[music]

Brian Lehrer: It's the Brian Lehrer show on WNYC. Good morning, everyone. Now, at least in the short run here is the second most important thing that happened at the Supreme court last night.

Amy Coney Barrett: The oath that I have solemnly taken tonight means at its core that I will do my job without any fear or favor and that I will do so independently of both the political branches and of my own preferences.

Brian: Justice, Amy Coney Barrett being sworn in. Promising no politics or her personal preferences from the bench. Maybe Lindsay Graham though, chairman of the judiciary committee was more straightforward at Barrett's confirmation hearing about why she got the job.

Lindsay Graham: This hearing to me is an opportunity to not punch through a glass ceiling, but a reinforced concrete barrier around conservative women. You're going to shatter that barrier.

Brian: Amy Coney Barrett succeeds, Ruth Bader Ginsburg. It's a done deal. A 180 that will have decades of repercussions. Justice Barrett, by the way, is from South Bend, Indiana, surprisingly in the news this year for not one but two new national figures whose names suddenly everybody knows justice Barrett and Mayor Pete Buttigieg. Now later this hour, we will speak with Mayor Pete about justice Barrett, both of them being from South Bend and on the Buttigieg model for expanding the Supreme court, but de politicizing it, he says that he was running on in the presidential primary. Mayor Pete coming up.

Yes, believe it or not swearing in Amy Coney Barrett may have only been the second most important thing the Supreme court did last night at least in the short run. They also stopped Wisconsin from accepting absentee ballots after election day. Now that's different from their ruling in the Pennsylvania case this month that allowed Pennsylvania to accept absentee ballots for three more days after election day, as long as they're postmarked by election day. Why the difference? We'll explain and justice Barrett read up on your election law after 130 million or more than the Americans go to the polls, the deciding vote on who the next president is may be cast by you.

With me now Aziz Huq university of Chicago law professor, he used to clerk once upon a time for justice Ginsburg. Professor Huq, thanks so much for joining us. Welcome back to WNYC.

Aziz Huq: Good morning, Brian. Pleasure to be here.

Brian: Let's start on the Wisconsin case. Can you explain who wanted what from the Supreme court on this?

Aziz: The Democratic party of Wisconsin wanted to extend the deadline by which an absentee ballot mailed in for the Wisconsin election on November the third to be received. The Democrats wanted ballots that were postmarked, but not received by November the third to be counted. The Supreme court upheld a circuit court ruling that rejected the Democrats position. For your votes to count in the Wisconsin election this year, it needs to be received by the state by 8:00 PM on election day.

Brian: Now in this five to three opinion, chief justice Roberts laid out why he thinks they did the right thing by stopping Wisconsin from allowing absentee ballots to be counted if they arrive after election day. They did allow Pennsylvania just this month to do the exact same thing or to plan to do the exact same thing starting next week. Is it clear to you why the majority saw the two States doing the same thing differently?

Aziz: The difference between the Wisconsin and the Pennsylvania cases concerns which court ordered the extension off the ballot received deadline. In the Pennsylvania case, it was a state court, in the Wisconsin case it was a federal court. According to the chief justice and an opinion filed in the Wisconsin case last night, federal court, but not state courts are barred from changing or modifying the rules for elections in the immediate period prior to that election.

Brian: Now I've heard that other questions about which absentee ballots count could be among the first cases that justice Barrett hears. Do you have a sense yet of what kinds of challenges to absentee ballots might make their ways to the Supreme court?

Aziz: I think we should anticipate that if there is a close election in a state like Pennsylvania or Florida and election day votes go in favor of the president, we would expect some kind of litigation after election day challenging the process of counting absentee ballots, which are likely to tilt Democrats. We so that kind of tilt in the 2018 election in States like Arizona and in Florida.

There's a number of different grounds upon which the counting of absentee ballots might be challenged. For example, one can imagine a challenge based upon the manner in which that counted. One can imagine challenges to the sheer fact that certain kinds of ballots are counted. In Pennsylvania, for example, there's already been litigation around whether something called a secrecy envelope is required for a balance be counted. This is the so-called naked ballot problem. One can also imagine litigation over the requirements in a state like Wisconsin, that a witness sign the outside of an absentee ballot, and then write down their address.

Of course, there's the perennial challenge that occurs in the context of absentee ballots concerning voter signatures. Any, and all of these are fertile litigation grounds for a candidate or a party to challenge the counting of absentee ballots in the context of an election day break in the votes that favored them and which they feared they would lose as the absentee ballots were being counted.

Brian: Listeners, we do have time for a couple of questions for university of Chicago, professor Aziz Huq on this morning after. I guess it's really morning after the first swearing in of Amy Coney Barrett and morning of the second one as technically there are two different ones that take place, but as of today, justice Amy Coney Barrett, and this Wisconsin case in any of the election law issues that may be looming for her and the other justices as we head into, we don't know what after election day, next week, (646) 435 7280, (646) 435 7280 and then Pete Buttigieg, that other person from South Bend, who was suddenly famous this year will be on to join us about all of this as well.

Professor Huq, I understand that you've been helping to staff a Wisconsin voters hotline with early voting and absentee voting already taking place there. We talked about what the Supreme court had to say about Wisconsin as a matter of constitutional law last night. What are you seeing on the ground? What are you hearing?

Aziz: Well, what we're seeing across all of the, what you might call purple States, Wisconsin, Pennsylvania, North Carolina, where you have a mix of Democrats and Republicans in power and a state government is a highly complicated set of rules about when and how absentee ballots can be cast. To be sure, some of these rules have been eased in the context of the pandemic, but there is a degree of complexity in the manner in which absentee ballots are required to be completed that would defeat even many trained professionals often.

For example, in Wisconsin, a ballot that is a sent in, has to be not just by the voter, it also has to be witnessed, and the witness has to write down his or her name and address on the outside of a ballot envelop. Now, this is a real challenge, particularly for older voters who live alone, and particularly for those who because of the pandemic want to limit their exposure to other people. This is just one example of a whole series of barriers that have emerged as in particular Republican legislatures have imposed complicated and difficult to overcome barriers or requirements for casting absentee ballots.

Brian: Do you think, by the way, that as a matter of political analysis, if you do political analysis and not just legal analysis, that the Supreme court ruling last night about Wisconsin favors Republicans over Democrats?. It seems to be that Democrats are voting early in large numbers and Republicans are expected to vote later. Those who send in their ballots. votes at the last minute and get them postmarked on Election Day, which will turn out to be too late. Maybe that doesn't hurt the Democrats after all.

Aziz: That's a terrific question and it's hard to know the answer right now. What it depends upon is, if you take the pool of people who are going to cast early ballots, what's the partisan lean of those who've done so already, who've done so early in the early voting period? What's the partisan lean of those who are doing it later? I don't think we know that question. It seems to me entirely possible that the swell of earliest ballots was a deeper shade of blue than the last wave of early ballots that are being cast. It will only be revealed over time, whether what that Supreme Court did last night, in fact, is something that helps Republicans or something that is more of a wash.

Brian: Let’s take phone call. Jack, in Long Island City, you're on WNYC with University of Chicago law professor, Aziz Huq. Hi, Jack.

Jack: Hi. Thank you. Aziz, how are you? I've read these opinions in the Wisconsin case, and I haven't been able to figure out why Roberts wrote one way. Then there's a separate opinion, and then-

Brian: There's a separate concurring opinion?

Jack: Joined Gorsuch and then he wrote his own opinion. I can't tell what the importance of that difference would signify.

Brian: Have you looked at it at that granular level, professor, to have an answer to that question?

Aziz: I think the difference between the Robert and the Gorsuch opinion is one of emphasis rather than deep substance. Remember that Justice Gorsuch and Justice Cavanaugh would have rejected the effort to extend the Pennsylvania ballot counting rule, as well as the Wisconsin rule. The Roberts opinion has to explain why there's a difference between those two cases. Whereas, Justice Gorsuch’s opinion, can lean more heavily into the idea that court should not interfere prior to an election.

Of course, we'll see whether this idea, which is called the per cell principle, is carried over to the post-election context. There'd be a rich irony in a set of justices insisting on keeping the democratic process clear, right up until November the 3rd and then plunging in and perhaps doing something that was dispositive with respect to an election after November the 3rd.

Brian: Thank you for your call, Jack. People who have been alive that long or paying attention that long. Remember the Supreme Court getting the Bush versus Gore election, ultimately, in 2000. There was a joke during the 2004 election cycle that went, "It's going to be another close election, just like last time, it might be five to four." Would you have reason to believe that the current courts’ rulings on these technical ballot counting questions if they get to the court after Election Day, the kinds of questions you said a couple of minutes ago you're anticipating, that they would break down along which party’s president appointed the justice?

Aziz: Notwithstanding, what Justice Barrett said, it's very clear that both the Constitution and the contents of our statutory election laws are open to and indeed require moral and ethical judgments in their application. There's no getting away. There's no getting away from the moral commitments of a judge when they make decisions. The post-election decisions that I can imagine about absentee ballots, I can also imagine disputes about competing slights of electors being certified by a governor and a state legislature, are not ones where there is a clear and distinct legal answer. They are ones of necessity, in which the moral and pragmatic commitments of a judge are front and center, whether they admit it or not. The genius of the originalist possession of course, is to deny that very, very basic fact, but it doesn't make the fact go away.

Brian: Amy in Manhattan has a Wisconsin question. Amy, you’re on WNYC.

Amy: Hi, Brian. Hi professor Huq. I was wondering, are there requirements for who can be a witness to a voter signature, and what are they if there are?

Brian: Thank you. That's a good question. A lot of listeners in New York and New Jersey who may have sent in mail-in ballots recently, and didn't already know this might have been shocked to hear what you just said a few minutes ago about Wisconsin, that you have to actually have somebody sign as a witness to your absentee ballot. You mentioned the example of a lot of older people who might live alone and not have such an easy time finding a witness. What are the requirements to be a witness in that case?

Aziz: The requirements for casting absentee ballots vary by state to state. You should look at your Secretary of State's website, or seek advice from whatever party you're voting for about how to cast your vote in whatever state you're in. In Wisconsin, the requirement is that an absentee ballot be signed by a witness who is a citizen, who is at least 18 years of age. For example, you can have a family member sign as a witness, you can even have, if you can persuade them to do this, a postal worker sign as a witness. There's not a constraint upon the universe of witnesses above and beyond age and citizenship.

Brian: My producer Lisa Allison just told me, and I didn't know this, I'm sure you do, in Missouri and other states, absentee ballots have to be notarized. That's quite a barrier to casting a vote.

Aziz: Although many states have eased their absentee ballot requirements in the last six months as a consequence of the pandemic, there are still states, Missouri and Texas, is the other important state where this is so, that make it extremely difficult to cast an absentee ballot. Sometimes this is the legacy of older Jim Crow laws. Sometimes it is a consequence of the perception that a state is going to be highly contested. By shaving off the Democratic votes, in particular, through onerous registration and ballot casting rules, Republicans can preserve a majority under conditions of close competition. That's the case in Wisconsin, that's the case in Pennsylvania, that's been the case in North Carolina too.

Brian: Now, Trump tries in his speeches and interviews, as you know, to cast suspicion on large scale mail-in balloting as presenting opportunities for fraud. You just and we've just discussed some of the rules that really amount to opportunities that legislators have taken for, in effect, voter suppression. Challenging these things in court is different from saying things on the campaign trail or as a matter of analysis. Do you expect any broad-based claim, like a whole state’s absentee ballot count should be disqualified after the fact next week, because the system could have potentially led to fraud or anything like that that's huge, that's trying to attack a whole states results from the Trump campaign?

Aziz: We should be leery about making predictions. Back in 2000, if you had predicted that the Supreme Court would step in and stop the Florida recount on the grounds that on a county-by-county basis, the nature of the way in which ballots were being counted was different, people would have laughed at you before the fact. Counties have always used a different methods to count ballots. The idea that them doing so was an equal protection violation, which was one of the basis for the Supreme Court's intervention in the Bush V Gore case would have seemed ludicrous.

What the kind of challenges and whether you would see the blanket offensive against the project of counting absentee ballots on November the 4th on November the 5th, is extremely hard to predict. I would add that one of the real successes of the

[unintelligible 00:20:00] a legal movement in the past decade has been to make it possible for movement lawyers to take arguments that initially would have seemed absurd to all legal professionals and to render them obvious. This was their strategy used in the challenge to the Affordable Care Act. This was what happened in Florida in the context of the presidential election, and I see no reason why we wouldn't see the same attempted after November the 3rd.

Brian: That's a very nice way of saying, be concerned, be very concerned with these justices. Anything, no matter how implausible it might seem, is possible. We will hear from Pete Buttigieg in just a minute. Our next guest who's from South Bend, just like Amy Coney Barrett. He's got some ideas for ways to expand the court if Biden is elected, while also de-politizing it. Biden says he'll appoint a commission to study the possibilities if he's elected. In our last minute, what do you think the rage of those possibilities might be?

Aziz: I think that the priority with the Supreme Court should be limiting the court's authority to intervene in high profile public policy matters. Which, by the end of the day, can only be settled by an appeal to moral for ethical ground. I think, though, the Supreme Court has far too large a role in questions of public policy, such as environmental law, such as health care law. Expanding the Supreme Court does not fix that problem.

Brian: University of Chicago law professor, Aziz Huq. Thank you so much for joining us.

Aziz: Thank you so much for having me, Brian.

Brian: Brian Lehrer on WNYC. Pete Buttigieg, next.

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.