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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Here during early voting week in America, 46 of the 50 states have polls open right now for in-person voting, and boy, are people voting in some important places. You were just hearing one of those examples on the BBC if you were listening, that's in the swing state of Georgia. More than a million people have voted already there according to state officials. That's never happened this early before. CNBC has an article called What's Driving Georgia's Record Early-Voter Turnout.

We heard one very beautiful description from that last guest there on the BBC, but CNBC also says it's largely from high-stakes battles over economics, voting rights, and access to healthcare, but turnout isn't as strong everywhere, it's down interestingly in some Republican states, Texas, also Utah. The New York Times has an article called Why Election Experts Are So Confused About the 2022 Turnout Mystery. Part of that mystery is why Republicans seem to be making it harder for their own supporters to vote.

The Times article refers to people "puzzling over the decision Republicans made during the pandemic to demonize mail-in and early voting after years of dominating the practice in states like Arizona and Florida." In some states, it says, "Republican party officials have quietly sent out mailers or digital ads urging their supporters to vote early, but more prominent Republican politicians dare not amplify those appeals lest they be on the receiving end of a rocket from Donald Trump," so says The New York Times. The mystery deepens when you look at the still kind of purple state of Florida.

According to the public radio and TV station WUFT down there, in an extraordinary sign of trouble for Democrats, it says, "The number of registered Republicans voting in Miami-Dade County surpassed Democrats yesterday. It's the Republicans voting early in greater numbers there." That was just the day after President Joe Biden visited the area, Miami area, on a campaign swing. Then there's misinformation ever more prominent and pervasive, and hello, Pennsylvania. The Times has an article about how Pennsylvania's experience underscores how pervasive false and misleading information has become in the country's electoral process online and off.

For example, it says, in July, a tweet made the rounds that said, "Breaking, Pennsylvania will not be accepting mail-in ballots." That was of course false and came from an account called the Donald J Trump Tracker. In September, The Times article says, "Mysterious letters began arriving in mailboxes in Chester County west of Philadelphia falsely telling people that their votes might not have been counted in the last election."

The article continues to debunk more falsehoods spreading in the state, it says, "No, the Democratic candidate for the United States Senate, Lieutenant Governor John Fetterman, does not have tattoos of the Crips, the notorious Los Angeles street gang, as Newt Gingrich said on Fox, nor did the Republican candidate for governor, Doug Mastriano, say that Iran’s supreme leader had 'the right idea of ​​how women should be treated,' as a post on Twitter claimed he said." The article says Mastriano himself has spread at least one whopper. It says, "He falsely accused the Children's Hospital of Philadelphia of kidnapping homeless and foster children and 'experimenting on them with gender transitioning.'"

Again, that was false. That was misinformation and that example was from the Republican candidate for governor himself as quoted in The New York Times. There's also voter intimidation taking place. A federal court yesterday, have you heard this, ordered a halt to armed posses patrolling drop boxes in Arizona and early polling places. The court ruled that being armed with guns or armed with cameras taking videos of voters was illegal intimidation. President Biden referred to that kind of thing in his speech on democracy last night.

President Biden: We must with one overwhelming unified voice speak as a country and say there's no place, no place, for voter intimidation or political violence in America, whether it's directed at Democrats or Republicans. No place, period. No place ever.

Brian Lehrer: There's also the threat to how the votes will be counted and whether the losers will concede. Hundreds of 2020 election deniers, as we've discussed previously here, are on the ballot this year for all levels of government, and last-minute challenges in court are trying to make it harder for mail-in votes to even count. A suit like that just failed in New York, another one just succeeded in Pennsylvania. Biden referred to that kind of thing last night too.

President Biden: A vote is not a partisan tool to be counted when it helps your candidates and tossed aside when it doesn't.

Brian Lehrer: Here we are in election week in America five days before election day in America. With us now is Wendy Weiser, vice president for Democracy, there's the title, vice president for Democracy at the Brennan Center for Justice, which works with the NYU Law School for what it calls the American ideals of democracy and equal justice for all. Among other things, Wendy Weiser has testified before the January 6th Committee in Congress this year about what she calls election sabotage bills and attacks as well in this big lie and post-January 6th era, attacks on impartial election administration, to be specific. Wendy, thanks for joining us. Welcome back to WNYC.

Wendy Weiser: Thank you for having me.

Brian Lehrer: Vice president for democracy, how recently did the Brennan Center even establish that position?

Wendy Weiser: [chuckles] Actually, the Brennan Center, one of our founding programs is the Democracy Program. It is one of the most significant initiatives we have to try to bolster and strengthen our democracy. Sadly, our democracy has been under siege, especially over the last couple of years.

Brian Lehrer: Before we get to some of the specifics of what's going on right now during early voting, some of the things I mentioned in the intro and some others, let me ask about some of what you testified to the January 6th Committee about. What are you referring to with the term election sabotage bills?

Wendy Weiser: We were looking at what were some of the downstream effects of the same kind of rhetoric and conduct that led to the attack on the Capitol on January 6th. The election denialism movement that it spurred has had a number of pernicious ongoing effects on our democracy, including fostering a slew of legislation across the country, new bills that make it harder to vote, and a real spike in vote suppression legislation, and what you're referring to as election sabotage or interference bills, which is a new breed of law that rather than just attacking voting rights, actually attacks the voting process, enables partisans to manipulate that process, or attacks the people that make that process work.

Brian Lehrer: You separate election sabotage bills from voter suppression bills, right?

Wendy Weiser: Yes. Voter suppression is certainly a form of election sabotage in that if you are excluding valid voters from the process, you are undermining the fairness and the integrity of the result. What we've seen in this new trend is an attack on the vote-counting process and the election administration process itself cutting out the middle man of the voters, and even putting partisans in a position where they can more easily rig the results.

Brian Lehrer: For example, your testimony to the January 6th Committee mentioned new laws in two states that allow partisan actors to remove election officials from their positions and replace them close to an election. Which two states were those?

Wendy Weiser: That was Georgia and Arizona. We've actually seen in Georgia a huge use of that law over the last year where local election officials have been removed, especially election officials serving African American communities across the state. Actually, heading into this election, even the county that serves Atlanta, Fulton County, Georgia, is still without a chief election official.

Brian Lehrer: Interesting. You testified to the January 6th Committee about candidates for election this year who want to politicize election administration. We've talked a lot about that on this show, but would you give us your take on it including naming names of states and candidates? If you do name names, is that different from what you were just describing with respect to Georgia?

Wendy Weiser: Another related trend that you alluded to early on is not only a dramatic increase in disinformation about the election, attempts to attack or cast out on the electoral system, an increase in more violent political rhetoric. We are seeing many, many candidates, more than half the states actually running affirmatively on a platform of election denialism, many of which are saying that would have positions of control over election administration should they be elected.

Many of them have expressly said that they might not certify election results if they don't like the results or are suggesting that they might manipulate the rules or the process to try to achieve their desired results. Again, cutting out the voters. That is an additional and new threat that's growing out of this movement in addition to casting doubt on and sowing a lot of lack of or undermining voter confidence in this election. There's a real concern that in a number of states heading into 2024, our elections will be run or overseen by people who are trying to undermine the integrity of the election process, who do not believe in electoral democracy.

Brian Lehrer: That's all potential or a lot of that is potential. Obviously, we'll be watching for those things on and after election day. Here in this early voting period, between the election administration laws and the election denial candidates that you've described, do you think there's a risk of big lifestyle election results denial actually working this time in some elections? Is there evidence of it working in any way already?

Wendy Weiser: We've seen a lot of damage to our elections as a result of the election denialism. We've seen attempts in-- Actually, there were 17 documented attempts of individuals, insiders in the election process either working with or despite election administrators to actually tamper with election equipment after the 2020 election. In a number of states, they actually had to de-certify and get new equipment. We have seen, and part of what you were describing before, the mobilization of vigilantes who are being driven by disinformation and mistrust in the election to engage in harassing and intimidating behavior, to also threaten and harass election workers nationwide.

That is actually causing huge damage to our election system, putting aside the damage it's doing to these key workers' lives. We have a real crisis of retention of election workers across America. We are seeing election officials leaving in droves. In some places like South Carolina, almost half of the local election leaders have left since the 2020 election because of this relentless attack. That is going to have a real impact on the election already. The vote suppression legislation that I alluded to earlier that has passed, we saw a huge spike in that legislation following the 2020 election across the country fueled by the same lies and disinformation about that election.

Going into the 2022 midterms, 20 states are going to have 33 new voting restrictions in place. It's going to be harder for voters in those 20 states to vote than it was in 2020 alone just from those laws. I think we're already seeing significant damage to the election process. Many of the candidates have expressly said, those that are peddling disinformation about the election process, that they might refuse to concede the race if they lose. I do expect that we'll see efforts to contest, challenge, undermine election outcomes.

I am confident or reasonably confident that those will not be successful this time around. That this is a dry run for 2024 and that our guardrails will hold firm, that the election officials and our courts will be a bulwark against efforts to sabotage election outcomes. That doesn't mean we won't see a lot of damage both to the confidence and to voter participation because of this, but I am more concerned that we're going to start to chip away at those guardrails so that it'll be a lot easier in 2024 and going forward to succeed at an attempt to sabotage an election.

Brian Lehrer: Listeners, if you're just joining us, our guest here five days before election day and in the middle of early voting week in 46 of the 50 states is Wendy Weiser, vice president for democracy at the Brennan Center. We can take your calls, especially if you've seen anything firsthand that you want to report, but you can also call and ask questions about voter intimidation, poll worker harassment, or poll worker shortages, wherever you may be. Candidates seeming to prepare not to accept election results if they lose. Also, the court rulings that are coming this week that are affecting how the elections are being run even as they're being run. We'll get to some of those with Wendy Weiser.

Your experiences, observations, or questions about any of these things, 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer. Anyone happen to be listening in Arizona today, in Pennsylvania today, in Wisconsin today, in Georgia today, any of the places where there's so much of this going on compared to some other places, 212-433-WNYC, at least that we know about, 212-433-9692, or tweet @BrianLehrer.

Wendy, let's look at the Arizona court ruling this week. As The New York Times describes it, a federal judge sharply curtailed the activities of an election monitoring group in the vicinity of ballot boxes, including taking photos or videos of voters openly carrying firearms, posting information about voters online, or spreading falsehoods about election laws. That from The New York Times. Why did it come to this kind of ruling in Arizona? Who are these groups and what have they been doing?

Wendy Weiser: The groups that were sued by representatives of voters, the League of Women Voters, was called Clean Elections USA, and its leader Melody Jennings. There were some other groups involved, but they actually stood down so they weren't in the lawsuit in the end after they received a copy of the complaint. We've seen a lot of different groups mobilize around the country often with the backing of the Republican Party to mobilize volunteers and vigilantes to serve as poll watchers, poll workers, and self-appointed police for ballot boxes, even self-appointed investigators going door to door.

This in many places has been getting out of hand, has been leading to a dramatic spike in intimidation and harassment of voters, of election workers. The Arizona situation was one very severe one where the ballot boxes-- It's a state where long before the pandemic for decades, the principal method of voting has been mail voting. The drop boxes are the polling places essentially in Arizona. There were armed vigilantes harassing people, frightening them, following them, threatening to publicly accuse them of wrongdoing. This is actually same kinds of tactics that were the central tactics that led to the passage of these federal anti-intimidation laws.

This is not a new kind of tactic, but they were being newly justified. The fact that it had to be enforced and the fact that some people were actually opposing saying that this doesn't actually constitute intimidation is a reflection of how people are trying to change the envelope, change the guardrails to actually take what are paradigmatic examples of harassment and intimidation and try to justify them and validate them. Fortunately, that didn't succeed. This was a really important decision as result. It's going to cut back on disinformation about what is allowed and not allowed, what is intimidation, is not intimidation. It's going to cut back on disinformation about who and how people can use drop boxes.

It's going to really deter other intimidation efforts across the country, so I do think it's very important that this decision came out now. It sends a really important message that will, I think, have a much more positive impact. I should note that despite the fact that we've seen a real spike in intimidation and harassment across the country, that listeners should know it is safe to vote, they should be able to vote with confidence.

The vast majority of Americans are not going to experience or see this. This kind of conduct is illegal, plain and simple. It violates civil laws, it violates criminal laws. Perpetrators can be fined, can be reined in. They could even go to jail. People should understand they can vote with confidence. If they see anything like this, they should report it. They should report it to local law enforcement, to their election officials. They should call 866-OUR-VOTE, the nonpartisan election protection hotline. People will be available to assist them. People should be able to vote with confidence.

Brian Lehrer: We're getting a caller from Arizona. Let's take Pat in Apache Junction, Arizona. Good morning from New York, Pat. Thanks so much for calling in. I know it's early out there.

Pat: Hi. Yes. It's actually warmer in New York today.

Brian Lehrer: That's a whole other story. Anyway, go ahead.

Pat: We're next to Mesa where the so-called, I believe they call themselves Clean Elections, something or other, people have been armed and photographing, maybe videotaping, and sometimes going up to people dropping their ballots in the drop-off box. A lot of people here are intimidated. This year, I was actually afraid. Usually, we can put up the red flag on our mailbox, we're all on the permanent early voting list here. We automatically get our ballots, we got them weeks ago, we filled them out. The next day what I decided to do was rather than leave them in the mailbox because I don't trust our neighbor who goes out with a gun every day to the mailbox is--

I was afraid of a dropbox because of the observers. I just go to a post office in another city and just drive up where you can in suburban post offices, and just shove the envelopes into the box. Other people we've talked about, we feel safe doing that so we could see that our ballot have been accepted.

Brian Lehrer: The story that you're telling us is making my eyes pop out of my head, making my head explode because really, you're an example in a way, even though you got your vote in the mail, of successful voter intimidation. You don't feel comfortable going to get the mailbox on your corner, you don't feel comfortable going to dropbox location.

Pat: It's our house mailbox. I know it's a federal offense to steal the mail, but I've got a neighbor who carries a gun when he goes to the mail, and our mailboxes are side by side.

Brian Lehrer: I understand.

Pat: I noticed him watching me as I got my yellow envelope. I don't feel safe.

Brian Lehrer: I hear you. In a way, that's even worse, you don't even feel safe putting a ballot in the mailbox in front of your own house. What are you thinking, Wendy, if you've listened to Pat's story?

Wendy Weiser: I have the same plot as you that regardless of the court ruling, this has already had a negative impact. Your caller is an example of the many people who now feel intimidated by this conduct. Even though it's now going to be stopped by court order, people are still feeling anxious so that negative impact still remains. I do think it is really critically important that there'll be a lot of publicity around this court ruling.

Nobody is going to be at dropboxes anymore lawfully intimidating people. This is no longer permissible. Everyone should be able to vote with confidence without having to confront armed surveillance, threats, or worries that their private information is going to be shared with the world. There is a court ruling that should be protecting Arizona voters and that can be enforced. People should vote with confidence now.

Brian Lehrer: Pat, thanks so much for calling in and sharing that story. That's really informative. Please call us again. I wonder if we should count that call as our climate story of the week, that it's warmer in New York today than it is in Apache Junction, Arizona. Maybe not. We're going to take a break and continue with Wendy Weiser from the Brennan Center. Linda, poll worker in Las Vegas, we see you. You'll be the next caller. Everyone stay with us. Brian Lehrer on WNYC.

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Brian Lehrer: Brian Lehrer on WNYC as we continue to look at things going on around the country here in this early voting week in 46 of the 50 states. Voter intimidation, poll worker harassment, candidates setting up to possibly not accept election results and legislatures that might back them up, court rulings about some or all of these things with Wendy Weiser, vice president for democracy at the Brennan Center for Justice, which works with students and faculty at the NYU Law School to advance justice for all and democracy, as they put it.

We're taking your phone calls, especially first-person reports, if you have any, 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer. Questions welcome too. Linda in Las Vegas, you're on WNYC. Thank you so much for calling in, Linda. Hello from New York.

Linda: It's a pleasure to be on. I am a native New Yorker, born and raised in the Bronx. Moved to Las Vegas March of 2020 right before the election in November. Coming in from New York moving to Las Vegas, I felt the great need to become a poll worker so I worked in the November 2020 election. At that time, it was the first time I ever worked as a poll worker. It felt already intimidating at that point. I am living in a neighborhood that the majority of my neighbors are Republicans. I never felt this concern working as an election worker. That happened in 2020 and it wasn't as drastic, I think, as everything unfolded in January after the election.

Now I'm much more concerned, quite frankly, working on Tuesday but that won't stop me. I'm still very much driving motivation here in my neighborhood with my little vote sign in front of my house. I think it's incredibly important, especially given the climate, given that we're a swing state. I just mentioned how the commercials now are just incredibly targeted. They're intimidating. I don't see it as a source of information, the commercials that I see from either party, but it's concerning. I'm working outside of a Home Depot parking lot. That's where my polling place will be. My husband is also very concerned for me, but I still think it's incredibly important for me to be there.

Brian Lehrer: It's incredible that we've come to this point where you have to commit an act of bravery and act of courage just to be a poll worker on election day. Do you have any sense from your colleagues there or your supervisors there that there might be a shortage of poll workers because people have been scared away from doing it?

Linda: Absolutely. There have been a number of people that have either dropped from training that they previously signed up for. There's been a real big push for us to recruit on our end any co-workers that they may feel comfortable that may be able to take the day from work if they are working, et cetera. There is also a drive for incentives, I think, on this end from a pay perspective so that we recruit more poll workers because of the intimidation here that we found. I think that it was a big deal back in November 2020 when we were going through COVID and just with the health concerns. Now we're shifting from not only COVID but more of a personal safety concern.

I recently went this weekend to an event outside of a library and already saw a number of signs noting the distance that anyone should be with regards to polling sites because the libraries here are polling sites. That was the first time I actually saw something like that. I didn't see that in November of 2020 but we are seeing this increase of awareness of a concern. Because of that, I think poll workers are feeling afraid of actually working on Tuesday.

Brian Lehrer: Linda, thank you for your commitment to our democracy and crazy that it's taking an act of courage for you to just go to work on that day. Thank you for calling and sharing your experience with everybody. Really, really instructive if disturbing. Linda in Las Vegas calling in. Good luck on Tuesday, Linda. There's another call for you to react to, Wendy Weiser.

Wendy Weiser: Sadly that the caller's experience is all too common across the country. We surveyed local election officials earlier this year, found that since 2020, about one in six of them had experienced threats and harassment while on the job. More than half of them were concerned for their safety and their colleagues' safety. That's a real understatement of actually the scope of the problem. There is some heartening news. There's been a real stepping up of state election officials, law enforcement, the Department of Justice, a recognition that this is a serious problem, and a focus on safety and monitoring the election process to protect election workers.

There is a lot more that needs to be done. Absolutely. This is a serious problem that we need to have more resources and more guardrails in place, but there's been a real mobilization to protect election workers and voters. Again, if people see any problems, in addition to calling local law enforcement and your local election officials, please do call 866-OUR-VOTE. There are lots of people who have your back who will make sure that the laws are enforced. This intimidation or harassment of election workers is just as illegal as the intimidation and harassment of voters.

Brian Lehrer: Wendy Weiser with us for a few more minutes. Vice president for democracy at the Brennan Center. She also testified before the January 6th Committee. Related to our conversation, one of the things you object to in your committee testimony, I read the whole transcript, it was really fascinating, I'm glad it was released, is the new Georgia voting law provision expanding the legal right of poll watchers to observe elections without constraints by election administrators. I wonder if you would explain that to us. How does that compare to what was happening illegally according to the court in Arizona that we talked about before?

Wendy Weiser: The harassment and intimidation will be just as illegal in Georgia as it is in Arizona, but we need multiple guardrails against that, especially in this heated environment that we're in. One of the most significant guardrails in most jurisdictions across the country are election officials. The election officials that run polling places, that run local elections actually have the authority to screen out poll watchers or poll workers who are disruptive. They can remove them, they can limit their activities, they can bring in law enforcement to enforce the laws against harassment and intimidation if they misbehave.

What Georgia did is actually removed those constraints and in fact, imposed criminal penalties on election officials for obstructing any poll watcher's ability to participate. That's going to send a chilling effect on local election officials who want to take actions to protect the safety of the polling place or vote-counting sites. We've seen similar efforts in other places like Texas, like Iowa, and elsewhere. This is a new tactic to try to empower partisan poll watchers to have fewer checks on their ability to harass and intimidate election workers.

Brian Lehrer: By the way, about Georgia, are the critiques and fears around the Georgia voting law with respect to voter suppression turning out to be overblown given the record turnout that I mentioned in the intro and that they covered on the BBC just before we went on that they're seeing in Georgia, and particularly in the Atlanta area where the Republican legislature may have wanted to make it harder to vote?

Wendy Weiser: Sadly, we've been analyzing the turnout data and analyzing it by different demographic breakdowns and are finding that there is still a persistent racial turnout gap in Georgia. It has grown since Georgia passed this new voting restriction so that actually Black voters are voting at much lower rates than white voters are in Georgia, as well as other voters of color in Georgia. This was both in the primary election. We're seeing the same disparities in the early vote figures. In fact, we're seeing the disparities even greatest in the methods of voting that were targeted by this new vote expression legislation.

It's very hard to glean the impact of the vote suppression law from overall turnout because there's so many factors that go into that, including the mobilization we heard from your earlier guest, including the very competitive and high-profile races across the board in Georgia. We are seeing this appears to be contributing to an increase in the racial turnout gap in Georgia.

Brian Lehrer: We've heard about incidents in Las Vegas and in Arizona from our two callers so far. How about one in Manhattan? Laura in Manhattan, you're on WNYC. Hello.

Laura: Hi, Brian. Thank you so much for having me. I'm a poll worker in Lower Manhattan. The other day we did have an incident with a gentleman who was upset because he saw some politicking signs for various candidates. It seems they were outside the line of 100 feet of the poll place but nevertheless--

Brian Lehrer: Not inside. In other words, they were too close to the polling place, which is-- [unintelligible 00:36:46]

Laura: No, they were too far away.

Brian Lehrer: They were far enough away.

Laura: As I understand it, they were far enough away. Anyway, he came into the poll site and started ranting and raving and saying that everyone there was a Democrat, which is very far from the case by the way. It's very well-represented on a number of different viewpoints. It's very safe. I don't want to make a big drama, but he did really create a scene. Luckily, we have an officer in every poll site in Manhattan. It's very safe. He did do a lot of yelling. Being a big disruptive scene, other officers had to respond and move him away. I heard that he came back the next day and measured the 100 feet and made more. It's not that he's in the wrong.

Brian Lehrer: More of a scene.

Laura: Exactly, but the way he did it was very, very aggressive, let's say, and it upset people.

Brian Lehrer: I'm curious, Laura, have you been a poll worker for years? If so, have you ever had an experience like this before?

Laura: I have multiple times. I don't think we've ever had another. I don't recall anything like this before. We were surprised that it was New York, but not that it happened.

Brian Lehrer: I hear you, Laura. Thank you very much. An indication of it can even happen here, which is not one of the hot-button states. Let me just touch on two other lawsuits before we run out of time. There was one in New York to stop voters without a specific medical or other reason from sending in their mail-in ballots. New York State, for those of you who don't know, is allowing fear of getting COVID at an indoor polling place to be sufficient reason this year as the last couple of years.

Republicans challenged that in court and the court threw that out this week, so the universal absentee balloting rights remain in place in New York for this election. Wendy, is that case unique, or does it also represent what you call election sabotage efforts in other states?

Wendy Weiser: This is not unique in that there is a new trend that was in part inspired by the efforts in 2020 by the Trump campaign and affiliated groups of candidates, mostly GOP candidates across, the country trying to file lawsuits to get ballots tossed out, to reduce access to voting, to empower poll watchers, but using the courts as a way of accomplishing these vote suppression, not just using the legislative process. In fact, this year, for the first time, the number of lawsuits being filed by those who are seeking to restrict access to voting using the courts has exceeded the number of lawsuits there to protect voting.

New York was just one example of those. We're seeing them across the country. This was not successful, but there are places where it will be. At the same time, I should add the courts have been much less hospitable to voting rights claims. The Supreme Court has dramatically rolled back legal protections for voting rights, and so we are not seeing court rulings this year pushing back on blocking these vote suppression laws like we have in every other year we've been tracking this because it has been made much harder to stop vote suppression before an election using the courts now.

Brian Lehrer: One more example from court and then we're out of time. Another court ruling this week, and if the New York one was protective of absentee ballots, this one was not, in Pennsylvania where a court has ruled that mail-in votes without correct dates will not be counted. Why did the dates on ballots become an issue?

Wendy Weiser: Actually, the jury is still out what's going to happen with these ballots though Pennsylvania voters should be very, very careful to make sure that they're putting their dates on and accurate dates. This is one of a variety of technical requirements on the absentee ballot process that actually aren't necessary for determining voter eligibility that have been used as a hurdle for casting or counting ballots. This is an interpretation of a Pennsylvania statute.

The reason why the jury is still out is election officials have been ordered not to count them. They have been ordered to segregate them for future consideration because the court was evenly divided on another question as to whether or not the federal Civil Rights Act of 1964 actually requires those ballots to be counted because it's a technical requirement that's not necessary for eligibility and for requirements. The 1964 Civil Rights Act said that you can't disenfranchise people for these non-material ministerial mistakes. It's unclear whether these ballots are going to end up counted. I expect if it's a close race that they will be relitigated, but voters would do well to be very careful to have correct dated ballots.

Brian Lehrer: Considering what's at stake in both the Senate race and the governor's race in Pennsylvania, every vote matters. You know what I don't understand about that one? Why does someone have to put a date on a mail-in vote at all? It's for the current election, we know that, so the ballot had to be sent by the government only recently. What's the difference if I date it November 1st or November 4th or don't date it at all if it's this election's ballot?

Wendy Weiser: It's a very good question. There is no really good public policy reason remaining for having that date on there. Maybe in the past, there might have been concerns with lack of post marking or mail delays that might have created questions as to whether or not ballots that came in late should be counted. There's really no real reason why that should be the case, but the court was interpreting the statute which have some arcane provisions strictly to require that to be on there to be counted.

Brian Lehrer: Wendy Weiser, vice president for democracy at the Brennan Center and a witness before the January 6th Committee this year. Wendy Weiser, we are wiser for your appearance here today. Thank you very much.

Wendy Weiser: Thank you for having me.

 

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