Jason and Adam on Youth Voting Rights, and More

This podcast is part of the Democracy group.

Welcome to Another Way, the podcast produced by Equal Citizens, a nonpartisan pro democracy organization founded by Lawrence Lessig. This is Adam Icahn, the organization's campaigns manager. Before we begin the episode, as always, please consider supporting us on Patreon. To sign up, go to patreon.com/citizens that's P A T R E o-n.com/citizens okay, now to the episode. Today I talk with my fellow Another Way co host, Equal Citizens Executive Director Jason Harrow. We've been working tirelessly on a multitude of different projects to fix our democracy, and throughout this episode we give you updates about those projects and further explain why they are so relevant in the context of the 2020 election. In particular, there are some big updates I want to give you on our lawsuit challenging age discrimination in voting in Alaska and our equal Votes cases challenging winner take all allocation of electoral votes. We also introduce a new project, Fix the College, that we hope can bolster the movement to reform the way we elect the president. But this episode isn't just about Equal Citizens. For in addition to these project updates, I also picked Jason's brain about the role of litigation in the 2020 election, which lawsuits he's keeping an eye on, and whether he is worried about post election lawsuits. We likewise attempt to talk through some of the ways Democratic legitimacy might be threatened this year, a topic on the minds of many right now. With that, I hope you enjoy the interview.

Hey Jason, how's it going?

Hey Adam. It's great to talk to you. It's been a while since we've done this format and had a conversation about what's going on. We've had so many cool interviews with outsiders lately, but it's good to keep it in Equal Citizens family here on this one.

Yeah, and I'm really excited for this conversation, Jason, because I think that there's a lot about what what we've been doing at Equal Citizens that we haven't really given our listeners an update about. And so this podcast is really going to be getting into some of the progress that we've made as an organization. And we're also going to be talking a little bit about the 2020 election and some of the litigation going on. So this is going to be a good conversation, Jason, and let's jump right in. So you recorded a podcast in the past about age discrimination in voting, specifically around the 26th Amendment. So let's give our listeners a little bit of a refresh if you can. Jason, what is the 26th amendment, why is it so important right now? And what are the cases across the country being litigated on 26th amendment grounds?

Yeah, so the 26th amendment is actually the most recent substantive rights conferring amendment passed. It was passed in 1971 and most people think of it as an amendment that was passed to lower the voting age to 18. Because for most of American history and up through the 50s and 60s, including the Vietnam War era, you could be 18 to go to the military. Eighteen was the age of becoming an adult legally in America, and yet you couldn't vote in many places. And so the 26th amendment standardized that lowered the voting age to 18 for all states and all elections. And it was actually the fastest pass amendment in history. As many listeners may know. Congress proposes amendments and then the states ratify. It was ratified in less than a year. So lots of consensus that 18, 19, 20 year olds should be able to vote. But the language did more, and indeed it did more on purpose. What it did was it said that the right to vote of citizens over 18 cannot be, quote, denied or abridged on account of age. And no one in the intervening 50 years has really given a lot of meaning to those words because instantly after the amendment was enacted, every state that didn't have 18 year old voting statute lowered their voting age. And then there have been a few scattered pieces of litigation around student voting and the like, but. But nothing really getting to this heart of the matter, which is, wait a second, this amendment didn't just lower the voting age to 18, it also said that the right to vote, whatever that means, can't be denied or abridged on any kind of age discriminatory basis. So that's the background of the amendment. Adam, I imagine that the next question is why in the world are we talking about this amendment in 20, 20, 50 years later? But I'll let you ask the questions.

No, that's exactly right. The next part of the question is what are the cases being litigated around the country on the 26th Amendment grounds? Because I think that again, our listeners of this podcast know they've already listened hopefully to our last interview, but again, a lot of cases have been litigated on the 26th Amendment grounds for the first time. Well, as you said, in a very long time and there's been progress. So give our listeners an update about where some of these cases are right now. What's the progress, good or bad?

Yeah, so in the intervening 50 years, like I said, once these states lowered the voting age to 18. The fights on 26th amendment cases were mostly related to student voting because states and localities did take actions that made it more difficult for students to vote than some other people. And I do want to say that even though there's been an uptick, there were people, people that we work with, like at the Andrew Goodman foundation and their fantastic Voting Rights Council, Yael Bromberg, who have been out there making sure that states treat students equally, too. But the difficulty of those cases is that the word student doesn't appear in the amendment. The word age does. And so those plaintiffs were using students as a proxy for age because we all know that the vast majority of students are relatively young and very few are, for instance, senior citizens. Well, 2020 has given us the opposite situation where we've looked around at this incredible massive increase in voting by mail and massive increase in outreach efforts, combined with this sort of early advice about COVID which persists, but to a lesser degree, as we'll talk about, that it was, you know, people over a specific age group, like 65, were of a particular risk for having serious Covid complications. And that gave us this perfect storm of both states actively discriminating on the basis of age in their procedures for voting in this age of COVID as well as realizing that old statutes have this incredible impact in the age of COVID So the second one first, Adam, there's, as we put out a report over the summer, there are eight states that just by law, treat differently people with respect to age when it comes to their access to absentee ballots. The most prominent state in the recent wake of litigation here is Texas, where Texas has had a law for decades, Adam, saying that if you're 65 or older, you can vote by mail just if you want. If you wake up one day on the side of the bed where you decide you want to vote by mail and vote by absentee ballot, you can. And all you've got to do is check and say, I'm 66 or I'm 67 or I'm 65 or older. Whereas Texas, for people below 65, have some of the most restrictive voting laws in the country in terms of absentee ballot, right? If you're away, you don't only have to be away on election day. You have to be away over the course of multiple days, including early voting. Your ballot has to be sent out of the county. You know, all kinds of steps if you want to try and vote absentee ballot on other grounds on the basis of disability or illness. The Texas attorney General is on record saying Covid is not sufficient. And if you don't have a positive test or, you know, some exposure to someone with a positive test in your household, you will be prosecuted if you claim that Covid is your reason for voting absentee. So this creates two classes of people. And the class of people is not based on student status. It's not based on, you know, what music you like. It's based purely on age, Adam. And that in our view is a no go under the 26th amendment which says that the right to vote cannot be denied or abridged. We'll come back to that word on account of age. So some folks have been litigating that in Texas. Again, fantastic lawyers. They ultimately were faced with an appeals court that has been unfavorable to this claim a couple of times. They initially won in district court in a great win, but that was immediately appealed and put on hold. And just a couple days ago, as we're recording this now, Adam, a three judge panel of the appeals court that hears cases from Texas, the so called 5th Circuit, issued a 2 to 1 decision saying that this law, which on its face distinguishes people on the basis of age, does not violate the 26th Amendment. And so that it appears absent some kind of extraordinary change will be the law in Texas and the several other states, including Kentucky, including Missouri, on the basis of a new law which treats people slightly differently on the basis of age. Tennessee, which has a 60 year old cutoff, those people will be treated differently on the basis of age, Even though the 26th Amendment says don't do that.

So basically the summary here is the decisions that have come out since we last recorded this podcast interview about the 26th Amendment have in general not been good.

Not been good. But there's hope, Adam. There's hope because we at Equal Citizens, you and I and our friends in Alaska are also litigating a 26th Amendment case. Now, since the last time we talked, this is not a 26th Amendment case on the basis of a law like Texas is, it's a 26th amendment case on the basis of an executive action, an administrative action, which in some ways is more pernicious because despite Alaska law treating every voter equally on the basis of age, when it comes to absentee balloting and everything else. Indeed, Alaska is one of the many states where folks can get a mail ballot, an absentee ballot, just because they want one. Despite that, the lieutenant governor of Alaska, who is the highest election official in that state, decided over the summer that the state would make it easier for older voters to get absentee ballots and harder for younger voters by sending printed absentee ballot applications to 100,000 Alaskans 65 and older with the COVID letter saying, hey, here's how you can vote. You can check one box, get a mail ballot for the primary, get a mail ballot for the general, and leaving younger voters out in the cold. They didn't get a mailing. They didn't get a postcard. They. They didn't get anything else. And so we said, hey, that is something you, as a state can't do under the 26th Amendment because it doesn't necessarily deny the right to vote. Everyone clearly can still vote and vote by absentee ballot in Alaska. But what it does do is abridge the right to vote on the basis of age. And the reason it does that really simply, Adam, is that abridgment, according to pretty clear supreme court law that even this Texas court acknowledged, said abridgment is about a comparison. So you look at one group. How does one group vote? And then you say, is it much harder or even harder by a little bit for some other group to vote? And if that abridgment is on account of race, it's invalid under the 15th Amendment. If that abridgment is on account of gender, sex, as the word the constitution uses, then it's Invalid under the 19th Amendment. If that abridgment is on account of failure to pay a tax, whether a poll tax or any other tax, then it's invalid under another amendment, the 24th amendment. And then the last one of this quartet is if that abridgment, if that comparison is on account of age, it's also invalid. So those are the four voting rights amendments, Adam. And we said, look, it's obvious you can't just send absentee ballot applications to people of only a certain race. It's obvious you can't send absentee ballot applications to people only of a certain sex. It's obvious you can't send absentee ballot applications only to people who are, let's say, current on their property taxes, and those who are delinquent on their property taxes don't get one. So if that's obvious, how come it's also not obvious that you can't just do this for older voters rather than younger voters? So we sued. We asked for an injunction asking nothing more than for them to correct this and send absentee ballot applications to every Alaska voter. We had a really good hearing. Unfortunately, we lost in the hearing. The preliminary injunction request was denied, but we took an emergency appeal to the ninth Circuit, and we should be getting a decision in that case by the end of the month, probably by about September 24th. So despite that Texas case, we're hopeful that another court, the ninth Circuit, which hears appeals from Alaska, will get this right and will understand that this comparison, this, this abridgment of younger voters rights is very real and prohibited by the 26th Amendment.

And Jason, to be clear, getting a split in the, in the appeals court is incredibly important on this fundamental issue of, of equality of access to voting regardless of age, right. I mean, the split is incredibly important. Winning in a federal court is critical to ensure this right isn't infringed.

It would. Adam, what splits do is they really force the Supreme Court's hand because the Supreme Court is not there as just a roving decider of any case it wishes. It has a limited docket, and its really primary role is to make sure that the federal law is uniform in all 50 states. So the cases that it hears the most of are cases in which a court in one region says X and a court in another region says not X. So if we can persuade the court of appeals here that the 26th Amendment really does have this meaning, it's not just about lowering the voting age. It's about taking denial and abridgment of the right to vote on account of age seriously. And that includes when it comes to absentee balloting, which is going to be the majority of, of votes in this upcoming election. Most likely, then we really can force the Supreme Court's hand. Now, asterisk. And I know I'm not supposed to do asterisks in podcasts, Adam, but asterisk. The litigation here is so fast moving and we are getting so close to the 2020 election. As we record, we're now less than 60 days out. I view it as somewhat unlikely that the Supreme Court will be able to have the time to really step in and proclaim how the 26th Amendment applies here, and in particular, how it applies to absentee balloting before the election. I think we may just for the moment, have to be content with the various solutions that different states have offered. But the impact going forward of having a court get this right in the long run, because these laws in Texas and elsewhere are on the books, Adam. They will survive this pandemic. They will survive this year, and it's important that they be equalized.

I want to just dig in a bit more, Jason, about why we brought this case. Again, just to underscore the fact that Even though across the country, you know, the reform community keeps losing in some respects on this age discrimination argument, it's too important to give up, in other words, that we have to keep pushing it in all the different legal venues we can to ensure that the right is enshrined as best as possible, you know, regardless of where. Just we got to keep the hope alive that there is that, you know, the building of the casework and the groundwork for a strong suit in the future, maybe with more favorable judges in both, maybe the Federal Circuit or Supreme Court or in states across the country. But the real, the reality crux of our effort in some respects is, yes, for 2020, but also more broadly, to ensure that we're joining the movement of the small movement, but growing movement of those fighting to ensure that young people have the right to vote, that we're joining that and providing energy to that.

Absolutely. And it's very early times, right? I mean, we've gone from really very little litigation here to some essentially emergency only litigation in just a few months. And so, yes, it's true that the courts here have not embraced quite yet a robust conception of the 26th Amendment, but that is not as if people have been beating their heads against a wall for decades. I think the argument here is really strong. And just because one or two courts get to be first to have a say doesn't mean that those courts are ultimately going to be right. And so that's another reason why, you know, why we want to bring this case in addition, of course, to making real change in Alaska. I mean, we've noted in our litigation there's tens of thousands of voters in Alaska that are under 65 and that lack the ID and to use the online system that Alaska, to its credit, has built. So what that means, Adam, is that among the people in Alaska are people that the state literally knows can't use the online application. It knows it. It knows who has id and it doesn't. And it knows that for very little money and effort, it could have sent them those paper ballot applications because it already did so to 65 and older voters, and it just decided it wasn't worth it. And, you know, governments have to prioritize their resources all the time, Adam, but the Constitution tells them how they can and can't prioritize their resources. One way they can't prioritize their resources is on account of race. They can't give more resources to white people in voting than African Americans, and so too on account of age. And so I think that we are fighting the big picture, but also fighting the small picture for those people whose lives are just being made needlessly difficult and unconstitutionally difficult in Alaska.

Right. And to be clear, this isn't just, you know, Equal Citizens, the national group swooping into Alaska. Jason, can you give a shout out to our amazing plaintiffs and the organization who are helping us out?

Of course. Yeah. No, we've been working with great groups. Alaska Disability Law center is the first name plaintiff, and there's several individuals and other great groups, including Alaska PIRG and the Native People's Action Fund. So it's a broad coalition of plaintiffs. It's a broad coalition of lawyers from equal citizens and partners, and our counsel there, Scott Kendall, who's, you know, been working in voting rights, including on behalf of Ranked Choice voting and a Ranked Choice voting measure that's on the ballot there in Alaska soon. So it's really a team. It's a truly nonpartisan team. It really is a team that is about taking the text of the 26th Amendment seriously. And, you know, I'm confident that courts will. I understand that this kind of emergency litigation in some ways is not ideal, but it's what we've got. Adam, the election's coming up in less than 60 days, and there's people out there that have not been as able to vote as others and purely on account of age.

Right, right, right. So this leads perfectly into my next question, Jason, which is broader, and that's how big of a role is litigation gonna play in the 2020 election? And that's kind of a softball, because we all know that it's gonna play a pretty big role.

Role.

And does that make you nervous that so much of the election rules for 2020 will be determined by, as you said, last minute court rulings?

Well, so it's interesting that you say that. I don't view it as a softball, because I think there's a couple of things at play. The first is that we're now, again, I've said this for the third time, but we're now super close to the election. And we know that many courts, including the U.S. supreme Court, are hesitant to change the laws of an election this close because things happen in advance. Ballots get sent out, ballots get printed. People vote early. So candidates are already running under the current rules. They're mobilizing voters based on the current rules. So when you say litigation will play a big role, there has been an unprecedented surge of litigation to make sure that we have a safe and secure election in. In the age of Coronavirus. Adam, there has also been a surge of both litigation and legislative activity over the last decade because some would say that the Republican Party has engaged in efforts, unlike we have seen for a few decades, to change the rules in ways that are very controversial. Everything from adding voter ID requirements to, as we know, gerrymandering, to witness and notarization requirements, polling places, ballot restrictions. And so has there been litigation over that? Yes, of course. There's also, we'll say winding down now, but there is some additional litigation about what ballots will look like and how the election will be conducted. Our litigation continues. Perhaps there will be some additional litigation about the 26th Amendment and a few other places, perhaps. I know Indiana is a state with the same restriction. There may be a decision on appeal there. There will be potentially a little bit more litigation around voting by mail for Coronavirus, but I think most states pretty much know the rules for who will be able to request an absentee ballot. And then there's some litigation in the final states about who will appear on the ballots. This is in some ways the most concerning of the pre election litigation. Adam, as we record this, ballots are still not going out right now in Pennsylvania, ballots have been halted, that is, absentee ballots have been halted for going out in Wisconsin due to a ruling by the Wisconsin Supreme Court putting a halt to that. And in particular, those two states involve challenges to who will appear on the ballot. I believe at issue in Wisconsin is primarily the Green Party, but there's also a pending potential challenge to Kanye West's exclusion. And in Pennsylvania, it's about the Green Party. That certainly makes me nervous. Right. It is not easy to print absentee ballots at this scale and send them out. Right. Adam, it's not like you and I just go to our printer and print one copy of something when we want it. So we think of printing as super easy. It's actually not. Right. The number of items that have to be printed and mailed is high. So I am nervous but cautiously optimistic that if these cases get resolved in the next week or two, things can go out on time. That's somewhat optimistic, I think. And again, we'll see. I'll listen to this on October 15th or so. But I think once we resolve some of those disputes, I think we will see that the major issues headed into this election have essentially been resolved. And when I say that, I mean the big issues are we know the rules with respect to who can vote absentee or not. Which in 38 states, and even effectively a couple of more, is essentially anyone who requests it. And a few states have some Covid restrictions. Texas perhaps most prominently. We know that we know who will be on the ballot. We will know what the deadline is to receive ballots. Some states, most states listeners, its ballots must be completed and in by election day. Do not wait to postmark them to election day. In some states you can postmark it on election day. It can be received later. Don't wait. If you can get it in early, don't wait. But I think we know that's the law. Depending on what happens with the postal service and maybe other ballot delays, there could be last minute litigation pre election. Adam, on that issue, I'm hopeful that there's not. I'm hopeful ballots go out in time and you know we know the rules for that. And similarly with regard to polling places, right. There will surely be some pre challenges with regard to machines not working and polling places being yanked back. But again, I think as a whole, and I think this was your question, I think as a whole we now sort of have the lay of the land. Let me summarize that and have this answer, this long answer come in for a landing. The summary is that in most states you can vote by mail without an excuse. If you wish, do it early because the deadline in most of those states is to receive your absentee ballot by election day. In most states we know there will be some form of non postal service ballot collection, including drop boxes. Maybe not as many as we might have wanted is best practice. But in most states there will be at least some of those. So watch out for those. Same thing with early voting. We know that rule. Several other challenges, like 26th Amendment challenges, have largely not change the state of play. We're hopeful in Alaska they correct the error here. But again, that's not. I don't think that will change the fact that Texas is not going to let younger voters vote by absentee ballot without an excuse. And then I guess the last thing to say and the last piece of litigation also was issued just last week people may have read that the federal court of appeals hearing appeals From Florida, the 11th Circuit denied the request to invalidate the legislature's really arbitrary and backwards action preventing the amendment that re enfranchised felons from fully going into effect. So there will not be as many, nearly as many former felons who have completed their sentences. But for outstanding fines and other issues, voting in Florida, that effect could affect over a million people. In terms of big cases of that impact, I think, Adam, we roughly know the lay of the Land.

And so, Jason, how, you know, what is, what are your thoughts about how much more preferable pre election litigation is as opposed to post election litigation? Because I assume, and you can correct me if I'm wrong, that we will see a wave, depending upon how close the election is, of post election litigation. And does that worry you?

Yes, of course it does. Because the last major high profile piece of litigation that we saw was of course, Bush v. Gore in a presidential election. And that didn't go well. But we should, we should sort of separate things into three buckets. So bucket one is, what are the rules of the election going to be? That phase is winding down. And I, you know, unfortunately, the Supreme Court was remarkably insensitive to the pandemic in terms of making voting restrictions easier. And, you know, at almost, at every turn, from the 26th Amendment to felon disenfranchisement to even small, smaller things like relaxing ballot signature requirements because it's so hard to get signatures in person, the Supreme Court basically is pretending that coronavirus doesn't change anything. And so there have been real successes getting legislators and executives to make sure that voting is more responsive to the way we're going to have to vote in the middle of a pandemic. Some state courts have likewise done the same. The federal courts and the U.S. supreme Court in particular have not been super responsive. So that's the wave of pre election litigation with regard to, like the big rules. Now, there is always a wave of last minute sort of day of litigation. I remember this, Adam. I was clerking in New York on the Southern District of New York, and we reserved election day and the day before as a day for emergency litigation. Even in those halcyon days of 2012 when elections, I guess, weren't quite so contested because we knew, as we in fact did, that we would get various petitions like, you know, lawsuit. This official at this university is not opening up the polling places at the right time. There was supposed to be a polling place on campus here. There was supposed to be, you know, these machines are not working and the polls are open, or this person was erroneously not given a provisional ballot, et cetera. We know that will happen. Okay? Those are critical. They are protecting each vote, each polling place. They are not the kind of systemic litigation that I think you're mentioning. I have every reason to believe that those will be resolved relatively expeditiously and fairly. I think many judges of both parties just want a fair election on election day. And if a voting machine is broken, I think pretty much every judge Everywhere would say, okay, the poll has to stay open, you know, a little later because one machine was broken and the line was longer or something like that. Right. I mean, that's pretty common sense. Then the last category, the category that I think scares everyone who has thought about this and that your question was also asking was what about push v. Corps 2.0, right. What about litigation over recounts in small elections? What about litigation over mass rejections of mail ballots or litigation because it appears that one county has failed to count mail ballots for some reason? Or what about those? If the election turns on it? And to that, Adam, we can say we are scared. I am scared. It keeps many people up at night because the rules are so, you know, vague is not the right word. They're just so difficult to tie up. How can we possibly see in advance, Adam, the everything that could possibly go wrong in an election? And given that, we just have to count on the decision makers, the state Supreme Court, the federal judges, and the U.S. supreme Court to act in good faith here and resolve the will of the people the way it ought to go. And Adam, would we bet on that happening in the event of a close election? I don't know. In the event of a landslide, I'm pretty confident how it would happen. I think that it would be very, very hard for an election to be stolen in the event of a landslide. In the event of a close election, I think anything can happen. Right.

And so at issue here, which is what we're getting at a bit, is the legitimacy of the election, both, I guess, the actual legitimacy in terms of the rules of the game, but also in the perception of legitimacy, which I think in some respects is almost just as important. Democracy relies on voters, on the people believing that the system is legitimate and fair. I mean, that's why we argue about campaign finance, that maybe there's no quid pro quo corruption. But if Americans think the system is corrupted, that's pretty dangerous. And it's certainly anti democratic and it's certainly something we should fix. And so the question of electoral legitimacy is really at stake here, especially when it comes to these post election litigation or the possibility thereof. And so that's something that we'll just have to monitor. And I think that you're right. As you said, we have no idea what kind of cases will come and we don't know what kind of meltdowns will happen on election day. Fingers crossed that there won't be many. But as we saw during the primary season in the age of COVID 19, there were quite a number of election meltdowns. So we just have to really, really hope that the nonpartisan and some partisan officials who run the elections on a state level are, in all good faith, doing all of the preparatory work necessary to ensure free and fair elections on election day in 2020.

Yeah, I think that's right. And just to add to that, I mean, former podcast guest Ned Foley, who's a professor at Ohio State and who's been a real leader in thinking through what might happen in a disputed election, or how an election might be disputed is maybe a better way of putting it, wrote a really nice piece in Politico over the weekend saying, look, there is a difference between lack of votes and theft of votes. And, and it's very important that if the difference in this election is lack of votes, that both sides recognize that whoever that is, right, whoever lacks the votes to win, if that is legitimately the fact that the votes are just lacking. And of course, every election is imperfect. Right. There will always, always be, Adam, a polling place that has a defective machine. There will always be people who say, my vote was lost. My registration wasn't there. Those are individual things. And if those things don't appear to be so numerous that they would affect the impact of the election, I hope that the media and the candidates, whoever is the loser, say it was lack of votes. Right? We lost. It was lack of votes. Theft of votes is something very different. And it's not clear what would happen to the, to the system if people thought there was an illegitimate election in that sense. Right. I think the trouble that people are having is that one candidate in particular, though there are statements from both parties, make no bones about this. Some Democrats are already saying that there's no way Joe Biden can lose legitimate election. Right. That said, Donald Trump has repeatedly emphasized this theme of there's two outcomes. Either he wins or he loses because of fraud. There's no such thing as a legitimate loss. And I think that the hope is that we've got to drill down to whether that's really happened. And if there is an illegitimate victor, then what might happen, Right. I mean, if. We don't know, right. If somehow some state stops counting absentee ballots at some time due to direction from the president or anybody else, what would happen. I don't know. I don't think civil war, Adam. But that's not something we want to face. I will say, I don't think it's likely.

Yeah, no, but these are the things that, as democracy reformers, activists, we think about every day to make sure that we don't ever get to a situation where there are theft of votes or kind of broad systemic problems where votes aren't being counted. But this actually transitions again, really nicely into the next thing I want to talk about, which is a problem in our democracy that will affect 2020, but it's one that is embedded in our Constitution, and it's one that is gaining ever more attention, and that's the Electoral College. And, you know, so, Jason, there seems to be increased awareness about the inequalities of the Electoral College, namely that the Democrats and Joe Biden have to essentially outperform Trump in the popular vote by estimates of at least 3% to be competitive in the electoral vote. And then that doesn't mean that it'll always be that way. But for this election, it seems like the people who are crunching the numbers are saying it's about 3%, some say even more. Does that awareness encourage you that more and more Americans are realizing that the Electoral College is undemocratic Democratic as it currently exists? Or are you a little worried that because of what I just said, that it is the Democrats who are adversely affected by the college

as it currently

works, that reforming the Electoral College and the critique itself becomes partisan, which then makes reform harder?

Yeah. The last point you made is certainly true. Reforming the college right now is a partisan issue, but it may not be for so long. The reason is that the difference between the popular vote and the Electoral College, it is so thin and able to be shifted. It depends at one particular moment on who your electoral coalition is as a party. And when that changes just a little bit, you know, things can happen really quickly. So it wasn't so long ago, Adam, that, that we thought that Hillary Clinton had a blue wall, and no matter what happened to the popular vote, she was bound to win in the Electoral College. Well, here we are four years later, and like you said, the simulation show, Biden needs to outperform by several percentage points nationally in order to give himself a better than even chance of prevailing in the Electoral College just because of where his votes are coming from. And, you know, I think that that is good. Any attention to this issue, people understanding the system is good because I think the more people really understand it, the more they think, why is that? Right. I mean, we are seeing an election that more than pretty much any other in recent memory for folks is coming down to maybe five states. Right. It used to be that there were like a dozen or so swing states. May 1214. Some people have said in prior elections, it appears that campaigns are treating essentially five and only five states as swing states. Right. Arizona, Florida, Pennsylvania, Michigan, and Wisconsin. That's it. That's the list. The Trump campaign has done campaign stops in Nevada recently. Maybe Nevada's within breathing distance if there's serious polling errors or a serious shift to Trump among certain demographics. Maybe Ohio and North Carolina, I won't say. Maybe those are likely in play, too, especially North Carolina. But that's really it. And so the fact that we all now know this and we're seeing it play out, I think is giving people a lot of pause. Why should I vote? Why does my vote matter? This is such a consequential election, and we're gonna let voters in Florida and Pennsylvania decide the whole thing. That seems unfair and that seems unwise, but it's the system we've got, Adam. So I guess if you're asking me is it net better for people to know about that or net better for people to not know about that, I think know about it because the first step to solving any problem is confronting it. Well.

And that, you know, is leads into some of the projects that we've been working on for the last three years, and one that we're about to start to try and channel some of that frustration with the system as is, into a movement for reform. So first, let's talk about the project around the Electoral College that we've been working on for the past three years. And we've kind of reached the end of a chapter in some respects. So, Jason, can you talk about our equal votes litigation and what has happened over the past year?

Yeah, of course. So we filed a series of challenges in four different federal courts to the way that states allocate their electors, winner take all. And this is called equal votes. We filed these after the 2016 election on behalf of Democrats in Texas and South Carolina and Republicans in California and Massachusetts. And the claim was that how can a system that is supposed to abide by one person, one vote throw out so many darn votes, right? There were over 4 million Trump votes cast in California in 2016. You know, for all good they did, there might have been zero. And that's just not right in a system with one person, one vote. Those cases have now been through the courts of appeals, and unfortunately, the courts upheld motions to dismiss in all of them. So all of the lawsuits are dismissed. I will say that there was some real positive steps, though. I think the argument we developed were really good. We got an excellent dissent from a Judge on the 4th Circuit Judge Wynn, who, who wrote a beautiful opinion, basically said, look, basically what the majority is saying here is this is the, the way it's always been done. But that doesn't mean it's right. That doesn't mean it's constitutional. And so we should let them make their case and let them really take a hard look at how this impacts our society. And we think that's right. We think that's a starting point for more cases. You know, the bottom line, though, is that the political winds right now shifted during the litigation. Justice Kennedy retired. He was replaced by Justice Kavanaugh. And then there was a real earthquake in the thinking about the federal courts when it comes to correcting these errors of democracy in a case that, you know well, Adam, that we talked about called Rucho. And in the Rucho case, that's the one where the Supreme Court finally put the nail in the coffin of doing anything about gerrymandering in the federal courts. And that opinion, just candidly, in some ways, I think, was the harbinger of what was to come in our equal votes cases. Because if the federal courts are not in the business of correcting some of these gross deviations from one person, one vote in our democracy, then I don't think it was likely they were going to correct this gross deviation from one person, one vote. So we leave it there. We still may and are able to appeal to the US Supreme Court if the political winds blow in the right direction. And so we're making that decision. But that's the status of those cases, Adam.

And I should say that even if the outcome wasn't quite what we wanted yet, we were able to generate tons of press coverage about the inequalities in the winner take all system in the Electoral College. And I'm really proud of that, Jason. I think that that was a real benefit to our litigation. And then also I should just say, if there are any listeners, this litigation was funded by our supporters. We crowdfunded this over the past couple years. And so just if there are any listeners who chipped in some money to fund this litigation, first of all, thank you. And second of all, it wasn't for naught that we really did accomplish a lot in terms of really, again, laying the intellectual groundwork both in the court system as well as in the public sphere about that. The Electoral College isn't just broken because sometimes the winner of the popular vote doesn't win the Electoral College. But in every single presidential election, there are inequalities because of this winner take all system that produces a random assortment of swing states that decide the election. And if you don't live in those states, your vote doesn't count. So thank you. If you threw in some money. And we're just going to keep fighting. And one of the ways we're going to keep fighting, Jason, is with a new project. So if Equal Votes, the chapter has ended on that with the potential to start a new chapter there. There's a new campaign we're launching called Fix the College, which I think we've alluded to on this podcast. But give us an elevator pitch and about where you can find out more information.

Yes, thank you, thank you, thank you. To those who have been following this issue in this case, and I just want to add, the other thing that is, I think, really positive is the dissent that Judge Wynn wrote. There are so many cases in the history of American law where there's a dissent, and a decade later, you look and you go, wow, that turned into the majority. That's why we let judges write a dissent, right? I mean, if in some ways they don't matter at all because you lost, why are you even saying anything? Why are you taking the time? And the whole reason is that they can be there as the seeds of something that grows legally and politically. So that is something that did not exist in this world before we started this project and wouldn't have existed but for our supporters. So I think that's really, really positive. But yes, as you said, Adam, we move on, again, maybe not fully from those cases because we could still appeal to the Supreme Court. But in the meantime, if the courts are not going to be the savior of democracy that many wish they should be and that they are well positioned to be, candidly, then it's got to come from us. It's got to come from we, the people. And so Fix the College is a project that we're starting to start thinking about. What are the ways that we can have really engaged conversations with a variety of diverse people from everywhere, from every background, from every state and every city and talk to them about how does this weird thing called the Electoral College that you only hear about every four years, it's actually at the root of so many problems of our democracy. And we want to just have engaged conversations with people about this. And there's these really cool platforms we'll introduce that are brand new, that are better than Zoom because they don't just allow for free for all. It's not awkward. They let you sort of go in an orderly way about how to get your word in edgewise and learn from a diverse set of people. So I think it's a really cool way to connect with one another. It's a really cool way to learn from one another and more details to come. But that's the elevator pitch, Adam. Get people having civic conversations about important issues of democracy, especially to start the Electoral College. Yeah.

And if we're gonna change the Electoral College, if we're actually gonna reform it, it's gonna be a long term process. And we're committed, I mean, Equal Citizens is committed to not just talking about the Electoral College in the six months before an election and three months after an election, but, you know, for the long term. And I think it requires a lot of organizing. And so if you're interested in joining the effort and getting kind of, you know, the first updates when we're officially, officially, officially ready to launch, you can go to FixTheCollege US and you can sign up there and you can be on the mailing list and we'll send you all of the information and you can be a part of this first of its kind deliberation, which Jason, I think I speak on your behalf, on Larry's behalf, that we're really, really excited about it. So, Jason, one quick question and then one final wrap up before we end here. The first, which is quick, is there's a big electoral College issue on the ballot in Colorado this year and it's something that we should all be aware of as democracy reformers. So can you give a quick explanation of the role that Colorado can play in the, you know, the advancement or potential disruption of the movement for electoral college reform?

Yeah. So for the first time ever, the National Popular Vote Interstate Compact is going to voters. What this is, is a law that commits states to awarding their electors to whoever wins the national popular vote, not the statewide popular vote. So it would, if passed in enough states to get to 270 electoral votes, which is how many you need in the Electoral College for a majority, it would immediately cause a sea change in the way we elect the president because there would be this group of states that are committed to the principle of equality, one person, one vote, and looking to every vote in every state to decide how they award their electors. It's not in effect yet. It has 196 electoral votes pledged of the needed 270. But it was passed in Colorado and unfortunately, a really well funded opposition effort emerged. And Colorado has a way for voters to overturn acts by the legislature. And that's what will be on the ballot. So this fall, if you are a Colorado voter, please vote to keep the national popular vote interstate compact. It's really critical. Showing that voters want this. Showing that voters want the popular vote could be the signal we need to get this over the hump for the 2024 or the 2028 election. By contrast, I don't even want to think about what happens if voters reject it. They shouldn't. It's only one state, candidly. But even in just that one state, they shouldn't reject it. Right. Every vote matters everywhere. And it's now up to Colorado voters to vindicate that principle.

So definitely to our listeners, spread the word. Spread the word to your friends and

family in Colorado far and wide. This is. It's really critical.

Yeah. So, Jason, one final wrap up. I want to give you an opportunity to reflect a bit because you and I have been working together for three years now. You've been the executive director of Equal Citizens for almost two, almost two years now. And this past year you've really, in your second year as being the executive director, you've taken on this organization and fought for democracy reform in the midst of a global pandemic. And I feel like, you know, as an executive director, as the leader of the day to day operation of this organization, you know, you've come into your own. You've litigated for the first time in the Supreme Court. You've coordinated conferences, developed coalitions. You know, really, we've moved from Equal Citizens being a new organization into being an established organization under your leadership. And so I'm wondering, you know, what are some reflections that you have just over the past six months to a year of what it's been like for you, who cut your teeth in a very different kind of legal work coming into the democracy reform work and now doing it in an unprecedented and dangerous situation? Where are you thinking right now? Give us a sense of how you're feeling about the broader movement for reform form and just are you still maintaining your optimism or are you feeling like we're taking a step back?

Well, that's the softball question, Adam, that you thought you were asking as softball before because I appreciate the kind words. I think that for all of us in the community and you too, you are out there talking to so many people in so many different states on so many different fronts. I think that what I would say is there's this strange kind of Schrodinger's cat situation of being half alive, half dead, and you've got to open the box to See which one you are. Because on the one hand, there is such acute attention now to issues of democracy and voting. The Democratic Convention was really all about this, right? I mean, it was about protecting democracy. The Democrats, in 2019, the entire House of Representatives passed HR1, a remarkable bill that does more for democracy than any bill that's come out of Congress certainly since the Voting Rights act in 1965. That would end gerrymandering, that would close loopholes, that would start to publicly finance elections, that would strengthen ethics reforms, that would extend the Voting Rights Act. I mean, so many important things. So there is this incredible optimism that this is happening. People finally are realizing that if you have a broken machine, you can give it good inputs, but it will always give you garbage out. There's actually a lot of good people that are part of the political process, but the machinery is so creaky and so broken that we cannot get the solutions we need. So that realization, Adam, is as high as ever. And I think the vigilance by many people in terms of both the immediate crisis of holding an election in a pandemic amid creaky old rules and some election officials and party officials that folks of both parties that may not be operating in the best faith, people are, you know, guarding against that. But. But at the same time, right, the Schrodinger's cat part is, okay. There's this awareness, there's this hope for the future that we can fix this, because now so many recognize the problem. But there is this dread, right? That's the dead part of the Schrodinger's cat. I think there's a dread that, my God, sometimes it seems in our system, what can go wrong, will go wrong. And what if it's close? What if there's a power outage in Phoenix or Milwaukee or. Or Philadelphia or Miami on election Day? What if there is a massive loss of ballots in some county or some polling place or by the postal service? What if there is some battle between a governor and a legislature, a state supreme court and a governor and a secretary of state? What if there are lines of people for four, five, six hours in a pandemic? What if there is a snowstorm? I mean, you know, all of these things can happen, and there is just this dread that if they do happen, are we equipped now? Do we have the right people in place? Have democracy been so eroded that we can't even solve the problems that are of our own making? I dread it. I think, Adam, that once we open the box, we will see the cat alive. I do. I really, really do. But I think that's how I feel, and that's how many people feel.

So then just again, one more softball. Are you glad 3 years ago you decided to make the transition into doing democracy reform full time?

Of course. I think Larry and Adam, I know you believe this, too. There is no. Well, maybe an addendum to what Larry has said is in order now. We'll have to ask him next time we do a podcast with him because he's always said that reforming our democracy, ending corruption, is not the most important thing we do, but it has to be the first thing because it's the baseline. You know, maybe in this time of pandemic, maybe we should revise that, because now it kind of is the most important thing, because I don't think even he contemplated that things were so bad that we literally may not even know who wins elections. Right. I think the supposition of Larry's it's the first thing, if not the most important thing, was we'll still know who wins elections. We'll just have really big, big problems with how they're run and how the money flows and whether or not we can solve problems. Now that it's. We're coming perilously close to running out of money and having bad systems in place and having such so many vulnerabilities to not even knowing who's gonna win the election. Maybe, Adam, we can get Larry to revise the saying that it's the first thing and the most important thing, but I don't know. I certainly feel that it's both. Yeah.

And I agree. That's why every day we work on this stuff. And I agree with you. I feel as bad as things are. I do really feel optimistic. I mean, I just. It's amazing. I mean, just for our listeners who maybe aren't doing this work every day like we are, but you know, just to have the wind at our backs of public opinion. And just like these unprecedented number of people on the grassroots who are. Who are not only thinking about democracy reform, but also acting on it, it just gives such a sense of purpose, meaning, and encouragement to the work we're doing. So as bad as things are, Jason, I feel great. I think you feel great that maybe, you know, we don't know what's gonna happen, but we sure as heck are gonna give it our best shot. And, you know, that's a good feeling.

The Schrodinger's cat of democracy will hopefully be alive and well when we talk again in a couple of months. Good to talk to you, Adam.

Absolutely. Thanks, Jason.