On this week’s episode, we discuss the litigation that is ever increasing in the election law field. With November 3rdjust five months away, it’s the perfect time to learn about effective ballot management and how to prevent election interference.

Jessica Furst Johnson is Of Counsel at Holtzman Vogel Josefiak Torchinsky PLLC, focusing her practice on political committees, campaign finance and election law, lobbying and ethics compliance, and tax-exempt organizations. She joins the podcast to explain what we need to consider as election day approaches.

Jessica served as General Counsel to the National Republican Congressional Committee in the 2010 and 2012 cycles and prior to her time at the NRCC, Jessica was an associate in a Washington, D.C. law firm, advising candidates, members of Congress and other elected officials, tax-exempt entities and political action committees on issues relating to Federal Election Commission compliance, House and Senate Ethics Rules, political strategy, and state lobbying law.

She Thinks Podcast · Election Integrity—Why It Matters

Transcript

Beverly:

Welcome to She Thinks, a podcast where you’re allowed to think for yourself. I’m your host, Beverly Hallberg. On today’s episode, we discuss the litigation that is ever increasing in the election law field with November 3rd just five months away, it’s the perfect time to learn about effective ballot management and the best steps to prevent election interference. Before we dive in, IWF does know that many Americans are facing unprecedented challenges due to COVID-19 and that it’s more important than ever to show what America is made of. IWF is highlighting American ideals of ingenuity, generosity, and kindness from everyday Americans donating blood to companies, providing free food and housing. It’s a beautiful reminder that we’re in this together. Visit IWF.org or check us out on Facebook and Twitter and follow our campaign using #inthistogether that is #inthistogether, to learn more about the campaign. Now to our guests, Jessica Furst Johnson. Jessica is a counsel at Holtzman Vogel Josefiak Torchinsky PLLC, focusing her practice on political committees, campaign finance and election law, lobbying and ethics compliance and tax exempt organizations.

Jessica served as general counsel to the national Republican congressional committee in the 2010 and 2012 cycles. Prior to her time at the NRCC, Jessica was an associate in a Washington DC law firm, advising candidates, members of Congress and other elected officials. Jessica, a pleasure to have you on She Thinks today.

Jessica:

Thanks for having me, Beverly.

Beverly:

I thought I would start us off by something easy, talking about the very controversial tweet that the president sent out about mail and ballots, start easy. Let’s talk about that. Before I ask the question, let me go ahead and remind people of the tweet that he sent that did cause Twitter to enact their first fact check on the president. The tweet he sent out is, “There is no way zero that mail and ballots will be anything less than substantially fraudulent. Mailboxes will be robbed. Ballots will be forged and even illegally printed out and fraudulently signed. The governor of California is sending ballots to millions of people.” My question is, first of all, is this an accurate tweet? Should it have been fact checked or is it a mixed bag? Some things are accurate, some things may be not so much.

Jessica:

What I think is definitely true is that mail-in balloting itself is fraught with opportunity for confusion, especially amongst voters and anybody who’s in the election administration field should really be kind of concerned about the idea that, especially Democrats are pushing for these all mail elections everywhere. In 2016, there were only seven states where a majority of voters cast ballots by mail. We only have a very few number of states that do their elections entirely by mail. Most relevant, I think the Washington secretary of state, Kim Wyman, when she was first on the spot in light of the pandemic and asked about the move to all mail elections, she noted that it took her office five years to transition to an all-mail election plan. This is very, very difficult stuff. One of the leading election attorneys on the Democrat side just noted today on Twitter that he was nervous about the postal services ability to handle all mail balloting.

I think that there are tons and tons of issues and tons of tons of reasons to be concerned about this idea that we as a country, whether it’s because of a pandemic or anything else can really just quickly shift to all mail elections. I think that the states are right to be looking at all the potential pitfalls and to think about how to do this most efficiently, that protects the vote.

Beverly:

When did mail-in ballots start? I know when I think of that, I think of military people who are serving our country overseas, obviously can’t vote in person, but when did the mail-in ballots start? Do you think that there are very valid reasons why we need to keep it open in all states, even if you don’t support fully moving towards a mail-in system?

Jessica:

Well, mail-in balloting has been around for quite a long time. I mean, think back to the 2000 election where we infamously have these hanging CHADS. Some of those were ballots that were kept in polling places, but other of those were absentee ballots and the like. It’s not that the mailing of a ballot is a new phenomenon. It’s just that we’re seeing, especially right now, this really fervent increased push to move the substantial amount of voting to be done online. Across states, especially with the primary we have this week, Pennsylvania comes to mind. Wisconsin, certainly we saw last month, DC. I think they said that their absentee ballot request was tenfold from what it had been previously. I think what’s happening is that we’re just seeing this increased demand again, especially in light of the pandemic for mail-in balloting.

It’s something that states are really having to grapple with. That being said, it’s absolutely true that there’s a great subset of folks who still insist on voting in person. There’s also been research that’s come out in the last few weeks about how this move towards mail-in balloting might disproportionately impact minorities and low income voters. That’s also something to contend with. There’s certainly that sort of theme that was running throughout the California 25 results that people have been analyzing in light of that special election last month.

We have a lot to learn. Again, I think that states are right to resist this call to just wholesale move their entire electoral process to mail without really understanding A, the process that’s required. I mean, we saw in DC this week, these long, long lines that people have seen they’ve moved their voting centers, I think, down to 20 from the larger number they’d have previously. They seemed relatively unprepared for that. There’s certainly a process here that has to be considered. I think states are kind of right to say, “Can we just hold and make sure we’re responding to this pandemic in a way that allows people to vote safely, in a way that they’re comfortable, but we still have to be thoughtful about enacting these wholesale changes that might call into question the results of the election in the end.”

Beverly:

A term I continue to hear is this term ballot harvesting. Can you explain what that is? Also, along those lines, when we talk about mail-in voting, [inaudible 00:06:55] has a higher percentage of fraud. Why is that? How does that lead to greater fraud?

Jessica:

Well, I think when you, taking the mail-in voting first, when you think about the process that’s required to mail in a ballot, there are certain things that a voter has to do. You have to remember to sign it. You have to make sure you get it in by the deadline. If you’ve never voted before, perhaps your state has some sort of ID requirement. There might be a witness or an affirmation acquirement that you have to complete. There are lots of opportunities for voters to just mess up and have a ballot submitted that doesn’t check all the boxes. For that reason, the ballot will be not counted. I think that’s, again, going back to this idea that some folks really like to vote in-person. I think that is one of the reasons why that may be true. That it’s just fact, that absentee ballots, mail in ballots are often not counted proportionately when you consider them with the ballots cast in the polling places.

I certainly think that that’s something that folks have been really concerned about, and use to push back when we see these calls for online elections. Ballot harvesting, something that, you’re right, it’s definitely been a term that we’ve been hearing more and more. There’s been litigation that was started some years ago. Actually, there was a very prominent case in Arizona that has really made a lot of people interested in this term. We’re also seeing this continue to crop up across the country now in light of the pandemic. This is this idea that somebody who is not the voter and not a family member or a caretaker as is often provided for by the state laws can collect these ballots, once they’ve been voted, and return them to whether it’s the local elections office or the secretary of state or whatever the proper or vote center or whatever the state says is permissible.

That’s what this term means. I’ll admit when election officials kind of have this public debate about whether or not it’s appropriate, they really don’t do a great job of defining this term and helping us understand what they mean. That’s really what it means. The issue here is that, say that somebody is out collecting ballots and they have to turn them in by the close of business on election day, the time the polls close, but yet, oops, they forget a big box of ballots in their car. That is certainly something. Then those ballots aren’t counted. I mean, that’s certainly something that is not outside the realm of possibilities and something to be thoughtful about. I think also, and the reason ballot harvesting is often thought to create opportunities for fraud, which the house administration committee in the minority, the Republicans did a great job of laying out recently in a report that they issued last month was is that you’ve got all of these people who have no formal relationship with these voters often who are responsible for collecting their ballot.

There’s really no way to tell that there wasn’t any undue influence or pressure to tell these voters how to vote. I think the Republican argument against ballot harvesting has been, listen. Well, first of all, we’re in the midst of pandemic. you know, the idea that we want total strangers going to voters and collecting ballots from them that have been often sealed with saliva is sort of silly. I mean, that just runs counter to everything that we’re seeing from the CDC and other guidance in terms of how to stay safe. I think Republicans are saying we absolutely want to make it easy for people to vote. That’s why you see some States grappling with, well, should we prepay postage? Is that a way to make this easier? Should we create drop box places that are monitored or how should we do this?

This idea that random individuals can go throughout our community, especially in the midst of a pandemic and collect all of these ballots where we have no idea, they’re not required to report how many they collected, when they collected them, who they collected them from you. I just think it creates an opportunity again for these election results to be called into question at the end, which I think is something that is deeply important for our country to have faith that the election results as it’s reported, be it on election night or weeks later, I think as we’re going to see more of, that there’s something to it and that it’s right, and it’s fair and it’s accurate. I think about harvesting is really something that can call that into question.

Beverly:

I’m glad that you brought up election integrity. I think not only the mail-in ballots, but another aspect of this that is really concerning is that in 2016, there was the Russian interference into our elections. Do you think that we are facing a point in time where the integrity of the election is going to be more than ever before and could lead to a lot of chaos?

Jessica:

A hundred percent. I think the best indicator of that is the litigation that’s just flying rampant in the election administration arena. It seems to me that particularly Democrats have been kind of unwilling often to accept what the voters have determined on election night. We see these crazy lawsuits that come right after an election. I think that sort of sends a message that the results delivered by elections officials in their various jurisdictions are not to be trusted. then we also have these situations where the rules are up for grabs. The Democrats are requesting that these rules be changed so close to these elections. I think that it causes voters to, again, question whether the process is correct and then ultimately be confused. All of this only means that if you have a closed election, whereas that should be normal, we should want these heated debates and we should want two great candidates. We should want two good options.

When you have a closed election, that should be a great thing, but we should all rest assured when we get the answer that we know that this person was properly elected. I don’t think that this litigation that we’re seeing is really helpful to that cause. It seems like it just never, never ends.

Beverly:

Let’s get into what you think are the best steps to try to, as best as we can, ensure that there is integrity in the election results. When you think about the management of elections, of course, states can decide what they want to do as far as how people vote, but based on what you work in and what you see every day, what do you think the states should do to try to make sure that their citizens feel very secure and the results and the outcomes?

Jessica:

Well, sure. There’s so much. I think that states really do have an obligation to push back against these federal mandates that we’re seeing coming. I mean, as you noted, the constitution really differs to the states on governing the time, manner and places of their elections. I think voters inherently trust their local elected officials, their election administrators, their states, more than they trust the federal government. I think it’s really important that states continue to stand strong there and to reserve the right to make their own changes. I think that your local elections officials are, most are best educated about the people that they’re working with. Allowing them to really have a great say in the processes is super helpful. I think poll workers need to continue to be very carefully selected, trained, protected, especially during a pandemic.

I think we’ve seen so much out there about concern for voter health and safety, but what about these poll workers and the canvassers? I think that training these folks will make everything run so much smoother, not only on election day, but in the canvas, which again, with this increased mail-in balloting that is likely, these canvases are going to last longer. I think that training could be super, super helpful. I think one thing that was really an issue in the Florida recount in 2018 was this opportunity to cure ballot infirmities. We’ve already talked about absentee balloting being subject to mistakes that voters can make. Often these ballots aren’t aren’t counted. I think states, if they haven’t already, and a lot of states do, states should really look at making sure that there’s an opportunity for cure.

There’s an opportunity for notice to the voter that there was something that was wrong with their ballot and an opportunity to cure that ballot and get that ballot counted. I think that courts are seeming very interested in ensuring that voters do have this opportunity. Again, that is such a challenge and so much easier said than done given the great number of mail-in ballots that I think we’re going to see across the country. I think it’s really important to allow voters to know that their vote was being counted. That was another thing that has come up this week in the district of Columbia elections. They had an app for tracking the ballot and that seemed to kind of fail at the last moment. There was a lot of voter confusion about whether their ballot was counted or received.

I think anything we can do to help voters rest assured that if they follow the process and if they attempt to vote, that we’re going to do our best to get that vote counted. I think that would be really, really helpful. I think ballot access is definitely also something that we’ve been looking at, especially in light of the pandemic. You’ve seen a lot of states grappling with signature requirements as it’s still safe to collect signatures. These are just a bunch of issues that I think we really have to look at carefully in order to conduct an election at any point, but especially now in 2020 where we seem to be facing so many challenges in this country.

Beverly:

I want to close with a topic of discussion that has come up, and that is a discussion to say that we need to get rid of the electoral college and go with a national popular vote. Of course, Congresswoman Alexandria Ocasio-Cortez has been leading the way. We’ve talked a lot about states and voting. It’s states who set up voting. How important is it for States to have the electoral college in place?

Jessica:

Well, I think I have to note, I think it’s very ironic how the interest in this topic and kind of a partisan alignment, I think has shifted. I’ve read that in the late ’60s and the early 70’s, that it was really the civil rights leaders that were pushing for the idea of the electoral college, because at the time it was thought that it would really present an opportunity to build coalitions and really get some of the populations and people that had been underrepresented in our vote, get them a say and doing that by, as we now know, the electoral college. It gives, raises up some of the smaller states and gives them more votes by determining this based on congressional representation and some of the larger states don’t have as much of a say. It sort of is thought to kind of even out the playing field.

I think that the uprising and consensus is a little strange given that the electoral college is not all that much unlike our Senator or House where you can also in the Senate, you can win the majority of the Senate in terms of having control of the leadership there, without having won the most votes for all senators across the country. Same thing in the house. You can be elected speaker of the House. Your party can be empowered in the US House without having won the majority of the House votes. I think that this is something that’s been so long standing our country and it survived. There’s some times where it seemed to work against one party, one election, and then the other party, the other election. I know there was a time years ago to where Republicans were really angry about the electoral college.

There was a blue wave period where it seemed that Republicans couldn’t quite figure out how to win elections given the electoral college. I think this is, I mean, I guess if I’m predicting, I feel like this will die down. This does seem to be kind of a hot issue right now. I think the states will select their case before the Supreme court is certainly shining a light on the concept of the electoral college. The idea, obviously that president Trump won the electoral college without winning the popular vote, which by the way, I mean, this seems to be something that most people think is so crazy, but it’s happened twice in the US, happened twice in India. I know has happened in Australia, Canada, Japan, Great Britain. We’re hardly the only country where we have this kind of construct.

I think it’s served us well in the past. Again, I just, I’m really reluctant to agree. I hope other folks that are looking at this issue feel the same way to kind of wholesale throw out something that’s been in place for so long and has really served a lot of us well over the years, just because there was this one very controversial election, which I think everybody would agree also involved a polarizing president. It doesn’t mean that justice wasn’t served. It just means that we had sort of an interesting effect from the application electoral college.

Beverly:

Final, final question for you. How are you preparing for election day and what you expect your workload to be like around that time? Are we in for the long haul in determining who’s president, do you think?

Jessica:

I hate to tell you, but yes. I think last year or the last election, I should say, and in 2018, I made a really grave mistake, which is very silly for an elections worker to do. I scheduled a vacation for the week before Thanksgiving. Of course, right as that happens, then I find myself in the midst of the recount in Florida and the vacation was canceled and my kids were not going to Disney World. It was a horrible, horrible situation for them obviously, but I’ve learned my lesson. I would give that caution to others who are looking at working in this field or volunteering or unfortunately even just having to think about how they’ll be impacted by their local news coverage, but yes. I think if the mail-in balloting doesn’t do it, which I certainly expect there will be a lot of States and places where we don’t know the results for days, weeks.

I mean, there’s places out West, particularly California, Arizona, where that’s always already been a problem. I think we’ll see more of that. Just the canvas will take a long time and that will prevent us from knowing results right away. Also, the litigation that will be filed. It is inevitable. We’re also upon a redistricting cycle. A lot of these local elections that are certainly important, always haven’t even heightened importance now because a lot of states tell the legislature that they have the authority to draw these maps for districting purposes. That gives these elections another level of import that you probably insight more litigation.

I think that again, unfortunately a lot of times the party, particularly Democrats, are looking at ways that they can sue to get the result that they didn’t perhaps get on election night that they wanted. I think that we no longer have election night at all. I think we have election week, maybe election month, but I think this idea that we will wake up on November 4th and know who has won the presidency and who has been in control of the House and Senate is probably not really something to bank on.

Beverly:

Just what everybody likes to hear, election chaos.

Jessica:

I’m sorry. The bearer of great news. Yeah.

Beverly:

Well, we so appreciate though, you coming on and explaining the issue for us. Also, just thank you for all the work that you do to try to work on the integrity of elections and the litigation that comes from it. Thank you for joining us on She Thinks.

Jessica:

Thanks for having me.

Beverly:

Thank you for joining us. Before you go, Independent Women’s Forum does want you to know that we rely on the generosity of supporters like you and investment in IWF fuels our efforts to enhance freedom, opportunity and wellbeing for all Americans. Please consider making a small donation to IWF by visiting IWF.org/donate. That’s IWF.org/donate. Last, if you enjoyed this episode of She Thinks, do leave us a rating or a review on iTunes. It does help and would love it if you shared this episode so that your friends know where they can find more, She Thinks episodes. From all of us here at Independent Women’s Forum, thanks for listening.