With the coronavirus pandemic showing no signs of abating before November 3rd, Democrats and civil-rights groups are increasingly concerned that a slew of new mail-in voters will overwhelm states, leading to delayed counts and large numbers of rejected ballots. They are particularly concerned about the role of the U.S. Postal Service. In May, the Republican-majority Postal Service Board of Governors appointed a new Postmaster General, a Trump campaign donor named Louis DeJoy, who made operational changes that appear to have led to slowed delivery. Meanwhile, the President has repeatedly attacked the reliability of mail-in ballots, falsely claiming that they facilitate voter fraud.
To talk about these issues, I recently spoke by phone with Vanita Gupta, the president and C.E.O. of the Leadership Conference on Civil and Human Rights, an advocacy group founded in 1950. Gupta previously served as the head of the Department of Justice’s Civil Rights Division, under President Obama. During our conversation, which has been edited for length and clarity, we discussed whether people should vote in person to alleviate pressure on the mail-in system, the biggest legal challenges that may arise after November 3rd, and whether social-media companies are doing enough to help insure a fair election. We subsequently spoke again, to discuss President Trump’s attempt to curtail data collection for the census.
What are the crucial things that states should be doing to prepare for holding an election amid a pandemic?
Several things. One is they need to create or implement vote-by-mail systems in their state that have prepaid postage and secure collection or drop-off. States that don’t already have this have to provide a reasonable window to accept ballots postmarked on Election Day that may arrive after. And this is especially important in light of the cuts to the United States Postal Service made by the Trump donor who’s running the agency.
States also need to expand early voting in order to have socially distanced, public-health-compliant polling places. They need to extend online voter registration, since so many of the government agencies that people typically register at are shuttered. And they need to be recruiting and training younger workers who are less vulnerable to COVID-19, and doing that on a pretty massive scale.
These are all the rule changes that need to happen at the state level, but then there’s this very significant voter-education effort that states need to be engaging in, too. It’s both affirmative and defensive. Affirmative because, in 2016, one in four voters voted by mail. There is going to be a pretty significant surge in those that are going to do this for the first time. And clarifying how voters can do this, what the deadlines are and all of that, is going to require a lot of voter education. But then they also have to be willing to fight disinformation. There’s going to be attacks on secretaries of state and local and state officials on November 3rd when they are unable to certify results because they need to count all of the absentee or mail-in ballots.
We obviously need to have mail-in voting so that people don’t put their health on the line to go to a polling place, but do you have concerns that a ton of mail-in voting is going to create problems?
There are more states than not that have experience with mail-in ballots. The primaries were really a test run for states, and the problems that we saw in Wisconsin, Georgia, and Pennsylvania can all be corrected, and secretaries of state have been taking steps. Many of them, not all, are trying to fix these problems and to be ready to make changes so that what we saw in the primary won’t happen in the general. And there are a lot of groups that are providing technical assistance. This is why the Leadership Conference has been urging Congress to supply the funds that are needed for states to make these changes and make them swiftly.
But am I concerned about the level of preparedness? Absolutely. There has to be funding to support it. And there has to be political will to make the changes. And everyone recognizes these are completely unprecedented circumstances, both because of the global pandemic but also in light of a President who is seeking to harm the democratic process.
You say all these things can be done, but has doing them become a partisan issue, with Republicans basically unwilling?
It is certainly partisan for the President. But what I have noticed from talking to secretaries of state in both parties is that, actually, outside of Washington, they take a lot of pride in how they run their elections, and they don’t want to oversee chaos. The look from Wisconsin—that was not a good look. What happened in Pennsylvania was not a good look. There’s also very robust litigation happening around the country that can force the changes. Sometimes litigation is actually welcomed because it creates the necessary political will in the state among those that appropriate funds to actually put the money behind those changes.
So there are various tactics being deployed. I would say partisanship is at a pitch in Washington, but outside there are many more Republican and Democratic election officials that are working hard to try to get this right. I’m not ignoring or being naïve about the fact that there are candidates who have pretty boldly stated that more voting is going to hurt their candidacy or hurt the Republican Party. They are relying on voter suppression as an electoral tactic. And we knew that we were going to be battling that long before COVID-19. COVID-19 has certainly made this much more challenging, but, in terms of the folks running their elections, there is greater bipartisan appetite to try to get through the elections, even when you’ve got representatives of the Republican Party really trying to weaponize COVID-19 for voter suppression and partisan gain.
What is your sense of how seriously the Biden campaign is taking issues of access to voting?
My impression is that the campaign is taking all of this seriously. It’s going to require a lot of infrastructure. Obviously, you’ve got [Democratic elections lawyer] Marc Elias and all the litigation that the Party is doing around the country to set up rules to facilitate voting. This is also going to be the first general election in decades that the R.N.C. has been out of a consent decree, and there are concerns about what could happen at the polling places, given what we saw in Portland and in other parts of the country, with the weaponization of law enforcement to instill fear. [In 2018, a federal judge allowed a consent decree against the Republican Party to expire; the decree, from 1982, prevented the Party from pursuing a range of vote-suppression strategies, including posting off-duty law-enforcement agents at polling places.]
There’s a lot of things that not only the campaign but frankly civil-rights advocates are gearing up for, and trying to do what we can to plan for, because it’s a big deal, and it’s very wonky, and people don’t realize that the lifting of the consent decree, combined with a President and an Attorney General who are willing every day to defy democratic norms, makes this all an incredibly challenging set of circumstances that people need to be prepared for.
What are the crucial legal issues, both prior to the election and once the votes are in, that people need to be thinking about?
I think there’s a set of legal issues leading up to the election. Are states actually doing what they can and should be doing to protect voters and not make voters have to choose between their safety and voting? Then there are concerns around a law-enforcement presence and the presence of private citizens for voter intimidation.
There are also concerns about the safety and availability of polling places. We did a report last year that showed systematic polling-place closures—over sixteen hundred polling places closed between 2012 and 2018 in jurisdictions that were previously covered by the Voting Rights Act. And now, with COVID-19, a lack of planning may mean fewer polling places. And there is concern about poll workers, who tend to be retirees in this country—we’ve got to be planning for all of that and insuring that there remains in-person voting. That’s why we need early voting to allow for social distancing to stop the lines. There’s going to be a lot of legal issues around making sure that polling places are open and that in-person voting is available.
And then, right after the vote, you have questions of how the absentee ballots are counted. Studies have shown that voters of color have a higher rate of rejection of absentee ballots. There’s going to be a lot of litigation around that, I suspect. And questions about which ballots are getting rejected. There will be a slew of legal issues present around that.
Can you explain to people why it’s so important to have younger poll workers?
The majority of poll workers in this country are retirees. They’re older people who are more vulnerable to the effects of COVID-19. You need poll workers to operate polling places, and, at a time when we’ve already seen systematic closures of polling places around the country, and particularly in Section 5 jurisdictions around the South, the greatest impact of not having polling places in the kind of numbers that you need falls predominantly on voters of color living in high-density urban areas.
And that’s why you saw the photos that you saw in Milwaukee during the primaries, when there were some really staggering statistics. Only five polling places were open in Milwaukee. But then you have the massively long lines in usually Black and brown neighborhoods, and that can be a real deterrent to voting, and a form of suppression.
So that’s the problem. That’s why we need to be recruiting younger poll workers, and not just recruiting them but making sure that there’s infrastructure in place so that state and local officials are able to train them and actually deploy them. It won’t be good enough to have lists of volunteers ready to be deployed. There is also the lead-up, because in a lot of places we’re pushing for early voting, and so you might have voting for twenty days prior to the actual election. So, for the duration of the early-voting period, that’s when you need younger poll workers.
When you say “we,” do you mean states, or are you saying that the Biden campaign should be putting out the message of their importance, or that advocacy organizations like yours should be putting out this message?
The states need to do it; the N.G.O. community is already doing it. There are a couple of efforts that exist. And we need to help thread the needle between those that are volunteering and making sure that there’s infrastructure. And the campaigns will be setting up their party poll watchers, as well.
What have you made of the Trump Administration’s attacks on the Post Office? Is there something that people in Congress or elsewhere should be thinking of doing if the Administration tries to seriously mess with the Post Office?
Yeah. I’m deeply alarmed by this. I think there is no question that the Trump Administration is attacking core democratic institutions and they are threatening the infrastructure that is required to hold a safe, secure, accessible, and fair election in November. So you have this attack on the United States Postal Service, in which the President puts in a donor to run the agency, who makes cuts, and the result is delays in the mail. You look at the President’s tweet, from Monday, where Nevada passed a slew of measures seeking to expand [mail-in] voting. He knows that the Postal Service is a crucial part of our democratic infrastructure, especially in this election amid a pandemic.
So the things that need to happen are that Congress needs to provide adequate funding to push back on any notion of the need to make these cuts. In the absence of that, there is no reason why states should not be changing the rules, if they haven’t already, to accept ballots that have been postmarked on Election Day. You can provide a reasonable window of fifteen days, twenty days after the election, because there could be these delays to the U.S. Postal Service. So many of these states still have not done that, and that is a really important fix.
If a person can wear a mask and is able to vote safely in person, given all the things we’ve talked about, would you suggest that they do that?
My suggestion is that, for voters who can, they should apply as soon as possible for a mail-in ballot or an absentee ballot, fill it out carefully, and then send it back or drop it off as early as possible so as to relieve pressure on polling places on the day of, when people for whom it is essential—like Native American voters who may not have U.S. postal addresses, or voters with disabilities who need assistance, or voters of color who, because of cultural reasons and historical reasons, may not trust the Postal Service—can vote. Keep in-person voting for those who consider it essential for whatever reason. If others engage in this process as early as possible, it will also, frankly, help secretaries of state to be able to count their votes earlier. There will be less of a surge, and it’ll reduce the delay in actually being able to announce the results after November 3rd.
I’ve also been doing a lot of advocacy with Mark Zuckerberg and Facebook around this, and pushing scenarios that Facebook and other social-media companies need to be prepared for, because they can play a very significant role, both in feeding disinformation before the election but then also after. It’s a really important part of voter education, and we have been really frustrated. There’s been a lot of very direct engagement that I’ve had with Mark Zuckerberg and Sheryl Sandberg about this, and so have other civil-rights groups.
Do you think they’re taking this seriously?
They did take some stuff seriously. They are recognizing the kind of reach that they have to provide accurate information through this voter center they have set up, and to do G.O.T.V. registration. What I am still really frustrated about is that they are not enforcing the voter-suppression policy that we worked on with them in 2018. They do not define voter suppression and identify it in the way that we do. And that is a huge problem when they are allowing posts to remain up that intentionally sow confusion and fear in voters, but they don’t recognize it as voter suppression in many instances. They lean back on the idea that it is the free expression of politicians.
And so what we are pushing them on pretty hard right now is to change course and educate themselves on what the real ramifications are of these kinds of posts, and pushing scenarios on them. “What happens if a politician says, on November 1st, ‘COVID is raging in Milwaukee and Detroit,’ when it actually isn’t? What role is Facebook going to play in all that?”
I wanted to ask you about the census, even though it won’t matter for this election. The Trump Administration is now saying that it is going to cut its census count short by a month. Why is this potentially such a problem?
It’s a problem because the census operation has been really hard hit by COVID-19. The Census Bureau and nonprofits like the Leadership Conference and countless others across the country are entering the door-knocking phase, which is how the bureau reaches the hardest-to-count communities, at a time when the response rates are at historic lows because of COVID-19. It makes this phase that much more essential to get an accurate count. And the folks remaining tend to be the most vulnerable communities: people of color, immigrants, young children, people experiencing homelessness. And so cutting this back is going to result in a very significant undercount of exactly the communities that Trump seems to want to erase.
What remedies are there for this, politically or legally?
Congress can fix this. In April, the bureau got the support of the Administration to ask Congress for an extension of the deadline for congressional apportionment and state redistricting data. The House passed it in the HEROES Act. In fact, the Commerce Secretary, Wilbur Ross, was the one who asked Congress to extend these deadlines, and now they have withdrawn support. But the Senate can insure that the next COVID package contains a statutory extension so that the bureau will have the time it needs to get as many people counted as possible and still be able to have accurate data.
The date of reference for the census is April 1st. The further you get from April 1st, the more corrupted the data can become, and the Census Bureau had established October 31st as the line that they didn’t want to go beyond. The motivation is that the President and the Administration realized that they would not have control over the apportionment data if they agreed to the full extension, so cutting this short would allow for the President to have the apportionment data before January 20th.
What’s the value of that?
It’s not a coincidence that, at the same time the Administration makes this move, they issue an executive memorandum to exclude undocumented immigrants from congressional apportionment. They want to change the base that is used to designate House districts. Frankly, it’s unconstitutional, because the Constitution says that every single person in this country needs to be counted. But that is their ultimate agenda.
Is your biggest concern that the data will be wrong, or that they will get access to it early?
The biggest concern is the former—that the data will be so inaccurate and that it will erase communities of color, especially because this is the phase they need to reach the hardest-to-count communities. What flows from that, when you have a massive undercount of these communities, achieves the same thing. He may know the executive memorandum is unconstitutional, but he may want to achieve the same thing by cutting short the count. There is no other reason not to go to October 31st by trying to count everyone.
Is there a legal remedy?
The fix for the period of time that the bureau has to count is in Congress’s hands. But, in terms of the challenge to the executive memorandum, there has already been litigation filed, and I have no doubt that it will be held unconstitutional. But the damage from the change of the deadline will go forth unless Congress acts.
Could they act with a new President in office?
The problem there is that, because the data gets less and less accurate the further you get from April 1st, if you get into January, it is now too old to be reliable, so the spectre of this is that you would have to literally redo the census nationally. It has never happened in our history. It has already been a $15.6 billion endeavor for taxpayers, and trying to contemplate a redo is almost unthinkable. But I guess it remains to be seen.