This November’s race between Vice President Kamala Harris and former President Donald Trump is expected to go down to the wire. But ahead of, on, and after Election Day, both campaigns and parties at the local, national, and state level will be ready to fight not just at the ballot box, but in the courtroom. From when mail-in ballots can be counted to the final Electoral College tally, state and federal election laws will play a major role in the outcome of this election.
What can we expect heading into this contest, and how can legal academics and law students play a role? In this episode, Berkeley Law Dean Erwin Chemerinsky talks with two election law experts: Richard Hasen, the Gary T. Schwartz Endowed Chair in Law at the UCLA School of Law, and Berkeley Law Professor Emily Rong Zhang.
Hasen is the director of UCLA’s Safeguarding Democracy Project and an internationally recognized expert in election law. He’s the co-author of leading casebooks in election law and remedies, the co-founder of the peer-reviewed Election Law Journal, and was an election law analyst for CNN in 2020 and for NBC News and MSNBC in 2022.
Zhang studies how the law can promote political participation and representation, especially of individuals from historically disadvantaged communities. Before she joined the Berkeley Law faculty in 2022, she was a Skadden Fellow at the ACLU Voting Rights Project.
Read more about the recent developments in the Pennsylvania case they discuss in this episode.
About:
More Just from Berkeley Law is a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
Have a question about teaching or studying law, or a topic you’d like Dean Chemerinsky to explore? Email us at morejust@berkeley.edu and tell us what’s on your mind.
Production by Yellow Armadillo Studios.
Episode Transcript
[MUSIC PLAYING] ERWIN CHEMERINSKY: I’m Erwin Chemerinsky, Dean of Berkeley Law. And this is More Just, a podcast about law schools can help solve society’s most difficult problems. This November’s presidential race between Vice President Kamala Harris and former President Donald Trump is expected to go down to the wire.
But ahead of, on, and after election day, both campaigns and parties at the local, national, and state level are ready to fight, not just at the ballot box, but in the courtroom from when mail in ballots can be counted to the final electoral college tally. State and federal election laws will play a major role in the outcome of this election.
What can we expect having this important presidential contest? How can legal academics and law students play a role? In this episode, I’m delighted to be joined by two experts in the area of election law, Rick Hasen, the Gary T. Schwartz endowed chair in law, UCLA School of Law, and Brooklyn Law professor Emily Rong Zhang.
Rick is the director of UCLA Safeguarding Democracy Project and an internationally recognized expert in election law. He’s the co-author of leading election law casebooks and also on remedies, the co-founder of the peer-reviewed Election Law Journal. He was also an election law analyst for CNN in 2020 and NBC News and MSNBC in 2022. And I had the great pleasure of being colleague with Rick for many years at UCLA Law School.
And I’m delighted now to be a colleague with Emily at Berkeley. Emily studies how the law can promote political participation and representation, especially of individuals from historically disadvantaged communities. Before she joined the Berkeley back in 2022, she was Skadden fellow, an attorney at the ACLU Voting Rights Project. Rick and Emily, thank you so much for being here and for talking about this important topic.
But I’d like to ask each of you to start is what do you see as the major likely legal issues arising from the 2024 presidential election? Rick, I’ll start with you.
RICK HANSEN: Well, first, Erwin, let me say it’s great to be back with you. And I miss us being colleagues in the hallway every day. So very jealous of Emily. But it’s always good to talk to you.
So I guess I would start with just a general observation that the type and extent of election litigation that we’re seeing in the pre-election period looks very different this time around compared to 2020. And the big difference is that in 2020, we were in the middle of a pandemic. The pandemic caused a number of changes in the way that elections were being conducted.
Many more people were voting by mail. Times were being changed of primaries. In some states, there were raging– there was a raging pandemic, and changes were not made. Both changes and the failure to make changes spurred litigation.
And so there was a lot of litigation over these issues. And if you listen to what Donald Trump– when he wasn’t talking about fraud, he was talking about irregularities. And if you probe what that meant, a lot of those claims were that the states were changing the rules from the way they were before.
This time around, we have much more stability. And so while there’s been some significant litigation, including litigation out of Arizona that made it to the Supreme Court over the rules for voter registration, there’s a major case pending in the Pennsylvania Supreme Court now over the treatment of certain undated and misdated but timely mail-in ballots.
It seems like the seriousness of the litigation and the possibility of that litigation having a major disruptive effect on the election seems lower. Now, of course, after the election, all bets are off. The most important question will be, how close is the election?
If the election is very close, then it’s going to be litigated to the hilt. And we can talk about whether we’re in better shape post election than pre-election a little bit later on. But it’s hard to predict what the post-election environment is going to look like. But the pre-election environment, even though there’s a lot of litigation, it does not seem to me to be as significant or as likely to have a disruptive effect on the election.
ERWIN CHEMERINSKY: Thank you. Emily, do you share that perspective?
EMILY RONG ZHANG: I think what’s a little dispiriting for me, especially about the Arizona case, is the way in which playbook to sow doubt, confusion, and fear about the election process has come up in the form of this fear about non-citizen voting, which is not an old fear and not an old non-problem.
In fact, it’s the better way to name the problem is actually non-citizen non voting because most non-citizens don’t vote as they’re not supposed to. But that’s become– it’s been used as this great fear that’s supposedly kind of infecting all our elections when in fact, it hasn’t been making its way even up to the Supreme Court through the Arizona case.
Seeing that come up again, even as the evidence is really clear in several lawsuits that this doesn’t occur, that makes me afraid– and that makes me afraid for what may happen post election based on the fear that’s been sowed pre-election about its occurrence. And the only other thing I’ll add to what Rick said is that we’ve got these kind of known knowns, these lawsuits that have already popped up with issues that we’re familiar with in this election cycle.
There may still be a bunch of known unknowns, things that usually happen in elections that hasn’t popped up yet. And so for instance, we’ve got– the potential always the concern about natural disasters in certain parts of the country, which may disrupt various aspects of election administration and may necessitate some adjustment to those conditions. And we don’t how those kinds of fights will play out.
Those fights used to play out in somewhat mundane ways. Voting rights attorneys in places that are hit by natural disasters would show up and try to get various rules, normal rules relaxed because there’s been a natural disaster. People didn’t get their mail-in ballots, or people weren’t able to be home and the like.
And that litigation used to happen in every re-election cycle somewhat quietly. And everyone accepts that there needs to be some flexibility in the rules to accommodate situations like these. But if that were to arise in this election, I think there is some uncertainty about how that litigation would play out and get politicized much more than it usually would have.
ERWIN CHEMERINSKY: Let me ask you, Emily, to describe the Arizona matter that went before the court just in case some of our listeners aren’t familiar with it.
EMILY RONG ZHANG: There’s been a very long fight in some states. Arizona is a big one, where states have wanted to impose a documentary proof of citizenship requirement that is requiring you to demonstrate that a citizen when you register to vote. Now, you can only vote if you’re a citizen.
And usually, you register to vote and demonstrate that you’re a citizen through what’s known as the attestation requirement on the federal voter registration form. You check a box that say, under penalty of perjury, I declare that I am a citizen, that I’m eligible to vote.
And states want to go beyond that. They want something additional. They want you to show– and typically, the way to show your citizenship is a passport or a birth certificate, both of which are not documents that you or I have with us on a regular basis.
The Supreme Court had held in an earlier case that the state had to use the federal form when registering voters. But states, sometimes, have their own forms, the federal form versus the state form. And the reason that the federal form can’t be altered is because of preemption.
There’s a federal law that sets out the federal form. But states that want to impose a documentary proof of citizenship requirement, like Arizona, then said, well, we can’t mess with the federal form, but we can do something to the state form. And so we’re going to impose a citizenship proof requirement for our state form. And the Supreme Court just blessed that particular aspect of Arizona’s law in its recent decision by staying that aspect of the lower court decision from Arizona.
ERWIN CHEMERINSKY: Rick, do you think that will have much effect in Arizona, which is a swing state or other places? Is this a Supreme Court ruling we should be concerned about?
RICK HANSEN: Well, let me start by saying let’s just step back and talk about the absurdity of the situation. Right now in Arizona, if you go and register to vote and you provide documentary proof of citizenship, for some people, that might be easy. It might be their driver’s license number, where their citizenship has already been determined.
But people who don’t drive, college students, for example, may be without a driver’s license, those people, if you provide this documentary proof of citizenship, you can vote in all elections. If you fill out a piece of paper that the federal government created the form, you can vote in federal elections. And now, if you fill out the state form, you can not vote at all. You will not be registered.
It kind of feels like we’re going back to the Jim Crow South. You make a technical mistake, and you’re disenfranchised. So it’s just an absurd situation that, who’s going to pay attention to which form they’re filling out? And lots of people don’t have access to their birth certificate or their naturalization certificate.
And as Emily said, the rate of non-citizen voting in this country is extremely small. So you’ve got the potential to disenfranchise thousands of voters going forward. But it’s not serving any important social purpose. Now, how important is this going to be for this election?
Importantly, the Supreme Court only granted this relief as to voters going forward. There were three justices, the three most conservative justices, Alito, Thomas, and Gorsuch, who would have gone further and essentially disenfranchised 40,000 people who had already filled out the state form without providing documentary proof of citizenship.
So it could have been worse, and that would have had a larger effect. But I think the opinion doesn’t bode so well for how the Supreme Court is going to perform in the 2024 election season. And the reason I say that is the court, ever since 2006, has been applying something that I coined as the Purcell principle, comes from a case called Purcell versus Gonzales.
The idea is generally when someone goes to a federal court for some emergency relief before an election, there’s a big thumb on the scale against granting that relief because of the danger of voter confusion and election administrator confusion. This principle is in tension with the way the court normally deals with emergency petitions, which is to consider four factors a likelihood of success on the merits, the irreparable harm to the plaintiff, balancing the hardships between the parties, and the public interest.
This Purcell factors goes to that fourth point, public interest. It’s certainly something that should be weighed, but it shouldn’t be the only factor. Well, in this case, the Supreme Court itself issued a court order in the weeks before the election as election administrators were getting ready to actually run the election.
And it’s creating– I just saw, as we’re recording this morning, that the Secretary of State of Arizona has asked the attorney general of Arizona for a legal opinion as how to deal with these registrations going forward. There’s a lot of questions. And really, they should be devoting their time to running the election.
So here, it makes one think that the Purcell principle applies to stop court orders that help voters but does not apply to court orders that hurt voters. And so I think the holding itself to extent there’s a holding, there’s not really an opinion from the court. So the sense the holding, not a big deal. The message that it sends is very troubling to me.
ERWIN CHEMERINSKY: And Emily, I don’t know if there’s anything you want to say about the Arizona case in particular, the Purcell principle. What more generally, what I would ask is, Republicans have consistently claimed that voter fraud is the problem, and that includes fraud by having non-citizens vote, whereas Democrats claim that the real problem is voter disenfranchisement. What do you think is real and what’s myth as we approach this election?
EMILY RONG ZHANG: Yeah. I mean, this is the really frustrating thing about non-citizen non-voting. Because we’ve had trials before, full blown trials with complete fact finding to try and figure out how much non-citizen voting there actually is. And one of the first cases I did out of law school was a case in Kansas, where the then Secretary of State was hell bent on demonstrating some very large problem of non-citizen voting in the state of Kansas.
And we spent a whole trial trying to figure out how much there actually was of it. My recollection is in that state, they found about 111 non-citizens on the voter rolls. And they said, well, there must be others. They made it onto the rolls. And now, they’re going to vote.
And we looked at those records. And of the 111th, maybe three to seven of them had actually voted. And all that goes to demonstrate is that a lot of people are on the rolls, probably for a mistake. Someone registered them incorrectly.
The expert at the time testified this was like robbing a bank and leaving all the money. You’d have got 111 noncitizens making it onto the rolls, and they’re supposed to be taking over our elections. And only three to five of them have ever actually voted.
It demonstrates that this is really not a significant problem. So we know that it doesn’t really occur. Now, of course it could occur, but there’s no evidence that it would. And of course, there are huge penalties to non-citizen voting.
So there is already a deterrence effect against this kind of fraud. The other fraud that Republicans had latched on to and the law that they advocated for voter ID laws also dealt with the form of fraud that I’d always found a very gutsy and very inelegant form of fraud. And that’s in-person voter fraud.
In order for voter ID laws to deter, the kind of fraud you’re preventing is someone showing up to a polling location and claiming to be someone else. And there’s just there aren’t that many warm bodies with names that resemble existing people on the rolls. And if you wanted to commit that kind of fraud, you’d have to show up in person.
You’d have to present as someone else with tons of witnesses around. You’d have to be a pretty gutsy and frankly, not very bright criminal to be perpetrating a voter fraud scheme at a large scale. And of course, most election contests that close, so you need to get a large number of bodies, each having someone else they have impersonate.
And you’re not worried that you’re going to get seen by everyone else and having a paper trail of you having shown up and done this. So I have always been worried about theoretical problems that these laws are meant to dealt with and actually figuring out what their incidence is because I do think there is a deterrence effect.
I mean, what Rick was saying earlier with the Arizona law, in addition to the disenfranchising effect, which is people who have already registered potentially and having that registration get canceled, there’s the concern that the fact that there is so much confusion about all of this might cause people to give up and not engage with the process at all because it’s either too confusing, that it’s bureaucratically cumbersome and the like, and that ends up deterring voters from participating. That’s not being accounted for, of course, at all from a decision like the one coming out of Arizona.
ERWIN CHEMERINSKY: Rick, if I could ask you the other half of that. After the 2020 election, a large number of states, especially as red states, adopted new laws with regard to voting. What do you see the effect of those will be in this election? And is there reason to be concerned that their impact will be voter disenfranchisement?
RICK HANSEN: So you’re right that we have seen new restrictive rules put in place. It’s very hard, as a matter of social science, to measure the effects of these laws. So, for example, take strict voter identification laws. Those have been in place now in some states for 10 or 15 years.
It’s very hard to say that these laws necessarily change election outcomes, that they deter Democrats more than Republicans. There is some evidence that they disproportionately affect poor and minority voters, which raises questions about whether or not they violate the Voting Rights Act. And there were some cases, including a case out of the Fifth Circuit, which is the most conservative court in the country, finding the Texas had violated Section two of the Voting Rights Act with its restrictive voter ID Law.
My take on these laws is– and I’m not someone who opposes the idea of voter identification in principle, if it’s done right, most democracies do universal voter registration and national voter identity. But that’s not the system we have. We have a state by state system, and some states administer the rules not very fairly to voters.
My take on a lot of these laws is that the question is whether or not the state has a good reason to put hurdles in front of eligible people. And usually, the state doesn’t. Emily mentioned the documentary proof of citizenship laws that I think are going to have a far greater effect than voter ID laws in deterring people from being able to register to vote.
And they don’t serve a good purpose. Even if they don’t affect election outcomes, they offend the dignity of voters. Unfortunately, the way the Supreme Court has set up both the Voting Rights Act and Equal Protection Clause jurisprudence under the Constitution in challenging election laws, there’s a huge thumb on the scale favoring the state over voters.
Voters have to show a huge burden on them, which is often hard to do. And states don’t have to come up with any evidence of actual fraud or promotion of voter confidence. They can just posit it, and that’s enough.
And so we’re in a system where I think voters are not put first. And these new laws that have been put in place, marginally, some of them are going to have more of an effect than others. Marginally, are they going to affect the outcome of the election?
I’m less concerned about that than I think some other people are. But I think a lot of these laws are unjustified. I’m equally, if not, more concerned about laws that might make it easier to subvert the results of the election. And I think this is something that is on our radar in a way that it was not before 2020.
That is, I think, most people took for granted that we would have peaceful transitions of power. People would vote. There would be fighting over maybe who won. But once we figured out who won, then that person would take office. Losers would consent to that essentially and say, okay, my side didn’t win, but we’ll reorganize and fight for next time.
What we saw after 2020 was a concerted attempt by Donald Trump to turn himself from an election loser into an election winner. That’s really disturbing. That is the primary danger that we face in the post election period.
And some changes, including I’d point to, changes that are being made by a Georgia election board that might make it easier to delay or stymie the certification of ballots in Georgia. Those are the laws I’m most concerned about that are coming– laws and regulations that have come out in the last few years that potentially could affect the outcome of the election.
ERWIN CHEMERINSKY: I want to come back in a second. But before we do, Emily, I want to ask you about this issue with regard to voter disenfranchisement, whether it’s in the perspective of the state laws that were adopted that Rick and I were talking about, or how the Supreme Court has narrowed the scope of the Voting Rights Act. Do you think that there is a serious likely problem with regard to voter disenfranchisement in the coming election?
EMILY RONG ZHANG: No, I’m completely with Rick on this. The classic way we think about this in the constitutional context is if you want to have election laws, it’s a balancing act. You’ve got to make sure it doesn’t impose a large burden on voters. And you’ve got to make sure that is justified by a valid state purpose.
And here, the jurisprudence is really out of whack. The state just says, we declare that it prevents fraud, and that means that the law is valid. And the burden is very high on voters to demonstrate harm.
I’ll say, too, there are lots of things that may cause harm and have deterrent effects that are really, really, really hard for social scientists to estimate correctly and properly under all the right conditions. We don’t live in a perfect lab. You can’t just give rodent group 1, drug A, and rodent group B, the lack of the drug, and then you can detect the effect.
We live in the real world. So there are lots of things that make it really hard to estimate the effect of these laws. The fact that civic organizations, political organizations respond to these laws may help alleviate some of their actual real world effects. That doesn’t mean, of course, the law hasn’t had a disenfranchising effect.
So, it’s really, really hard to figure out their actual effects. And requiring that demonstration from the voters while requiring nothing of the state to prove that the problem they’re trying to solve is real/prevalent in any way, that’s meant that we have these laws that, as Rick said, are unjustified even if they’re disenfranchising effect hasn’t been demonstrated with sufficient scientific rigor.
ERWIN CHEMERINSKY: Rick, a moment ago were talking about the Georgia election board changing some of the rules there. You’ve also written about, across the country, some changes with regard to election officials as a result of the 2020 election or attacks on election officials. Could you talk about that and whether you see a likely impact, again, depending on how close the election is?
RICK HANSEN: So in terms of election officials, we have seen some attrition. People are quitting because they’re facing threats. They’re facing harassment. It’s already a job where you’re underpaid and overworked. And it is a lot of pressure, especially because there is transparency.
And so I think about Ruby Freeman and Shaye Moss, the two election workers, women in Georgia, who someone caught a video of them as they were working to help with the tabulation of ballots. And next thing you know, Rudy Giuliani and others are attacking them as stealing the election. And they have won defamation cases.
Rudy Giuliani is going into bankruptcy at this point because he has essentially ruined these women’s lives. And so I am worried about that. I do think that election officials are aware of these risks. People are stepping up.
And so for the most part, I think that there are enough people who are going to be able to run the election. So I think people are pretty confident that the election will actually be run in a fair way in terms of people being able to vote, knowing that their ballots are going to be fairly and accurately counted in a transparent process.
What I’m more concerned about is the post-election period and potential attempts to try to subvert the outcome of the election like we saw in 2020. You may remember the fake elector scheme, where Donald Trump and his allies tried to get state legislatures to step in and pick alternative slates of electors, trying to get Mike Pence to throw out the electoral college votes of some states that Biden had won, where the Republican legislatures that could potentially put in other slates of electors.
And we saw the pressure on the United States Department of Justice to issue reports that would say that there was fraud in Georgia and other places to try to overturn the results of the election. So I don’t know what the post-election period is going to look like if it is close.
What I can say is in the post-election period, we are in better shape than we were in 2020 for two primary reasons. One, Congress in December of 2022 passed something called the Electoral Count Reform Act. And what that law did is that it clarified some of the arcane rules that dictate how Congress goes through the Byzantine process of counting electoral college votes.
It says, for example, the vice president can’t just unilaterally throw out votes that she doesn’t like, that states can’t– state legislatures can’t step in after voters have voted and simply replace their choice from the choice of the voters. The other thing that happened is that the Supreme Court decided a case in 2023 called Moore versus Harper.
It’s a very complicated case. You’re probably not going to get into all the details today. But what’s important for our purposes is that the court, in that case, rejected the most extreme version of what’s come to be known as the independent state legislature theory, which potentially could have allowed state legislatures to have unbridled power when it comes to federal elections, perhaps even trying to replace electors.
Now, I think under state law and under federal law, that wouldn’t have been allowed anyway. But it put a nail in the coffin for that. So we are in better shape this time because the attempt that was done last time has been closed off. But there’s always the danger of fighting the last war.
We don’t what the next attempts to try to manipulate the election might be. I mentioned earlier the Georgia certification rules. There’s a kind of whispers about a Hail Mary play to try to just stop some states from actually announcing any winner at all in their states election in the hopes of changing the denominator for counting the majority of electoral college votes in the electoral college.
These are all very unlikely scenarios, and I don’t want to create panic or grounds for people to be overly concerned. But I do think we have to be vigilant because it’s very unlikely that the next war is going to be fought like the last one.
ERWIN CHEMERINSKY: And, of course, had we been talking in September of 2000, we could not have possibly have imagined the litigation and including Bush versus Gore. So it’s hard to now what might happen. That said, Emily, I’d be interested in your talking about the post-election period.
Do you think the Electoral Count Act reform will make a difference? Do you share Rick’s sense that Moore versus Harper, and the rejection of the most extreme version, the independent state legislature theory should make us more confident going forward?
EMILY RONG ZHANG: Yeah, I might just add something to what Rick said just because I usually teach civil procedure. And one of the segments on Rule 11, we always– or I think most civ pro professors now teach the post 2020 election cases, that there were these attempts to use various rumors, unfounded allegations to overthrow/recount various races after 2020.
And that resulted in a bunch of Rule 11 sanctions for the lawyers who peddled these groundless theories with some significant consequences to their professional identity and their ability to practice law, which one would think is a very valuable asset to a person. So I think there is that additional deterrence effect that’s established by those 2020 cases that says to people, if you’re going to bring a case challenging the results of the election, you better have a Rule 11 basis to do so.
If not, what happened to those people in 2020 will happen to you, too. And in fact, now, you have the benefit of those opinions, saying that what they did wasn’t okay. I think that is an additional layer of deterrent protection against these groundless suits that could otherwise be very damaging to public confidence. They take time to resolve. They could potentially delay various aspects of the election and the like.
ERWIN CHEMERINSKY: Staggering amounts of money have been raised with regard to this election. Just in the days after the presidential debate between Donald Trump and Kamala Harris, this talks about how much money had been raised. Rick, you’ve written extensively with regard to campaign finance. I think your book is called Plutocrats United. Is the amount of money that’s being raised and spent with regard to this election of concern?
RICK HANSEN: No. That might surprise you as an answer. The total amount of money doesn’t bother me. Because it’s very expensive to reach voters. Emily and I, at least, are political wonks. We’re living this stuff every day. Most voters have better things to do.
They’re taking their kids to soccer practice. They’re working two jobs. They’re not really paying attention to politics to reach voters. And so that they know– I just saw someone writing on social media about a good friend of theirs who’s a doctor who said, wait, Mike Pence is not Donald Trump’s vice presidential running mate this time?
I mean, we kind of forget that people aren’t paying attention to politics. So the total amount of money to reach people is going to be high in a country as large as the United States. The problem is not the total amount of money. The problem is how that money is raised and from whom.
So in the last few election cycles, we have had, on the left and the right, individuals or couples who have contributed over $100 million to groups that are supporting candidates for office. We’re talking about Michael Bloomberg. We’re talking about Miriam and Sheldon Adelson.
We’re talking about people who are strong, ideologues in a great sense. And what they buy? What do they get for their money? They increase the chances that their preferred candidate is going to win. And more importantly, they increase their influence over those who are elected to office.
And so they have an outsized influence over public policy because of the money that they raise. So the problem is not the total amount of money. The problem is a fundamental inequality in our system.
Someone might have just as much passion as Miriam Adelson has about the election, but they don’t have hundreds of millions of dollars. They might not even have $100 to give. And so this is a problem that is not going to be easily fixed, given the jurisprudence of the Supreme Court in cases going back almost 50 years to Buckley versus Valeo.
This problems are not going to be fixed any time soon. But they are problems where we have a system of political equality and economic inequality. And yet, we allow the economic inequality to, in some cases, swamp the political equality commitments that we’re supposed to have in our democracy and under our Constitution.
ERWIN CHEMERINSKY: Emily, I’d be interested in your views with regard to the campaign finance. I’d also be interested is are there issues with regard to election law concerning other than presidential elections that we should be talking about? And are there issues with regard to House or Senate races, state, and local elections, that we’re not paying attention to because of our focus on the presidential election? I worry much more, for example, about campaign finance and the effect of spending large amounts of money in low visibility elections than I do with regard to presidential elections.
EMILY RONG ZHANG: Yeah, I think that’s exactly right. I mean that the money is disproportionately useful from the perspective of the people giving it in races that are much less salient and prominent. I mean, with presidential elections, people have a general orientation in terms of who they’re likely to vote for and the like. Not so with local ballot initiatives.
You hear a ballot initiative with a friendly sounding name, like improve society. And there’s a lot of money behind it. And there are lots of smiling children. That is just going to be much more influential than in the presidential election.
ERWIN CHEMERINSKY: Rick, I’ll ask you, are there other issues with regard to election law, with the coming election that we should be concerned about that we haven’t yet had the chance to talk about?
RICK HANSEN: Well, no, I think we’ve hit the main points, which is are voters going to be able to vote, and is there going to be this post election period? I would say that the biggest sleeper issue right now is the one that I briefly flagged earlier in our discussion, which is whether the Supreme Court is going to step in and stop state courts from more broadly protecting voters in federal elections.
So let me just explain this issue. And it’s the other half of Moore versus Harper, the case I mentioned a few minutes ago. So let’s talk about what’s going on in Pennsylvania right now. As I said earlier, there’s a case before the Pennsylvania Supreme Court, where the question is, how to treat mailed in ballots that arrive by election day?
So we they’re timely because they’ve arrived by election day. But they have either the wrong date on them or no date on them. And state law requires that they have a proper date on them. Should those ballots be counted, nonetheless, since that it’s just an immaterial error, that person wrote the wrong date or forgot to date the ballot?
There were a number of cases in federal court claiming that the failure to count these ballots would violate the Civil Rights Act of 1964. Those cases have failed so far. But now, there’s a case that says that this violates the free and equal provisions in the Pennsylvania Constitution.
And the Pennsylvania Supreme Court is going to decide whether or not that is correct. Just like four years ago, in the middle of the pandemic, the state Supreme Court extended by three days under that same provision of the state Constitution, the right for voters to vote and have their ballots counted if they arrive within three days of the election because of the problems with the mailed in ballots during the pandemic.
So here’s the federal issue, and here’s how we could end up in Supreme Court. The question is, when a state court applies a state constitutional provision to overtake a state statutory provision that governs, say, an election deadline, or in this case, governs a rule about what has to be on a form, does that violate the power given to state legislatures in Article I Section IV of the Constitution, which says the state legislatures get to set the rules for conducting congressional elections subject to congressional override or the rule in Article II, where the Constitution says that state legislatures get to set the manner for conducting presidential elections?
In Moore versus Harper, the court said that state legislatures have to act within the normal bounds of their powers and that state courts can interpret provisions of their state constitutions and can interpret state statutes. What they cannot do is, quote, “arrogate” the power of the state legislature.
Now, we don’t what that means. And I have no doubt that if the state Supreme Court in Pennsylvania decides that these undated or misdated but timely absentee ballots are going to be counted, that there’s going to be an emergency appeal to the Supreme Court, that is going to argue that the state court has arrogated the power of the legislature by changing the deadline.
And that– perhaps because the interpretation of this is novel, all this shows that they’ve arrogated the power of the legislature. Now, I don’t know what arrogation means. I don’t think anybody knows.
Is this going to be interpreted as a really deferential test, where most state court interpretations of their own state constitutions are okay or not? What if a state court applies a kind of living constitutionalism and they just don’t apply a rigid or strict originalist or textualist approach? Is that going to look to the conservative justices on the United States Supreme Court as arrogation? I’m concerned that it will.
ERWIN CHEMERINSKY: And of course, will the conservative justices who have traditionally professed federalism values in the need to defer to state courts, especially in criminal cases, follow that here as well? Emily, certainly you’ve used on that. But also as a running out of time. The question I’d ask you, and then ask Rick, what should law schools be doing in this regard? How can law schools help with regard to the integrity of the election or to hold democracy more generally? His last thoughts.
EMILY RONG ZHANG: Yeah, so I’m completely in agreement with Rick about this. I am no more optimistic than Rick is about what the Supreme Court will do if the Pennsylvania Supreme Court decides to interpret their free and fair election clause to not require dates/the correct date. The only thing I’ll say in response to that is, there are ways to still fix problems like these through public education campaigns before the election.
I’m reminded of exactly what happened in Pennsylvania last time around, where because mail in ballots were freshly implemented in Pennsylvania, they hadn’t been before, at least not on a wide scale. There was, at the time, the naked ballot problem showed up there.
That is in Pennsylvania, if you want to mail in your ballot, you’ve got to put it in a secrecy envelope before you put it in the mail in envelope, because the mail in envelope contains your name, address, and the like, and personal identifying information. The secrecy envelope is the one that preserves your anonymity.
And there, that went up to the Supreme Court. And the Pennsylvania Supreme Court said, sorry, free and fair elections. Yes, but the secrecy ballot really serves an important purpose here of preserving the anonymity. So, we’re going to have to stick with this requirement even if we know that there are voters out there who are not going to realize that they’ve got to put their ballot in the secrecy envelope and therefore resulting in them being disenfranchised because they didn’t live up to the letter of the law.
And there was a huge campaign in Pennsylvania, a very memorable campaign where local election officials, celebrities and the like posed naked or as naked as social media websites will allow them to advertise the fact that voters should be sure to remember to put their ballots in the envelope. So I could imagine something similar with the dating requirement, for instance, that there might be ways to counteract the kind of voter lack of knowledge about this particular requirement, although, of course, that’s costly and requires a lot of work on everyone else’s behalf to try and make sure that voters understand, and know about the technicality, and then adhere to it when submitting their ballots.
ERWIN CHEMERINSKY: Rick, what should law schools be doing in this regard?
RICK HANSEN: Well, I’ll say that this morning, I was very pleased to see that I received an email from– everyone at UCLA Law School received an email from our public interest department, noting that election day is going to be a day of service. It’s going to be a day when some students are going to be working as poll workers or otherwise assisting in the project.
Some will be working in election protection. And there’s a lot that law schools can do. I mean, obviously, we can raise awareness. At the Safeguarding Democracy Project, we’re holding a lot of online events.
And we can– law schools can educate the public on these things. But law students can get involved. Working as a poll worker, it’s a long day. Most law students are pretty young. They can stay up for a long period of time.
So why not do some public service and learn something along the way? There’s lots of ways to get involved. And in a completely nonpartisan way. You don’t have to be working for a political party or a candidate, but to help to see the process.
I was doing an event for the Safeguarding Democracy Project yesterday on certification. And I asked a version of this question, what can the average person do? And one of the panelists answered, go and observe the actual process by which ballots are certified.
These are public meetings. You can even watch these meetings online. But it’s important for there to be people there to actually witness what’s going on and how these processes work. And because our election system is so decentralized, it’s not as though all of this is happening in Washington, DC. It’s happening all over the country and there’s lots of places where there are entry points into the electoral process.
ERWIN CHEMERINSKY: Emily, your thoughts?
EMILY RONG ZHANG: Yeah. I mean, I think there’s a grand tradition among lawyers and in law schools of doing pro Bono work while students are in law school and building that muscle. And certainly, this is– election season is a great time to do some of that work, in addition to working in election administration.
One thing I’ve been working on is helping folks with criminal convictions navigate the voting process. And that’s just an area where law students actually have quite a bit of expertise, especially students who’ve taken various criminal legal related courses, have some extra expertise that the ordinary person doesn’t necessarily have/feel comfortable with, and finding these areas where the particularized legal knowledge can really make a difference for folks.
There’s lots to do, and there’s obviously lots at Berkeley Law that people are already doing. So I think that’s, yeah, finding ways, not just to contribute the way that everyone can, but finding some way in which the particular knowledge you’re learning in law school is interacting with the election process. That’s the way I think, to really have some strong value added.
ERWIN CHEMERINSKY: Alas, our time for this conversation is up. But my enormous thanks to Rick Hasen, the Gary T. Schwartz endowed chair at UCLA Law School, and my colleague Emily Zhang, a professor here at Berkeley Law. I hope you enjoyed this episode of More Just.
Just be sure to subscribe wherever you get your podcasts. If you have a question about the law or a topic, your life is covered. Send an email to morejust@berkeley.edu. morejust, being one word, @berkeley.edu. And share your thoughts with us. Until next time. I’m Berkeley Dean Erwin Chemerinsky.
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