2021, and I remember the chaos of that day, seeing all of the red and blue lights flashing all day and all night in our nation's Capitol. And obviously people across the country since then have seen footage of what occurred on that day. So I imagine this question is on the minds of a lot of Americans, which is, what assurances can you give voters that we will actually have a peaceful transfer of power regardless of who wins?
Potter: Well, the first assurance is that there were a lot of lessons learned from last time. In the legal side of things, what we learned is that the existing law that Congress was using to accept electoral count votes and decide which ones to count, that existing law had a lot of gray areas, was very confusing, and did not cover everything that it should have. It was more than 100 years old, and so Congress has since then rewritten the law. Congress passed the Electoral Count Reform Act. CLC was actually involved right after the 2020 election in assembling a group of constitutional lawyers, Supreme Court experts, and looking at the old law and saying, "So what is it that we need to have Congress clarify before the next election?" And on a bipartisan basis with the leadership of both parties in both houses, Congress went ahead, looked at those issues, and clarified the process. And that's good news for everyone. I'm afraid the January 6th activities were a shocking civics lesson for Americans in terms of what the electoral college is, how Congress deals with it. This time around, the rules will be much clearer. We may still see arguments and disputes, but I think the rules will be much clearer in terms of how those get resolved.
Leeper: That's the legal side, what about in terms of the rhetoric around the transfer of power?
Potter: Well, we seem to have entered a new place in our country's history where it is the common practice if you don't like the election result to say somehow the election was stolen and fraudulent. That's not where we have traditionally been. I mean, we've had two big elections in reasonably recent memory where the losing candidate disputed the result or wanted to dispute it but then accepted it once the system had played out and the electors had been chosen. You go all the way back to 1960, very close election, allegations that the Democrats had somehow cooked the results in Illinois and Richard Nixon, the incumbent vice president, declines to challenge those results. He says, "That would be wrong. It would diminish faith in our system." Then of course, the famous 2000 election where Vice President Gore thought he'd won Florida, then there's a recount, then the Supreme Court intervenes, stops the recount, and effectively awards the Florida electors to his challenger, Governor Bush. What does Gore say? Gore says, "I think the Supreme Court is wrong, I disagree, but I accept the results. This is the end of the process. I congratulate President-elect Bush and offer him my support." That's where we have been until 2020. There is no way to control the rhetoric of candidates. What I think there is the renewed importance of explaining what the system is, how the votes are counted, how the electoral college works, and at the end of the day when Congress has announced a winner, urging everyone to accept that winner whether you like it or not, and proceed to the next election.
Leeper: Thank you, Trevor, and thank you for being here with us today and talking about how we got where we are. I'm sure we'll have you along as we talk about where we end up afterwards. Thanks.
Potter: Thanks very much, Simone. It's great to be able to talk to you about these issues.
Leeper: This election cycle is unlike anything I've seen in my career. The whole point of elections is to enable millions of people to make their voices heard, which is a cornerstone of our democracy. Lawmakers, election officials and advocates have prepared for this moment, and there are strong protections in place for elections that ensure they will be safe and secure. At the end of the day, this election cycle ultimately will result in fair, accurate outcomes that reflect the will of the voters. Special thanks to guest Trevor Potter for joining us today. You can find more background information on the topics discussed in our show notes, along with a full transcript of the episode. This season of Democracy Decoded is produced by JAR Audio for Campaign Legal Center. CLC is a nonpartisan legal organization dedicated to solving a wide range of challenges facing American democracy. We fight for every American's freedom to vote and participate meaningfully in the democratic process, particularly Americans who have faced political barriers because of race, ethnicity, or economic status. You can learn more about us and support our work at campaignlegal.org.
I'm your host, Simone Leeper. Thanks so much for listening. If you learned something today, we'd really appreciate it if you could leave us a review on your podcast platform of choice and hit Subscribe to get updates as we release new episodes in the coming weeks. Leading the production for CLC are Casey Atkins, Multimedia Manager, and Matty Tate-Smith, Senior Communications Manager for Elections. This podcast was produced by Sam Eifling and Reaon Ford, edited and mixed by Luke Batiot. Democracy Decoded is a member of The Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at democracygroup.org.