Announcer: Listener-supported WNYC Studios. [music]

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone, and don't just call it Election Day anymore. According to an estimate in the Washington Post, 15 million Americans have already voted here on October 15. In Georgia this week says the Post, people waited as long as 11 hours to cast their ballots on the first day of early voting. In North Carolina, 20% of the mail-in ballots so far are from people who didn't vote in 2016. That's 100,000 people who sat the last one out, and the Post says those who have already voted nationwide include disproportionate numbers of Black voters and women, groups known to favor Joe Biden over Donald Trump. Tantalizingly, the Washington Post article says, the early voting numbers are so big that more results could be known on election night than previously thought. I'll note that President Trump will hold a rally in Georgia tomorrow, where the usual red and blue map suggest it shouldn't be necessary. Here's a competing reality, the New York Times had an article yesterday called Biden Is Not Out of The Woods Yet. One of the stats that cites is this, "Since last week, the share of white, non-college, over 30 registrations in the battleground states has increased by 10 points compared to September 2016, and the democratic margin dropped 10 points." In other words, likely new Trump voters are registering to vote in swing states at a faster pace than 2016 compared with likely Democrats. The Democrats are voting early, Republicans are expected to surge in the polls late. One more thing before we bring in our guest, the rules for all this voting are still being fought over in a number of key states like the battle this week, maybe you heard this, over how many ballot dropboxes could be placed around the Houston area. The city wanted many in that county of, I think, it's 5 million people. Republican Governor Greg Abbott, however, wanted only one dropbox location for the entire county, and so far, the courts have sided with him. With me now, election law expert, Franita Tolson, a University of Southern California law professor, CNN election law analyst, and according to her Twitter handle, "Queen of obscure constitutional text." Professor Tolson, thanks for getting up early, California time, and coming on with us. Welcome to WNYC.

Professor Franita Tolson: Very happy to be here, Brian. Thanks for having me.

Brian: The way things are going, we may need to parse some of that obscure constitutional text. [chuckles] It's good that we have the queen. Can I start with that voter turnout in Georgia story, up to 11 hour waiting times? Now, I can look at that as, "Wow, that's enthusiasm," or I can look at that as, "Wow, that's disenfranchisement." How do you look at it?

Professor Tolson: Well, I'm looking at it as disenfranchisement, but I look at it as disenfranchisement with the caveat that we have to take the broader context into consideration. Voters are excited, they're very enthusiastic, this is a high-interest election, but at the same time, 11 hours to wait to vote is a long time. If we're going to hold ourselves out as a democracy, we have to do better. In terms of broader context, though, we have to think about this in terms of the 2013 Shelby County decision in which the Supreme Court invalidated a portion of the Voting Rights Act, which would have required states like Georgia and Texas to pre-clear any changes to their voting laws with the federal government before those changes could go into effect. With that provision invalidated, Georgia, in particular, took steps in order to make voting harder. Since 2013, jurisdictions formerly covered by the Voting Rights Act have reduced polling places 20% more than jurisdictions that are not covered. When you have fewer polling places, of course, it's harder to vote. When you have a very restrictive voter ID law, of course, it's harder to vote. As we see with a lot of the pending litigation, the fact that we're still litigating a lot of these rules, states are trying to make it harder to vote, so that does contribute in part to the longer lines.

Brian: Yes, and there should always be enough capacity, obviously, that voters should never have to wait that long because think of all the people who couldn't do or wouldn't stand in line for 11 hours, how many voters get lost in that process? I guess that's Governor Brian Camp's Georgia with his famous past efforts to limit voting in his election against Stacey Abrams. How much of that 11 hour wait time do you think is by design? Is there a way to measure it?

Professor Tolson: It's really difficult because you can't get back votes that were never cast. Those individuals who left because they had childcare responsibilities, or go to work, or any of the things that we do from day-to-day, you can't count those voters. I do think that, because it's hard to quantify it, it contributes to our reluctance to think about it in disenfranchisement terms. We should because if the right to vote is fundamental, these individuals should be able to cast a ballot and not have to wait 11 hours to vote. Because it's hard to put a number on it, I do think it affects our thinking about this in terms of the harm.

Brian: One more thing about Georgia, a traditionally red state in presidential elections, President Trump, as I mentioned, will hold a rally there tomorrow. He held one yesterday in Iowa, which he won pretty easily in 2016. I don't know if you do any political analysis in addition to election legal analysis, but does it tell you anything that he's devoting time and resources to states like those?

Professor Tolson: Yes, it tells me that he's scared. [chuckles] I don't know if that's election analysis, but to hold a rally in a traditionally real estate, there's a lot about his team's assessment about the state of the race. After 2016, I don't make any predictions, but I will say that it is shocking to me that he has to campaign in traditionally red areas. Now, Georgia had been trending towards being more of a purple state, I would say, since 2016 just in the sense of the 2018 election had very high turnout. It was a really close governor's race, but for Georgia to be in play to the extent that it is now where recent polls show that either Joe Biden is slightly ahead or is tied, that's very surprising. I think holding a rally there reflects his team's assessment that Georgia could potentially go the other way this election cycle, which is shocking.

Brian: Now, listeners, help us report this story, you're invited. If you are in any swing state right now or if you are hearing from your friends or family members or colleagues in any swing state, what's happening with early voting, or election law battles that you think the rest of us would be interested in hearing. Help us report this story or ask election law expert Franita Tolson from USC a question, 646-435-7280, 646-435-7280. Anyone from Georgia, or with ties to Georgia out there right now? Did you yourself wait hours in line to cast a vote on day one of early voting this week? Do you feel like you're in a swing state now? Anyone listening with ties to Georgia? 646-435-7280. Anyone listening with ties to Texas? Not supposed to be a swing state, the poll show maybe it is. Iowa? Not supposed to be a swing state, the poll show maybe it is. Michigan, Wisconsin, Pennsylvania, the swing states we know, help us report this story, 646-435-7280, 646-435-7280, or you can tweet @BrianLehrer. Professor Tolson, for you as an election law person, we may well have vote-counting legal battles ahead after Election Day, and we'll get to that, but we also have wrangling even now over how people can cast votes in states where voting is underway. Can you explain the Texas dropbox battle? Who wants what, and why is it unclear who gets to decide?

Professor Tolson: The governor in Texas wants to have one dropbox per county, but the problem is that-- First of all, Texas is a huge state, but there are counties that have millions of people. For example, Harris County, where Houston is located, is the size of Rhode Island. The idea of having one dropbox in a county that size is just really, really crazy and really inconvenient for voters. Up to this point, state courts have sided with the governor and finding that he has the authority to order one dropbox per county even though election officials would prefer more. The controversy over the drop boxes is alarming, but it does have to be viewed in the broader context of the efforts by the governor, in particular, to make voting more difficult in Texas ever since COVID hit. Texas is also one of five states in which concern over catch in COVID-19 is not an excuse to vote absentee, which could also explain why there's such huge in-person turnout in Texas in the first days of early voting, but this one dropbox per county also makes it difficult and limits the ability of voters to choose how they want to cast their ballots. It's a lot going on there, but it definitely has been steps taken to make voting more difficult over a number of months, and it's not just about the drop boxes.

Brian: One of the things you said there, what an act of voter suppression that strikes me as that Texas is one of the few states where fear over catching COVID-19 is not a legitimate reason to request an absentee ballot. There's that. On the limiting the number of drop boxes in big counties, how could a judge not see that as a partisan attempt at making it harder for people in dense cities to vote?

Professor Tolson: It really is part of this pattern that we're seeing in the courts about putting the burden on voters to cast a ballot, as opposed to putting the burden on the state to make it easier for people to cast ballots. A lot of this is about deserving this. If you care about your right to voting, you want to exercise it, then, you'll do what you need to do in order to cast your ballot. That means that you deserve to have it because you're willing to do whatever it takes, which is not how we typically think about rights. When we say that something is a fundamental right, then, we place the burden on the state not to infringe that right. We view the state as having some affirmative obligation in order to ensure the enjoyment of rights, but we don't treat the right to vote that way. It's very unusual, but honestly, the US Supreme Court has set the stage for all of this. In a decision decided in April, called RNC vs. DNC, which stemmed from the Wisconsin primary where there was a lot of back and forth between the governor and the state legislature about canceling the primary, but ultimately, the Supreme Court made it difficult for the lower court to adopt a remedy that will make it easier for people to vote absentee. The end result was that a lot of people had to turn out and vote in person at the, I want to say the height of the pandemic, but we're still at the height of it, but this was the early days of the pandemic where we still in shut down mode, and people have to turn out in person to vote. A huge percentage of those individuals have requested absentee ballots but not receive them. The Supreme Court seemed impervious to the fact that some of these voters, through no fault of their own, had not received their absentee ballots, but also, in addition, we're in the middle of a global pandemic. You would think that lower courts should have maximum flexibility to ensure that voters could cast ballots, but that was the exact opposite of the approach that the Supreme Court took. Of course, decisions that have been decided since then, you have other courts who are in the same mind frame of saying, "Look, the onus is on the voter." If you want to cast your ballot in, you need to do what you need to do to cast the ballot, and we're going to defer to the state and what the state thinks is appropriate in this circumstances, which is just a really unusual way to approach something that we consider a fundamental right.

Brian: Let's take a phone call from Samantha in Rosewell, Georgia, in the Atlanta area. Samantha, you are on WNYC. Hello from New York.

Samantha: Hi. Good morning, Brian. I'm so excited to be on your show, and it's Roswell, Roswell, Georgia.

Brian: Sorry about that.

Samantha: No worries. Roswell is a suburb in North Atlanta. It's a very white, middle-class, well-to-do area. I went to high school down here. I moved to Brooklyn 20 years ago and just moved back two years ago. I was expecting what I left, which was a very conservative, very Republican stronghold, but I've moved into a neighborhood that has pleasantly surprised me. There are Black Lives Matter signs up next to Trump signs [chuckles] in the yards across the way, but the complexion is changing. Today, I'm planning on going to vote. I had planned on voting on Monday out at this little library, out in Milton, Georgia, which is very small. There's usually no wait. Before I left the house on Monday, I heard that the lines were two, three, four hours long already before the doors had opened. That never happens. There are not usually lines in this part, a very wealthy white, well-to-do Georgia.

Brian: What did they tell you?

Samantha: Well, a lot of my friends have told me they're Biden supporters, and for years, with Jon Ossoff and the governor's race, they've been grumbling and this underground, very blue-leaning change of wine-drinking soccer moms who want to go out and vote and have been, and it's changing. I will say that my father who is, I do believe a Trumper, we don't talk too much about it, it's bad for family relations, but he also went on Monday. He's 77 years old, and he stood in line for at least three or four hours, but I'm pretty sure he voted Republican. I'm not sure who's coming out, but I know that there are a lot more blue-leaning people here than have been factored in in the past, and they're fired up, and I'm stoked.

Brian: Samantha, so interesting. Thank you for that report from Roswell in the suburbs of Atlanta. Let's go to Nandini in Fort Worth, Texas. Nandini, am I saying your name right? You're on WNYC. Hello from New York.

Nandini: Hello. Hello. It's Nandini, so yes, very close. Thank you. I am a teacher. I'm actually in my classroom right now. There's no students here. They come back on Monday. I am planning to go early vote, and the lines for that are already up to four hours long. I have students, I teach juniors and seniors, and my kids who would like to vote are essential workers as are their parents. They don't have the capacity to take four hours off from work in order to go vote. Regardless of their political affiliation, because I do have students of color who do support Trump, they simply don't have the time. Their parents are fighting to not get COVID. I have students who have lost multiple family members to COVID. As your guest very wisely pointed out, this is a situation facilitated by Chief Justice John Roberts because, apparently, in his fantasy land, there's no more racism, so the Voting Rights Act can just sail out the window. When you, in fact, live in a country that doesn't think that there are preventions to being able to vote normally, like in any democracy, we actually live in an oligarchy that does not want people of color to vote, that does not want to turn the election day into a holiday. It's discouraging because my kids are already want to not care. Apathy is the great enemy of any teenager and adult in their life. It is difficult for them to see, "Well, what's the point? This country doesn't even want to make it easy for me to vote so why would I vote?"

Brian: That's such a discouraging report from the field from a teacher, Nandini. Can I ask you a follow-up on one of the things you said? You said you have students of color, in some cases, who support Trump. For them, what kinds of backgrounds, and why from their point of view?

Nandini: It is largely Hispanic students. Obviously, it's very few, I'd say a handful across all my classes, but the reason they support him is because the student was born in America. Even if their parents were migrants, they look down on their community members who have had trouble immigrating, and they have been impacted by ICE and CBP, and they have dealt with the violence of trying to just live and exist in America. If you recall Trump's remarks in 2016 when he announced he was running for president, he said that he believes Mexicans are drug dealers and rapists. My students who do support him, they think that too. It's funny because, last year, when I first found out that I had students who support Trump, I asked them, "Really?" I was trying to confirm it because I couldn't believe what I was hearing. They said, "Yes. I have the hat. My dad and I went to his rallies and everything." I asked, "Do you talk about this with your friends? Do your friends know you support Trump?" He was like, "No, no, no. I haven't told anybody this." As a teacher, it's my responsibility to never make anyone feel like their point of view is invalid or that they should be jumped on by their classmates, but I think that is the source of Hispanic students who do find themselves allied to Trump.

Brian: It's so interesting. Nandini, thank you so much for calling us. We really appreciate it. Please call us again. As we continue with Franita Tolson, University of Southern California law professor and CNN election law analyst, anything you're thinking as we hear from those first two callers, Professor Tolson?

Professor Tolson: I was really interested to hear about the young lady who's a teacher and her students who are people of color who support Trump and their rationale for doing so. It actually makes a lot of sense to me because, in recent weeks, you have the Trump campaign being more aggressive about trying to go after Black men. I think a lot of that has to do with the fact that sometimes, within minority groups, you have a subset that looks down on others because they have a failure to "take personal responsibility" or a failure to pull yourself up by your own bootstraps, and they do view others within the group through the same lens as a traditional Trump supporter. I wasn't totally surprised, but it was really interesting to hear a personalized anecdote about why someone who is Hispanic would support someone who has demonized Hispanics, and it's because they don't necessarily see themselves as part of the group being demonized. This is a very, very interesting phone call.

Brian: Nandini mentioned Chief Justice Roberts, believing that voting discrimination doesn't exist in America anymore, and that's not exactly what he said, even though he voted to overturn most of the Voting Rights Act. This, as I'm sure you know, came up in a very interesting way in the Amy Coney Barrett confirmation hearings this week. I want to play a couple of short clips of exchanges in the hearing yesterday. First, Senator Kamala Harris asked this about coronavirus.

Senator Kamala Harris: Do you accept that COVID-19 is infectious?

Amy Coney Barrett: I think, yes, I do accept that COVID-19 is infectious. That's something of which I feel like we could say, you take judicial notice of, it's an obvious fact, yes.

Brian: "An obvious fact," said Judge Barrett, simple answer, coronavirus is contagious, but when Harris asked if she agreed with Chief justice Roberts that racial discrimination in voting still exists, and that's how Kamala Harris quoted Chief Justice Roberts saying that, "Racial discrimination in voting does still exist." The judge gave a technical legal analysis so Senator Harris followed up like this.

Senator Kamala Harris: Judge Barrett, the question, however, is, do you agree with Chief Justice Roberts who said, "Voting discrimination still exist. No one doubts that?" Do you agree with that statement?

Amy Coney Barrett: Senator Harris, I will not comment on what any justice said, an opinion, whether an opinion is right or wrong, or endorse that proposition.

Brian: No simple answer on whether voting discrimination exists. I'm curious if you heard, or if you did, what you thought of that exchange.

Professor Tolson: I find it very disheartening. A lot of this goes back to the 1987 confirmation hearing of Robert Bork, who was not able to become a Supreme Court justice, but I do think that the experience that he had, which was very contentious and very controversial, has led subsequent nominees to be less forthcoming about their views. That being said, I would hope that there are certain things that, once you take judicial notice of, just like COVID-19 and it's contagiousness, the fact that racial discrimination is still a thing in America is something that a judge who's going up for an appointment to the highest court in the land should be able to take judicial notice of, particularly, since her conservative colleagues have also recognized explicitly in the Shelby County opinion, in particular, that racial discrimination in voting still exists. Also, climate change, she approached that as something that was policy question as opposed to an objective fact. As somebody who lives in California and has watched the state burned and people being forced from their homes because of fires, it's really, really unfortunate that confirmation process has devolved to a point where things that should be objectively true are not treated as such.

Brian: Let's take another phone call from Georgia, and far from Atlanta this time. It's Mariella in Savannah, Georgia. Mariella, you're on WNYC. Hello from New York.

Mariella: Hey, good morning, Brian. I used to live in New York 25 years ago.

Brian: Glad you're on. Glad you're still listening.

Mariella: I still listen to you.

Brian: Glad you are still listening. I'm so happy.

Mariella: Me too.

Brian: What's happening?

Mariella: I have a few concerns, but the last concern, it's just something that I have seen with my own eyes. I live on the outskirts of an African-American neighborhood, which is where my polling place is, at a community center called WW Law Center. I've noticed the last four weeks or so, I've seen quite a few white, young men driving around, almost like cruising the Black neighborhood in their big pickup trucks and their Trump flags and their American flags. I don't know if they're here vacationing and got lost because we're close to a highway that's an adjacent to the suburbs, or if it's that they're cruising the areas where the polling place is. I don't know. It's just something I've been noticing. Just so you'll know, I am out in that particular neighborhood every night for about two hours a night because I volunteer with animal rescue, and that's the reason that I have known.

Brian: So you're seeing--

Mariella: Yes.

Brian: Yes, it's one of the things that-- I mean, this sounds consistent with one of the things that President Trump has been asking his supporters to do, which is to become "poll watchers". People fear that what that's going to mean is a lot of, even sometimes, armed Trump supporters showing up in numbers at polling places in largely people of color areas as acts of unofficial voter intimidation. That's interesting that you are saying it.

Mariella: Now, Brian, I do have-- Yes. I do have one question, I don't know if any of your panelists could answer it. In this particular recreation centers, WW Law, there's a lot of elderly, African-American voters, people that look like they're 75, 80, 90-years-old voting, what can we do in that neighborhood to make sure that they get an easy pass through those doors because they don't tend to vote in early voting because it takes driving to the other place?

Brian: I don't know if-- Let me get an answer for you Mariella. I'm so glad you're still listening such a long time after moving out of New York. I'm really grateful. Let's see if we can get you a good answer from Professor Tolson. I don't know if as an election law expert, you can answer her direct question, maybe it's as simple as, it sounds like she's a Democrat, that she should get in touch with the local Democratic Party, which probably is organizing assistance for things like rides to the polls for elderly voters.

Professor Tolson: Yes, I do think that getting in touch with local organizations as a way to address concerns that- if there are any concerns that a certain- actually, any individuals are having difficulty casting a ballot is especially since, as the caller mentioned, she's concerned about people driving around the neighborhood, possibly trying to intimidate people. One possibility is contacting local civil rights organizations. Another possibility is calling 866-OUR-VOTE and reporting any trouble at the polls, difficulties of that sort. I also want to mention just as regular, everyday-Americans, voters, if someone's 85, 90 years old and they're in line and the line is three hours, let them go ahead of you.

Briah: Duh. [laughter]

Professor Tolson: Let's lookout for the generation who fought for voting rights. Let them go ahead of you.

Brian: I know we only have a few minutes left. I saw you quoted, in an article, about what might happen in court after Election Day. You said that the fact that there is so much voting by mail will probably mean litigation over whether absentee ballots have been rightly or wrongly rejected. Are there certain states or types of specific claims that you think it's most likely will matter?

Professor Tolson: Pennsylvania is one state that keeps coming up in these conversations, in part, because the Trump campaign has expended a tremendous amount of resources in Pennsylvania challenging a number of voting restrictions and regulations. I should just say voting regulations. They want to make it more restrictive. I do think that Pennsylvania went for Trump in 2016. I think Biden is pulling ahead in Pennsylvania this time around. In addition to being a swing state, it has become ground zero for many of the fights that we've been having over COVID-19 and voting in the middle of a global pandemic, these fights that we've been having its March. There was litigation in Pennsylvania about the so-called naked ballots, where absentee ballot has to go into a secrecy envelope and then into another envelope prior to being mailed but, of course, some voters don't realize that they have to use the secrecy envelope, and those ballots end up being discarded. Also, issues with postmarks. I think that this is an issue that you'll see in states beyond Pennsylvania, in particular, because in some litigation, the request by Democrats in the state is that as long as it's postmarked by Election Day, that they should extend the time of receipt. In Pennsylvania, the Pennsylvania Supreme Court said that as long as this received within three days of Election Day, the ballot should be counted. Now, of course, there's controversy coming from the Pennsylvania Supreme Court decision, in part, because the decision said that even if a ballot is not postmarked, election officials should assume that it was postmarked by Election Day, which I think is a decision that the Supreme Court might actually reverse. We'll see. I said I'm not making any predictions, but just based off of the state's- I'm sorry, the Supreme Court's posture in the RNC vs. DNC decision that I mentioned earlier, I don't think they'll look upon that favorably. I do think Pennsylvania is probably the best example of what we might see after election day, unless, it's just a huge windfall in one way or the other. Biden wins by 10 points or 8 points or 5 points, or Trump wins, and it's a decisive win. Unless that happens--

Brian: And then those post-Election Day absentee ballot counting will matter in that scenario, yes.

Professor Tolson: Exactly, yes. Once that happens, though, I just- because in part of it and a huge part of it, and this is something that's true in most states, Pennsylvania does not have the infrastructure to accommodate the volume. We are in an unprecedented moment where a lot of people will be voting by mail. It's not that vote-by-mail is new. This is something that has existed since the Civil War. We have held elections in times of crisis, but just in a sense in our lifetime, this number of people casting a ballot by mail is unprecedented. It remains to be seen whether or not Pennsylvania can effectively deal with the volume.

Brian: All right, folks, fasten your seat belts for the next few weeks. We don't know how many few weeks, and obviously, we will keep covering this day by day. We thank election law expert, Franita Tolson, a University of Southern California law professor, CNN election law analyst, and according to her Twitter handle, "Queen of obscure constitutional text," some of which we got the benefit of today. Professor, thank you so much.

Professor Tolson: Thank you.

Copyright © 2020 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.