Senator Ron Wyden on Voting During A Pandemic

This podcast is part of the Democracy Group.

This is Larry Lessig. This is the third season of the podcast. Another way. For most of the season, we've been focused on what we call the potus. We one project our effort to frame a commitment by presidential candidates to fundamental reform. Now, there's good news and there's bad news about that project. The good news is that we succeeded in getting all but one of the major candidates to commit to fundamental reform and to make that commitment, something they would do in the first hundred days of their time in office. It was an extraordinary success. The bad news is that the one candidate we didn't succeed in getting a commitment from is the candidate now likely to be the nominee of the Democratic Party, Joe Biden. So we're still working. We're still working to get Joe Biden on this ticket, and I'm hopeful that we'll have a chance to talk to him on this podcast. But today we're gonna talk about another fundamental question affecting this democracy. The right to vote in the context of the greatest threat to the public's health since the 1918 Spanish flu pandemic. Specifically, how will we assure that people have the ability to vote in 2020 without risking their lives? We're incredibly fortunate to be able to talk with one of the leaders in the United States Senate pushing for this voter protection, Senator Ron Wyden. Senator Wyden is a Democrat from Oregon. He was first elected in a special election in 1996. The first senator, as you'll hear, elected by a vote by mail system. He's been a leader across a wide range of issues, including issues important to Internet freedom. Some may remember him as one of the lonely opponents to the SOPA PIPA legislation in the United States Senate. Until many of you helped rally America against that legislation, and then practically everyone in the Senate was against that Internet censorship measure. He was a friend and in ways I don't think he recognizes, a mentor to my friend, Aaron Swartz, speaking at his memorial and inspiring many people to understand Aaron's work. He's been a critical leader in Democratic reform movements generally. And today we're going to speak with Senator Wyden about the legislation that he and Senator Klobuchar have introduced, the Natural Disaster and Emergency Ballot act of 2020, let's call it the NDEB act, legislation designed to assure that in the context of national disasters, which the disaster of the pandemic that we're experiencing right now will be when it returns in the fall, those disasters don't interfere with the capacity to run our democracy. Senator Wyden, we're so grateful for your speaking with us today. We're recording this on April 7, 2020, a day that will live in infamy. Today, Wisconsin is holding a primary in the middle of a pandemic. I guess I want to just start with this fact. I guess I just never would have imagined that we would be at a moment in American history when in the middle of a national crisis, you could not get agreement from a state legislature to delay an election which could be delayed in a way that wouldn't affect anything. Like, nothing matters about delaying this, at least the way the governor in Wisconsin wanted to delay it. How do you understand how this is where we are right now?

One of my concerns is they just didn't really understand the public health and public safety consequences. We know, for example, the majority of poll workers in America are over the age of 60. So you have older voters who are over the age of 60 waiting in these long lines to, in effect, get up to the place where they're going to vote. And presumably people are going to exchange IDs and the like. It is just a prescription for trouble. And I'm not sure that these legislators really thought through what it meant to have an older voter approach a older poll worker during the middle of a pandemic. And my hope is going forward because I have been introducing book by mail legislation actually since 2002, when it was really kind of an academic issue debated by political scientists. Now it is no longer an academic issue because I believe in a pandemic like this one, vote by mail is the public safety option.

Okay, but, so, you know, this is not surprising. Your career has been a career building bipartisan solutions. And so it's not surprising you would avoid the understanding of this moment that many people are framing it as, which is like this moment when people are openly willing to intervene or not intervene in an election system for partisan gain. Is that not part of what you think is going on here?

Absolutely. There is no question that there is a very significant partisanship piece of this decision. I like to think, though, that if people really thought through the public safety consequences, they would say to themselves, at some point, at some point, we've got to say partisanship is less important than the safety of our friends and neighbors.

Yeah, but I just, you know, I remember, and I know you do, too. In 2000, in the election recount debacle, when Joe Lieberman, the vice presidential nominee in that election, told Florida officials that they need to be counting Every vote, including the votes of military personnel that came in late and were not qualified under the law because it was so important to count and include everybody in the election process. A decision which obviously was against the interest of the Democratic Party, but it seemed like natural, it seemed like the obvious thing to do. And I guess what I want to come back to after we talk about your bill, which I think is incredibly important, is how we can get back to this appreciation that there's something more fundamental than being a Republican or being a Democrat, that being a member of a democracy is something more important than just that. Now, you set this up. We're in the middle of a pandemic. Many people are optimistic the pandemic is going to dissipate by the summer. But what everybody believes, at least who studied this, is that by the fall we're going to see a virulent return of this virus. There won't be a vaccine. So it's quite likely that in November, once again, we're going to be in a situation where especially older people will be told that they should not be out there voting, that it's a risk to their own life and they'll be forced, if the situation is, as in Wisconsin, to choose between doing their democratic duty and taking care of themselves. And so the solution you've offered is a vote by mail solution. I mean, obviously being the senator from Oregon, this is something you're familiar with, I guess, for 40 years now, is that right? Oregon has had vote by mail.

We have. I'm the nation's first senator elected completely by mail. But what people don't really understand, Larry, is the second senator who was elected completely by mail was a Republican. And what I hope to be able to do in the weeks ahead is say, look at what you have said. Seen today in Wisconsin, the scenes are like a post apocalyptic movie. Lines that stretch for blocks, poll workers in homemade hazmat outfits, a mother with a young child who decided it wasn't safe for her to vote and basically went home. What I'm going to be saying here is now we are talking about an approach forcing people, as we saw in Wisconsin, to make judgments that I think are going to make people sick. That is almost un American. That's not what we're about. And I think now what we've got to do is make that case and make it clear that just because you're terrified of having a fair election doesn't mean that you're going to be allowed to put the lives of your neighbors at risk.

Okay, so. But if we try to be charitable about the other side and try to understand what beyond politics might be, leading them to be hesitant. One thing that people often talk about is the fear of fraud with vote by mail. I wonder what Oregon's experience has been

with vote by vote by Oregon's experience. And this has been the experience of other states. Colorado is one where their elected officials have said this, that we just haven't seen it. In fact, when I won that first special election, my Republican opponent was urged to claim that there was fraud, and he said there wasn't. Ron won the election. Now, we do a couple of things that are very important. The first is we have a signature verification system so that when Larry Lessig signs the back of his ballot, that signature is compared to the signature they have on file, and that is a big help. Second, we put out everywhere hither and yon that if you, for example, sign somebody else's ballot or in some way tamper with a ballot, you face very serious penalties. It is not something that we just go, you know, that's the way it goes. So the combination of the signature verification plus making it clear that there can be very serious penalties, and we say this everywhere, has really not allowed anyone over the last couple of decades to say, oh, the Oregon system is tainted by fraud. And you haven't seen that with the others either.

So you actually, I think the statistics actually show you probably have less fraud, even though fraud is not a huge issue, but you probably have less fraud in the vote by mail systems than in other systems, and you have a much higher turnout. Right. So the turnout in Colorado and Oregon is off the charts compared to the rest of the country.

To give you an idea, in the special election, I won in the dead of winter, 67%, thereabouts, turned out in the previous Senate special election that had been held, it was in the 20s.

Wow. So it's a way to include many more people, even in the ordinary case. That's obviously, Oregon's special doesn't do this just in the middle of pandemics. They do it all the time. But now we're facing this question in the pandemic. So let's talk a little bit about the structure of your bill. The Natural Disaster and Emergency Ballot Act, NDEB maybe for short. So this bill, it's not a radical change. It seems to me to be just building on the infrastructure that's already out there. So one thing it does is it requires, at least for federal elections, that we've got early voting available in every state that all states allow registration for at least 20 days. Before that, there's a special contingency plan for something like an emergency, which it seems likely we're going to have some online systems for absentee ballots that you have to count the absentee ballots if they're postmarked or signed before the election. It builds on something which I was out of the country in 2016, so I was very happy this thing existed, the Uniformed and Over Overseas Citizen Absentee Voting act, which basically allows you to download a ballot if you're out of the country and to use it to vote and to facilitate tracking of that. These are all modest additions to an infrastructure that's already there. I guess I have two questions that this modesty. So one question about the modesty and one question about maybe it not being modest enough. So the question about the modesty, why not just require that everybody get a ballot sent to them up front that they could use, or they could do any of these other things too, but just to assure that everybody is included right out of the box.

Larry, what we said, and remember, having introduced this for so many sessions of Congress, I heard every possible argument. But the one that you hear the most, that really strikes at the core of the debate, this is the opposition's big argument, is that somehow Senator Klobuchar and I are federalizing the elections. That somehow your election is going to be run by Washington D.C. and there will be people running around jet with jackets that say US government on them and the like. We are not federalizing the elections. What we are basically doing is upscaling the status quo. So what that means is when I started introducing these bills, for example, in so many parts of the country, you had to have an excuse to vote absentee. It was like having a note from your mom to be absent from school. Now, what we've seen since the time I introduced these bills, so many parts of the country have gotten rid of their extra burdens to get an absentee ballot. By the way, talk about double standards. Donald Trump says everybody should vote in person, bring an id. But he was quoted in various kinds of media, and I saw this report in the Palm Beach Post, he's voting absentee. So part of what we're saying is what's good enough for Donald Trump ought to be good enough for the rest of the country. And the reason the bill is modest is we say under this bill, because of the funds and the technical help, if a citizen in any part of the country wants to ask their local elected officials for a vote by mail ballot, they ought to have it. The jurisdiction can keep doing all the things they're doing today. We're not taking it over. They can do everything they're doing today. But if that citizen says to their local elected officials they would like to have a vote by mail ballot, they can get one.

Yeah, okay. And I think that's, from a federalism perspective, really wise. Although, of course, the Constitution expressly gives you the power to step in and to make sure that the standards that apply to federal elections expressly on the Congress and the Supreme Court has interpreted for the President as well, are standards which you have the authority to adjust. So it might make sense practically to just add on rather than create a whole new system. But then I wonder the opposite. The other side of this is to say, why not be a little bit less, more modest about this? Why not say we face an emergency right now? Rick Hazen has raised this question. I think it's a good one. We face an emergency right now. It's an emergency caused by this pandemic. We should respond to this emergency. And so we're going to implement this in 2020, and Congress can revisit it if it seems like it makes sense for future elections. But let's at least recognize the reason for this, which is this pandemic, and respond in like because of that reason. Is there a reason why it doesn't make more sense to try to narrow its scope or its hopefulness for the future and to make sure that it gets done this year?

Larry, what I've tried to do as a legislator, and I think we talked about this when we were teaching that course at Stanford, is I always get up in the morning and say, what can I do to make our system of government better today and to do it in a way that makes sense for the foundation of the future. That's what I think we're doing. And it seems to me the opposition wouldn't care if we were saying that it was just for this particular pandemic. In other words, after you say that, you're going to go to such great lengths that you're going to make people vote in person without really any debate, even in like 36 hours in the state of Wisconsin. That telegraphs to me that these were not people who are interested in trying to find common ground on a modest experiment. They were going to tell people they had show up and vote even when it put their health at risk. And so we took the course that I continue to believe makes sense, which is let's do something that helps people now, in the middle of a pandemic, makes sense for the future. And you go from there.

Okay, so you, again, as I said at the beginning, have extraordinary experience trying to knit together these implausible coalitions inside the United States Senate. So for people who are not in the Senate, and we look at that institution on the right led by Senator Mitch McConnell, we can't quite understand how people believe what they believe. But then when you look at that institution and you know these people as friends and as colleagues, do you believe you can knit together a coalition strong enough to overcome Mitch McConnell's resistance or reluctance to have any reform that affects or makes, enables people's capacity to.

Larry, I always think that political change is grassroots up, not trickle down from Washington, D.C. so what is important about podcasts like yours is it gives us a chance to get the word out. That's number one. Number two, I think that we are starting to see a little bit of a disconnect at the state and local level with how those officials feel about vote by mail. You've got Larry Hogan, the governor of Maryland, Republican, very interested in vote by mail. And there's kind of a disconnect between those local officials and Mitch McConnell, who, as far as I can tell, in all his time in public service has never been for expanding the franchise. So I think we're starting to see a little bit of headway there. Also, we're trying to get out the word about sort of the McConnell strategy for holding off real reform. For example, what he really likes to do is wait until the very last minute when there's a problem, when the forces of Democratic participation have just bubbled up, the point where he can't hold it off any longer. Then he says, okay, we'll spend some money. And so he throws some money out to the states and we don't get the real reforms. What happens is you have election officials at the local level who will spend it on insecure voting machines. The voting machine lobby has always fought me on these kinds of issues. This time, we're making it clear to Mitch McConnell this is not just about the money. We do need additional money, but it's also about the essential reforms. And you read through several of them.

So, I mean, obviously Amy Klobuchar is an important ally to have in this. Are there other Senate allies that maybe don't come from your party?

Well, what I can tell you is one, I do think that there is a disconnect between Republican local and state officials. I talked to two Republicans yesterday about this and Mitch McConnell two. I think that as people look at these apocalyptic pictures today in Wisconsin and say, are we really putting our citizens in America at risk for partisan reasons? I think that's going to help us. We've still got six, seven weeks here, six, seven months. And to me, what I hope people are listening to this podcast will do is be election security Paul Revere's and get out and talk to their elected officials and particularly their state officials and those who are in positions where they can affect the elections and say, why can't we have the public safety option during this pandemic? That's how I'm referring to to it is I'm watching those pictures in Wisconsin, those lines, and I'm saying to myself, this is contrary to the decency we're all about as Americans. It's just not right. And then what would you do? And I'd say, I think people should have a public safety option. If they want a ballot by mail, they should get one, period, full stop.

I do think decency is the right frame here. And, you know, I think that at the state level, at the grassroots, as you're talking about it, you know, many people, even many Republicans, I think, can be brought to recognize that there is no good reason, there's no good reason for making it harder. Making someone risk their life in order to vote, it's especially a partisan reason, is not a good reason to make it so that you have to risk your life to vote. And so that, you know, nonpartisan justification should be enough for many of them. It might be that they also begin to think about a partisan consideration. I mean, you know, we've done some numbers and looked at exit polls in Florida, for example, in 2016, and if you imagined suppressing the vote of older people in Florida just by 25% in 2016, that would have flipped the state. It would have gone for Hillary Clinton. Because, you know, obviously the significant number of older people, according to the exit polls, we're supporting Donald Trump. So I think that the first best argument is what you've made. We are citizens. We should have a freedom to vote that doesn't depend on risking your life. But I think that it's a more complicated political calculation than people are acknowledging, and that complexity alone might be enough to break people free and make them think about the principle rather than the politics.

Larry it's interesting. From that very beginning in 2002, political scientists have been arguing it both ways. There's no question that more conservative voters are often older and often live in Rural areas. And that's why I made the point. I was Oregon's first senator elected by mail. I'm a Democrat. Oregon second senator to be elected by mail was a Republican who came from rural Oregon. So it's not even clear how the data breaks out. It's just that this has almost become kind of folklore now that somehow vote by mail is just a big plot by Democrats to win elections. And let me just give you a 30 second story. Originally in Oregon, Republicans were for vote by mail and the Democrats were against it. The Republicans said, yes, our rural voters will turn out. And they said, we're so smart and sophisticated, we'll use it. The Democrats probably won't figure it out. There was actually a veto of a vote by mail by a Democratic governor. So Republicans were for vote by mail, Democrats were against it. Then I won the Senate special election and everything reversed. Democrats were for vote by mail, Republicans were against it. Oregon voters said nuts on this, put it on the ballot. And overwhelmingly Democrats and Republicans and people across the political spectrum voted for it. And nobody since, nobody has suggested getting rid of it.

Yeah, I think that evidence, I mean, in Colorado and Oregon, even Utah has been very strong and encouraging.

Than Utah.

That's right. Well, Senator, we're so grateful you've taken the time to talk. What you're doing is important, especially to the extent you can wake people up to a perspective that's something other than right and left or red and blue, something that's more red, white and blue.

This is about common sense and decency versus putting the health and well being of our people at risk.

Yeah, what could be simpler than that? Thank you so much, Senator. It's so wonderful to speak to you again.

Great talking to you, Larry. Thanks so much.

That's all for this podcast. These podcasts are produced by Equal Citizens Us. You can find us on the web at equalcitizens Us Anotherway. There's a place there to share the podcast. Please share the podcast and to give us your feedback and your ideas. I love the feedback, especially the ideas. Please do both. Whether or not a philosopher can resolve, whether the tree falling in the woods that no one hears creates any sounds. I study philosophy. I still don't quite get that question. We're pretty sure that a podcast that's not shared does not produce any change. And we need change critically right now. Some of the ideas discussed in this season of Another Way are discussed in a new book I published this last fall. They Don't Represent us. You can find that book@hc.com representus. That's HC for HarperCollins, not Hillary Clinton Representus. I look forward in the next podcasts to talking to the clients in the cases that we will have before the Supreme Court when the Supreme Court gets back to work addressing the question of elector freedom in the Electoral College. Until then, this is Larry Lessig. Thank you so much for tuning in.

Hey, everyone, this is Jason, the director and chief counsel of Equal Citizens. I want to close the episode today by letting you know that we've now joined the Democracy Group. This is a really exciting new network of podcasts and podcasters that talk about issues we talk about, you know, democracy, reform, making sure that everyone has voting rights and voice in our society, and talking about other big ideas in a nonpartisan way. There's lots of great podcasts on the network. We're thrilled that others are going to be featuring our podcast and that we'll get a chance to talk about other podcasts and shows that we really like that, that talk about some of the same ideas that we talk about here. That's what the light bulb that you hear at the beginning and end of this episode is for. And we're just excited to be a part of it and to grow it with the good folks at the Democracy Group. Much more on that in coming weeks. We wanted to bring you this episode as soon as possible, but we're really thrilled. There's some great people behind it, and we think it'll help you discover some new shows and help bring this show to a new audience.