Every Vote Counts: What’s Next After the 2020 Election? Part 2: Peaceful Transition of Power

(upbeat music) – Good afternoon, everyone Thank you very much for joining us I wanna welcome everyone to the discussion today It’s a discussion involving our second session around the topic of every vote counts What’s next after the 2020 election? I wanna give a welcome on behalf also of specifically my research center, The Center for Inclusive Democracy which is at the USC Price School of Public Policy, and on behalf of the school itself as well Today’s session is on the topic specifically of the peaceful transition of power So the nation has experienced we’ll say a tumultuous election season, I think everyone can agree on that We’re still in many ways enduring certainly a high degree of uncertainty, post election day itself Not a surprise to many, but we are experiencing that So today we’ve got a distinguished panel that will walk us through this conversation National experts on this topic, talk about, where we’re at now currently, what to expect going forward, post today and and post January 20th I wanna just draw your attention here to the screen as you’re seeing it, you’ve got that QR code as Harley mentioned a moment ago, you can use your camera app I’m gonna give a brief bio of each of our panelists, but if you want an extended bio or more information you can just scan that on your cell phones app and get download, or get that additional information So our first panelist is Professor Rick Hasen, he’s a Chancellor’s Professor of Law and Political Science at the University of California Irvine Rick is a nationally recognized expert in election law and campaign finance regulation, he’s also a CNN election law analyst I’ll go ahead and introduce all three of our panelists, and then we’ll get into questions Amber McReynolds, is a leading expert on election administration and policy, and coauthor of the book “When Women Vote,” and is CEO for The National Vote At Home Institute and coalition, and is the former director of the Denver elections office for Denver, Colorado Arturo Vargas, has served as a Chief Executive Officer of NALEO Educational Fund and NALEO itself since 1994 A tourism nationally recognized expert in Latino demographic trends, electoral participation, voting rights to census, redistricting, and actually the list goes on beyond that Again for extended bio’s just scan the QR code So I’m gonna open up now our conversation the first question is for professor Hasen Wick, if you can please start our conversation off by giving us an overview of the remaining steps involved in the process to finalize the 2020 election I know within an hour or so of us starting this broadcast there was a major court decision in Wisconsin How would you summarize the legal challenges submitted since election day as part of this part this, part of your answer? – Thanks, thanks for having me It’s great to be with all of you I think the last time I saw you Mindy, I had you on a UCI panel, and we were talking about whether we were gonna have a successful election And I think one of the headlines is that thanks to the efforts of people like my co-panelists, we really did have a successful election turnout set a record People had many opportunities to be able to vote safely in the middle of a pandemic, and there’s a lot to be thankful for But as you said this panel is on peaceful transitions of power And we’re now in a very unusual moment in American history We’re now about a month, I guess a month to the day since the election, seems like it’s been five years, but it’s only been a month And in that time we’ve had a situation where the losing candidate has not conceded And maybe the closest recent parallel is the 2000 election, but then the election was extremely close in one state, Florida, and it was down to just a few thousand votes, and there were recounts going on And as soon as the final election dispute in court was resolved by the Supreme court, which happened on December 6th, I believe it was in 2000, Al Gore the next morning conceded the election So let’s talk about what’s going on right now The election is not particularly closed in the electoral college

As we see things right now, it looks like Joe Biden will have 306 electoral college votes compared to 232 for president Trump It’s less close in the popular vote but the popular vote doesn’t count So what are the steps that have been taken and will be taken? So ordinarily it goes like this, when we’re talking about for president where it’s much more complicated People cast their ballots, the ballots are tabulated, there’s a process of looking for errors and reconciling things And eventually when all of the totals are official you have state election officials certifying the vote And when it comes to the presidential election that typically involves some kind of ceremony or process involving the governor of the state who will then appoint electors So we don’t vote directly for president, technically we’re choosing electors in each state And so those electors are then appointed through the certification process Almost all the states have gone pretty far in the process Many have already certified, there’s a nice chart at the New York Times website where you can track each state certification I think New York and California won’t be certifying until around December 7th, they’re taking a really long time to count The key dates to look forward to, there are three more key dates There’s December 8th, December 14th, and January 6th December 8th is significant because there’s a provision in the federal law called The Electoral Count Act, that says that any state that sends in a slate of electors by this date, by December 8th, they will not have their electoral college votes questioned in Congress When Congress goes through formality of counting the electoral college votes And this year that is December 8th, it looks like every state is on track to meet the safe harbor deadline barring any litigation, which I’ll talk about in a second The next thing that will happen is on December 14th the electors will meet in their respective states And I assume there’ll be practicing social distancing, and there’ll be casting their votes The results of those vote, this will happen on December 14th, the results of those votes will be sent to Congress And in Congress on January 6th, this will be the new Congress, the Congress that has been elected in this election They will go through and they will count those electoral college votes and declare the winner As I said, it looks like Joe Biden has a comfortable lead in the electoral college, but Donald Trump has been seeking recounts, administrative recounts as well as filing lawsuits And some of his allies have filed other lawsuits seeking to delay certification where it hasn’t happened, reverse certification where it has happened Some of the grounds are grounds claiming fraud, no court has found significant fraud anywhere in the United States in terms of how the election has been conducted Some of the arguments are that procedures that were followed were illegal under state constitution or under state law As you mentioned today the Wisconsin Supreme court declined to take up an original case that would consider those questions It said a case could be filed in the lower courts but there may not be time for that to be heard In those cases, raising meritorious claims, or potentially meritorious claims is a big hurdle that the Trump campaign and their allies face in trying to raise these issues, which is that there’s a long delay here between seeing problems with the election and actually filing suit And there’s a legal principle called latches which says that, you don’t bring suit about something after the election that you could have brought before the election, because you run the risk of disenfranchising voters in reversing election results So if, for example, to take the Wisconsin case if there were problems with the instructions that the Wisconsin election commission gave to election officials throughout the state of Wisconsin about how a absentee ballot should be counted, those problems should’ve been brought up before the election, rather than after the election And although, as you mentioned it was a four to three decision not to hear this case Initially, two of the dissenting justices indicated that even if there was a problem with how the election was run, that there are lots of barriers to trying to use that as a means of reversing the election So it looks like the state Supreme Court is nearly unanimous that even if Donald Trump had good legal arguments, which the court didn’t reflect that whether they were good or not, the remedy wouldn’t be to overturn the election results So right now, while there’s still lawsuits going on in Pennsylvania, a couple are heading to the United States Supreme court, in Georgia where there’s a couple before the United States Court of Appeals for the Eleventh Circuit, and in some other states, I think Nevada None of these lawsuits have been successful, the Trump campaign’s record has been something like

one and 41, I think by the latest count I don’t anticipate that the certification will be stopped or delayed in any of these states So the next place where there could be a fight would be either if state legislatures try to appoint their own alternative slate of electors, which seems very unlikely, although it’s still theoretically possible, and potentially a fight in Congress when the electoral votes are counted on January 6, that would be more of a symbolic measure And so everything seems on track for Biden presidency to begin on January 20th, but because we don’t have this concession from the president, we’re in this kind of weird limbo period, people have a lot of anxiety about how the election is going to be run, and whether we’ll have that peaceful transition of power I’m confident that things are still on track but it is discomforting to see some of the things, and I’ll just end with this It’s also discomforting to hear some of the president’s supporters saying some very anti-democratic and anti-American things, like “We should declare martial law,” that Chris Krebs who was in charge of cybersecurity, who said that the election for the Trump administration, he said that the election was conducted fairly should be shot, that’s something that one of the president’s lawyer said, he later claimed that that was a joke I mean, we’ve heard some things that were really disturbing And so of course, people still have a lot of anxiety but in terms of the legal methods, things seem to be working as they should – Thank you very much I think that is reassuring your overview and where you’re at right now probably for many of our viewers And I should mention too, Professor Hasen’s book “Election Meltdown,” has been widely referenced to this election cycle, and will continue to be I’m sure going forward, for those of you who are not familiar with it you might wanna check it out So moving on Amber, question for you is what are some of the main elements of how elections were run by jurisdictions in this election season that have been publicly contentious, viewed in some way as right for contention? And as part of that, what do you think is the remaining impact from this contentiousness? Things like mistrust – Sure, well, thanks for having me Mindy, and thanks to the USC for hosting this I think it’s really important to always kind of reflect on the elections that happen, mainly because I’m one of those people that believes continuous improvement is the only way to continue to make all of these systems better, and there’s always lessons we can learn after the election So this year, a couple of themes that I just wanna highlight in this response First and foremost and obviously all the numbers aren’t final yet, but so far, and right as of this moment, vote by mail was the top method of voting used in this election cycle So those numbers, once everything gets finalized it’s probably gonna be slightly under 50% of the vote which is double what 2016 was, more than double So vote by mail was kind of the method of choice amongst the electorate across the board, in frankly almost all states I mean, it was high in everywhere around the country The other thing is what a lot of people forget is every single of the 50 states have had a vote by mail program in place dating back to the civil war So a lot of people kind of think this was a new concept, this actually wasn’t a new concept, this has been utilized widely But what that brought given that sort of big surge in a lot of states that had 5% vote by mail, and now they suddenly jump up to 25 or 30%, that introduces a whole different set of complications And what I mean by that is sometimes the operations may not be ready to handle that influx of volume, especially in larger jurisdictions where that might be very impactful to them from a staffing perspective, processes like requesting the ballot So in a lot of states you have to file a request every single election So that meant, in some states that had three elections this year, that meant that voters had to fill out a piece of paper three times or do it online three times, and then that also means election officials have that extra volume of data entry work And so we saw a lot of issues kind of pop up in what I’ll call vote by mail operations like that because the system has never experienced as much stress in a lot of states before this year And so that introduced a whole set of issues that I think we can learn lessons from, but also it also highlighted the importance of some of the policy objectives that groups mine and certainly election officials around the country have been pushing for in terms of reform The other sort of just to speak to the customer experience

in that side of things, because we had so many people vote by mail and also choose to vote early, well over a hundred million people voted before election day, election day itself was really calm compared to what we saw in 2018, what we saw and even some of the primaries, and what we saw in 2016 So we saw a massive sort of with the incline of vote by mail, we also saw a big decline in really long exorbitant lines on election day And that’s a good thing for democracy, that’s certainly a good thing when we’re in the middle of a global pandemic And so as lots of experts have tried to figure out why do lines happen and how do we solve for lines over the last 20 years? I think we know what it is It’s voting as many people as we can prior to election day to try to avoid that extra stress on election day The other thing related to vote by mail operations that popped up in terms of this year, is the importance of allowing election officials time to process those ballots in advance Most states expanded this greatly, this year many states that didn’t allow that before, or had shorter windows actually gave election officials more time to process ballots There were a few key states that did not, namely Wisconsin, Pennsylvania, and Michigan unfortunately only gave one day to their counting clerks And in all of those states this topic has actually been a policy discussion for more than a year Many of us that work in this space have been pushing for this technical change, it’s not a partisan change, it’s a technical change, that would have frankly avoided some of the dramatics that we had with the next day, more mail ballots getting added to the rolls, and some of the misinformation around that, Pennsylvania taking till Friday to get the bulk of their ballots in All of those issues could have been avoided with a simple policy change that legislators refuse to do And that kind of highlights, I think a theme of 2020 which is some legislators actually responded to the needs that election officials were articulating in terms of the pandemic, but also the expansion of vote by mail and others did not Others failed at their responsibility in making sure that election procedures and laws were clear And that actually created a lot of situations where litigation ended up being necessary because there was not clarity in the law So I think this is another, a theme at least that’s sticking out very clearly to me, is that we in the United States uniquely, compared to the rest of the world and modern democracies, give a lot of power to our state legislative bodies to set the rules sort of play referee And the chief election officials also have this role, but sort of play referee, set the of engagement even though they’re the players in the game, and they’re trying to impact the outcome of the election with the procedures So I think long-term there’s also a governance question here about who sets the rules when that happens? How does that work? And how do we sort of build trust back in the system, because that’s very much been deteriorated The other couple of positives that came out of 2020 that I wanna highlight, ballot tracking was used more widely across the country than we’ve ever seen before And that was a technical customer service related item that we worked on heavily with states We worked with California, Nevada, North Carolina, Georgia, Michigan, Virginia, all expanded ballot tracking, Colorado also did ballot tracking first time for the entire state That system was created way back 10 years ago now in Denver and piloted for the first time And to see that expand like it did across the country was very significant There’s also another level of ballot tracking kinda down from the Cadillac version, which is the full communication tool, but there’s another way that states expanded this, and that’s just creating more online portal opportunities for voters to request their ballot and then subsequently sign up for ballot tracking So that added more transparency and accountability and enhanced security of vote by mail in the process So we wanna leverage what happened that was really great in 2020 and move that forward One of the other things that we worked on heavily was transparency, So making ballot operations more transparent, and we put out a document in coordination with the Carter Center that outlined tips for election officials to make their operations more transparent, make the election process more transparent, because we know that that’s one way to fight mis and disinformation, is to invite the public into a very public process So seeing Philadelphia, for instance, stream their operations online, in Maricopa County, in Orange County, California did this, Denver did this, Seattle had done it for a while A lot of offices really did what they could to make their operations more transparent And that introduces a whole new thing

into the election process that hopefully we can continue to advance, because I actually do believe it helps in a tremendous way for bringing the public in so they can see these operations Finally, disinformation and misinformation is again, just like it was in 2016, just like it was in 2018, one of the still greatest challenges that we have And a lot of security experts sort of look at our very decentralized system, and many have said, “Oh, that that has made our system “less vulnerable to foreign hacking.” I agree with that on the kind of technical equipment side of things and sort of the system side of things, but I disagree completely in terms of policy, procedures, and standards in terms of voter access And what I mean by that is the differences with voter registration deadlines, the differences with vote by mail procedures, the differences with prepaid postage or not, or drop boxes or not, or can I drop off a ballot at my polling place or not? All of these things varied across the country in every state And that actually introduced, I think, a bigger opportunity for nefarious actors to create disinformation campaigns and confuse the public because of these variant procedures So I think we really have to have a discussion about how we can create better and more consistency, so that voters aren’t left out of the process in one state but then have access in another, because it just sort of continues to demoralize and also create distrust in our system when things vary so greatly from state to state So that’s all I had to share, and again, thank you for having me here, and I really look forward to the discussion and questions – Thank you very much, Amber Okay, so I’m gonna move on to Arturo Vargas So my question for you is from your perspective, the work that you’ve done and do with your organization Please talk about the impact of this election cycle on voters themselves, in particular, of course, voters from historically underrepresented marginalized groups, the Latino community, and how does trust and legitimacy impact voters ability, their willingness to engage in our electoral system? What’s the connection there please? – Yeah, well, first of all, Mindy, thank you for the invitation to join you today for this conversation And this was a historic election for a whole number of reasons, but especially with regard to turn out and participation by Latino voters Much have been made about the fact that this was the first presidential election in which Latinos who were eligible to vote actually made up the second largest segment of the potential electorate, with about anywhere between 30 to 32 million Latinos being able to vote And we at NALEO Educational Fund had projected that 14.6 million would vote Which would be a historic number, but still if you do the math, that’s less than half of the eligible But what it isn’t, is less than half of those who are registered In fact, when you look at registered voters, turnout rates for Latinos, very closely parallel to other voters in the country In this election, we saw historic turnout We based on what we have seen in the numbers think that when we get the final accounts of how many Latinos voted, we’ll approach 16 million Latino voters in this election Making them more than 10% of all voters in the country, which is just extraordinary So for one thing to keep in mind then is that the Latino electorate is becoming a very significant portion of the American electorate So the views of Latino voters are going to more and more with every election cycle influence overall election turnout And how Latino saw this particular election I think it was very important One of the things we did and the Naleo Educational Fund is conduct a tracking poll of Latino registered voters for the nine weeks leading up to election day Every single week, we worked with the polling from Latino Decisions We surveyed 400 Latino registered voters, week five we survey 500, these are 400 different voters every single week In week seven we added a question because of the whole conversation about what would happen with the transition of power How concerned are you that there would not be an orderly transition of power should there be a change of administrations? So we started asking that in week seven So we asked it for three weeks, so a 1500 or 1200 Latino registered voters,

consistently, every single survey, two thirds of Latino voters said that they were very concerned that there would not be an orderly transfer of power I just find that really disconcerting that such a significant portion of the Latino electorate was so concerned that we would not have what this country has enjoyed virtually its entire history, is that transition of power, especially at a moment when Latinos were becoming such a large segment of the electorate I’m confident that we’re gonna get to January 20th, we’re going to have a new administration take over, and this country will survive this tumultuous period But we wanna make sure that Latino voters stay engaged in this process The other thing that was remarkable about Latinos in this election, was the number of young Latino voters who participated Traditionally young voters regardless of race or ethnicity vote less than older voters We saw something very different happened in 2020 By tracking the early the votes, Latino voters ages, 18 to 29 were the second largest segment of people voting early In 2016, 12% of our early voters were young voters ages 18 to 29 In 2020, 22% of our early voters were young voters In fact, overall 10 million Latinos voted before election day, which is another reason why we think we’re going to easily surpass our projection of 14.6 million voters in this election So going forward I think the challenges we have is, how do we ensure that Latinos voters who were voting for the first time stay in the electorate and they vote in off year elections, that they vote in the mid-term elections, and they vote in 2024, that we keep them as active voters And that means that it’s gonna require engagement by candidates, to political parties, and nonprofit, and civic organizations That’s another thing that we asked in our tracking poll, how frequently they were being contacted by candidates, and political parties, and organizations, and disappointingly every single week and all the way through week nine fully a third of Latino registered voters said that no one had reached out to them And that is really what’s going to make the difference between somebody who participates and doesn’t is being engaged in the process Making you feel like your vote actually matters, that someone’s not taking you for granted And I think those are the challenges that we have before us, but I think we have a tremendous foundation to work from in terms of 2020 Just in terms of the experience of voting by mail or VOTING from home, we were very concerned going into this election because Latinos overall, were before this election less likely to be voters by mail than non-Latinos And so for many of them voting by mail was a first time experience, even for our frequent voters So we did everything we could along with our sister organizations, to make sure people had the information of how to vote correctly by mail so that their boats will not be disqualified You know, it’s not necessarily an intuitive process Fortunately it seems like it worked and we were able to engage folks so that again 10 million Latinos voted prior to November 3rd And I think that is something else to build on, is how do we continue using these voting methods so that people feel comfortable and informed about voting So I’m optimistic about where this election has placed us despite all the challenges that we’ve encountered It shows that our democracy is strong and as Latinos become a larger segment of the electorate we’ll continue to influence outcomes of elections And I’m just excited about where we are in terms of the performance of Latinos this election cycle – Thank you very much So the peaceful transition of power is a fundamental element, right, of course, of both a stable and durable democracy And I know that all of you this far have in in your comments talked about to some degree solutions kind of going forward If I ask you now to just kind of frame, the next question is gonna ask you to frame your thoughts in terms of the short-term and the long-term,

kinda break it down for our audience So as you see them, what are the short-term and long-term challenges? Specifically challenges that we can talk about and how to address that, to a peaceful transition of presidential power in the US This cycle, possibly beyond the cycle, given what has happened and where we’re at now Related to that, again, the solutions what can or needs to be done to strengthen the critical element of democracy? So the short-term and long-term challenges and what can we do? Who would like to take that first? It’s for all three of you, from your perspective – I can start So I think one of the things that we’ve learned through the Trump presidency, is not just in terms of this election but generally is how much of our system depends upon norms of conduct as opposed to hard legal rules And in particular, in the context of a presidential election, it took me maybe three or four minutes to explain how we choose the president because it’s so complicated, compared to everybody votes and whoever gets the most votes wins You can’t say it like that, it’s this process And in that process, there are lots of opportunities for mischief to be made So for example, the certification of the vote is something that is pretty much automatic when there’s not a serious dispute about who’s won the election And yet we saw in Michigan at both the Wayne County level and at the state level that there was a question as to whether or not some of the Republican members of the canvassing boards were going to actually vote to certify the votes even though under the law it appeared to be an act for which there was no discretion Now, fortunately, there were people who acted with integrity who did not listen to the President’s in treaties that they should not follow the law or bend the rules Similarly, you did not see state legislatures at least not yet tried to appoint alternative slates of electors But there’s so much potential for mischief built into the system And one of the things I think we need to do when this whole process is over, is do a kind of inventory of all the places where there is discretion, and try to eliminate that discretion to the extent that what we’re trying to do is have something automatic One of the things we talked about even before this election is the possibility of a faithless elector So we vote for people who are members of the electoral college, they then vote for Biden or Trump, whoever they’re assigned to, but they’re human beings and we have had in the past a few of them go rogue and not vote for the person they were assigned to Those people are just essentially figureheads and they should not have that kind of discretion And so I think we need to go through and think about all the ways of eliminating unnecessary discretion in the system and make the choice, go from what the voters actually chose and in an election where it’s clear who the winner is as this one is, to actually calling the election and officially making that election certified for that person and make that as seamless a process as possible I think that’s gotta be one of the top jobs going forward – Thank you – And I would add, so there’s a couple of things I think, trust in the process And I always say this elections are just as much about declaring a winner as they are about convincing the loser that they in fact lost And with the misinformation disinformation all of this is, is sort of influencing and we’ve already seen a deterioration of trust in the process by those that aren’t happy with the outcome And so people’s satisfaction with the voting process and the election process is very much tied to whether or not their guy or gal won or lost And we have to figure out, I think we have to dive deep into that sort of data, find out from people what about it is that creates this sort of distrust, what would help them get past that? And how do we build a better model for that trust to be built? And one thing that I’ve talked about for many years being a former local election official, I have been affiliated my entire life I have believed in never endorsing anybody, never publicly talking about what my opinion was politically as I was running elections And I’ve maintained that even into my nonprofit life and I really do think that we have to think about the governance of our elections So from the federal level, what is the federal’s role?

What does that look like? I constantly saw things in this election cycle about the federal election commission, stepping in on election administration They don’t have anything to do with election administration They have to do with campaign finance but not elections So there’s this sort of, I think confusion with the public of what is the federal’s role in this process? What is the state role? And what is the local role? And to dive deeper into that, I think the other thing that when we look at the state and local election officials, if they’re running for office to get their job, if they’re a secretary of state that’s the Democrat, the Republicans are never gonna trust them If they’re a Republican secretary of state, the Democrats are never gonna trust them And so there’s sort of back and forth that puts these elected officials in frankly an untenable position It’s not realistic for them to run a technical process but yet have half of the people that don’t trust them because of simply their party affiliation So, I truly do think we’ve got to think about whether or not that kind of model makes sense Canada has a different model They have a Chief Electoral Officer, they’re non-partisan, they have very high standards about whether not they can be involved at all in any political campaigns and whatnot So I think we have to think about how we de-politicize what should be a technical process And that goes down to the local level too because a lot of these local clerks were, or some of them in some states were running for office on the ballot, that puts them in a very difficult situation when they’re on a presidential race Some weren’t, some are hired, some are nonpartisan, some are partisan And I just think we’ve got to have this discussion ’cause I do think that the politics, this sort of gets introduced into this process that should be technical, creates a lot of these challenges with distrust And then the second thing I’ll say and I said this in the opening remarks, is this inconsistency of rules across the board I think is contributing immensely to the disinformation and misinformation And so, at the federal level, we already have made certain within the National Voter Registration Act, the Voting Rights Act many years ago, the UOCAVA and UMOVA, as well as the Help America Vote Act We have put standards in place at the federal level not to tell states how to run elections, but just to simply provide standards for which voters can access the ballot in the franchise And so I think we do absolutely have to have a national discussion about those standards And I think that’s a short-term and long-term challenge to get past this trust in the election process that has been deteriorated by some of these post-election controversy – No, I think that’s an important point about this need for national standards, we run a hotline where we’re taking calls from Latino registered voters across the country We’re part of the election protection coalition and we’re virtually open 24 hours on November 2nd and November 3rd, and did quite a bit of media work and Spanish-language television having to explain to people that in this country there are really 50 different voting systems, because there’s 50 different states And what is happening in Texas is not necessarily the way the elections are run in Colorado or in California or in Florida And to be able to have a consistent message to your audience is really a challenge when you have all these different systems In terms of from the Latino Electorate’s perspective, I actually think that there’s gonna be a significant burden on the Biden administration that will be taking office to be able to demonstrate to first-time Latino voters that their votes actually mattered And one of the big challenges we had after the 2008 election was there many first-time Latino voters who felt that President Obama did not deliberate some of his promises where there was an immigration reform and this whole notion that, “Okay I was told I needed to come out and vote, “this is the most important election of my lifetime “And if I vote, this is going to happen “in terms of this policy change, and it didn’t.” So I think there’s a real pressure now on Biden that this does not happen again, especially since he was Obama’s Vice-President So I do think there’s a significant pressure on President Elect Biden to deliver on some of these campaign promises that he did that Latinos were particularly interested in And by the way, the number one issue that Latino voters identified in this election cycle

was the COVID-19 pandemic And that in itself, I think is a reflection of how COVID-19 is disproportionately affecting Latinos in the United States And they really wanna see a government deliver policy solutions now that they have voted And I think we need to make that connection that if you vote, there are results that affect your lives And that’s going to be, I think huge in having people actually trust our election system and our democracy – Thank you very much all three of you I’m gonna go ahead and move us now into QA We’ve got a number of questions that have already been submitted here through the Zoom platform We are also streaming this on Facebook and we’re open on Facebook monitoring that also if you have a question and you’re viewing us that way please feel free to let us know So for the first question I have here, this actually is from a USC colleague, Dr. Christian Gross, who was one of our panelists on our last session He’s got a question for Amber and he says perhaps Rick and Arturo as well He says, “Amber mentioned differences “in election procedures in local counties,” of course, wider conversation there as well, “but mentioned differences “in election procedures in local counties “and how that creates potential inquiries “or inequities excuse me, in voter access, “this could equal protection “What are some state level or local level policy solutions “or litigation strategies to make voter access “similar across counties “within states and or across states?” So he’s asking that equal protection question and again, how can we address that? What are some of the solutions in litigation? – Sure, well, I think that one of the things that we need to do is have a comprehensive conversation about what are we gonna do at the federal level and then what is gonna happen at the state level? And I’m a big fan of minimum standards And when we rewrote our laws in Colorado in 2013, we wanted to have minimum standards for vote centers, as an example drop boxes, and we put formulas on the box and in place to create that minimum standard And the main reason for that is without that, a county like Denver, that’s almost the same size as El Paso, Denver may put 45 vote centers out, and El Paso may put 15 even though they’re the same size county And so with the minimum standard, you’re at least ensuring that voters across the state have consistent standards for access, boxes, vote centers, all of that And then Colorado also, I think, and some states have also done this, Colorado has one check-in system for the entire state, it’s tied to the voter registration system and so that enabled us to streamline that even just the vote, the in-person check-in process across the board, every county use the same form We trained to it, we created processes and procedures for all the counties and so that everyone was consistent and everyone knows what that looks like Similarly, we, by moving to a different policy on the box, we also then went to buy a new voting system So built the technology to support the policy And now 62 out of 64 counties use the same voting system that enables, number one, sharing of resources about procedures and training and all of that but enables the state to codify rules, put out training materials in a more consistent way So all counties are experiencing the same thing When you have all of these different voting systems that might have different standards for auditing, that might have different interactions for the voter at the place that that just creates difficulties in the administration of the elections One voter might see a hand marked paper ballot, another voter might see a machine And so that just creates this sort of confusion if you will, amongst the electorate And then I think prepaid postage is one that I think we should be paying at the federal level Right now some states pay it, some states don’t It just creates a nightmare and it creates a nightmare at the post office level because people go into the post office and they’re like, “Do I need to pay, do I not need to pay?” And they’re trying to figure it out So there’s sort of, there’s some things that I think nationally we should adjust, not to tell states how to run their election necessarily, but just put the minimum standard so that voters have protections and have a little bit of consistency across the states And then, have that discussion of federal versus state versus what’s local to get this right – I would add that we saw some of this come up

in some of the litigation after the election Where for example, the Trump campaign alleged in Pennsylvania that the secretary of state of Pennsylvania had issued some guidance about how voters who had sent in up to two ballots before the election that had mistakes, like they forgot to sign their ballot whether they could be contacted in advance to fix it, to cure it beforehand And the guidance said that, yeah you can reach out to these people And one of the claims that Trump campaign made was that because some counties decided to do this and others did not, that this was somehow a violation of equal protection And they cited the 2000 case of Bush versus Gore, which was the case that ended the dispute of 2000 election in part because there were different standards that were used for the recounting of votes across the state of Florida And in rejecting this argument, the judges that had preached it seemed to say, “Well you can’t have local variation, “and this doesn’t create an equal protection problem.” Now, whether that’s how the US Supreme Court would ultimately see it or not, I do think that there are certain, I agree with Amber, there should be certain minimal requirements I don’t see a benefit of having some jurisdictions allow voters to cure balance and others not I think that should be a uniform thing that everyone should be able to cure their ballot I also think when we think about uniformity, I wrote a piece in the university of Chicago Law Forum, I think it was back in 2015 We should not be thinking about uniformity across counties as much as uniformity among voters And so if you have a county that’s much more populated, it has five times the population of another county, it would make sense for it to have five times the amount of drop boxes say Or if there are parts of the county that are more densely populated, it make sense to put more drop boxes there And so I think we need to think not necessarily as a legal matter, but as a matter of equity and fairness about how to assure that there is rough consistency in voting opportunities for voters across the state And of course, offering voters a number of easy ways to be able to cast a ballot and to register to vote is a key part of that – And Mindy lemme add one more really quick ’cause I thought I should have mentioned this The other thing that popped up in this election, more people use a hand marked paper ballot than ever before in any election And with that, if you don’t mark the ballot, so if it says, fill in the bubbles and you don’t fill in the bubbles and you instead circle, you’re gonna create voter intent issues So voter intent has also become a very important topic in this election cycle and it will continue into the future But when a state does not have standards for voter intent and how that mark is determined across all counties, and there ends up being either a statewide recount or a jurisdiction that has shared districts across counties, that can become a very big problem legally So voter intent is another one of these issues that has become very important this year I think it’s something that a lot of states need to actually improve on They haven’t had a lot of hand marked paper ballots until this year and so that is something that definitely we need to have a broader conversation around And I think a lot of states will be looking at that issue going forward – The only thing I would add to this is to ensure the need of accessibility in terms of language access A quarter of the Latino electorate is foreign born, meaning they’re naturalized citizens and many of them take advantage of a ballot in Spanish and there are no federal standards and the Voting Rights Act afforded local jurisdictions to provide language assistance And much of that language assistance previously had been provided in person through bilingual poll workers Now you’re going to need to make sure that, and these paper ballots that Amber just referenced, that they’re fully accessible in non English languages where they’re required And that’s an extra burden especially for jurisdictions that are doing vote by mail at a significant level for the first time – Thank you all very much Arturo since I’ve got you here, I’ll give you the next question It says here, you’ve probably got this many times already since election day, but the question says, “How do you account for the fact that Republicans “seem to have gotten a significant number “of Hispanic votes in this election?” – So consistently in our tracking poll, Biden was getting anywhere from 65 to 70% of Latino registered voter support And President Trump was getting consistently between 22 and 26% I think when we look at the final numbers,

that’s about where it ended up with two thirds of the Latino vote being for Joe Biden and less than the third like about of 27, 28% for President Trump Where there was a significant shift was in South Florida We did see a major shift in support, not just among Cuban-American but also among other Latino national origin groups I’m talking here about Venezuelans and Colombians Many of the messaging about Democrats being socialists really hit the waves in social media And the Democrats and I have a good answer to that And it really stuck and it actually led to some coattails that the President had, and the loss of some congressional seats in South Florida Now, the other area where we saw some inroads was in some counties in Texas Overall statewide I’ll say, remind everybody that Biden did win the Latino votes statewide in Florida, and he won the Latino vote statewide in Texas There was a handful of state, of counties, I’m sorry, in South Texas, where there was some significant shift again to President Trump And I think that goes to the fact that there was some investment by the Trump campaign in those areas And it goes to what we’ve been saying for years and years is that you can’t just assume Latinos will always vote a particular way If you go out and you talk to Latino voters, you understand their priorities, you’d learn how to convey to them, the messages that resonate with them You as a Republican can hassle margin of success And if you don’t do it as a Democrat, you may end up just leaving bolts on the table You have to fight for the Latino vote – Thank you Next question is for Rick Hasen So, actually I’m gonna read the whole statement because it gives a nice plug for your election blog which everyone should know about So it says Rick Hasen runs the election blog which is a terrific resource, so thank you to him, “You said you’re confident “that we’re on track for Biden to be president “Now that a house representative has publicly said “he’d be willing to challenge the electoral college vote, “if you can find a senator to join him, “what do you think will happen?” They want you to specifically address that – Sure, so I should say that I’m not as expert on the detailed procedures in Congress as some of my other electoral colleagues, I would point to the work of Professor Ned Foley of Ohio State and Michael Morley of Florida State who have studied these issues in more detail But I can speak generally to this I don’t think we’re going to see any states actually have state legislatures try to submit alternative slates of electors I think this is a move that would provoke a tremendous backlash It would provoke national protests, it would be explosive And we’ve heard legislators, Republican legislators in Pennsylvania and Michigan and elsewhere reject the idea that this is going to happen So if there is a protest, but there are no Trump slates from the states, the protest won’t go anywhere I also suspect that even if Republicans continue to control the Senate, even if you had a rogue senator agree to some kind of protest with Representative Mo Brooks who said that he would engage in this, it’s not going to go anywhere It would get trickier if there were alternative slates of electors and then you get into all kinds of weird imaginations But remember for this to even plausibly have a chance of working, it would have to involve not just one state but at least three states that would make up enough of Biden’s Electoral College majority for this to actually have an effect on the outcome of the election So I understand people are still nervous and it’s not over till it’s over And there are still lawsuits and there are still attempts to do this but every day that goes by as we get closer to first, the Safe Harbor day on December 8th, and second the meeting of the electors on December 14th, and third, the actual counting of those ballots by Congress on January 6th, the harder it is to see any plausible path for this to happen And that’s why I expressed the confidence that I did – Thank you very much So we’ve got just four more minutes or so So maybe I’ll ask the person that might be most interested in this question to jump in, it’s up to all of you The question is, “Given that the party

“that has participated the most in creating “an environment of just information and barriers “remains in control of state legislatures “and potentially effectively the Congress, “what do you all see as the worst case scenarios “for building trust and access in the next four years?” So I’d like us to end on a positive note So if you wanna flip that around in terms of again where you’re coming from and what you think the likelihoods are in terms of the next four years But in answering the question, I guess, what would be the worst case scenario? Who wants to take that one? – I’ll start, I think the worst case scenario is that you have a refusal to have some bipartisan cooperation to deal with the pandemic, and to have both economic relief provided to Americans in terms of unemployment insurance and other kinds of COVID stimulus that we saw earlier And in dissemination of the vaccine in a way that reaches everybody If we have partisan gridlock and something so basic like that, that to me would be worst case scenario In terms of failure of government – McRey Amber – Well, I’ll just say that I think that while Donald Trump will be leaving office on January 20th, he’s going to continue to claim that the election was stolen or rigged And there are gonna be millions of people who are going to believe him despite all the evidence to the contrary And so I think it’s going to be a challenge for us going forward Whether Trump declares his candidacy for president in 2024, which he’s rumored to be considering or not, I think just like there have been Obama birthers, there are gonna be election truthers who are going to believe that the election system was rigged And I would say the number one thing to do about this, and I’m actually writing a book about this related question The number one thing to do about election integrity and false beliefs, is hold actually fair elections and be transparent about what you’re doing The kind of work that my co-panelists are doing to ensure that we have safe elections with fair procedures that people can audit That we have pieces of paper that can be counted and we can validate the ballot that everybody knows what the rules are in advance It’s not gonna convince the most ardent supporters of the president who think the election is rigged despite the evidence, but people who are wondering about these claims will be able to see what the record is and they will know that we’ve had a fair election And so I think the more we can do to have actually fair elections, transparent elections, the better off we’re gonna be – I consider that positive, spin there at the end Amber did you wanna jump in on this? – Sure, why I agree as I’ve said a couple of times I think transparency is the key to sort of educating the public and also pushing back on this fault, the false narratives and some of the conspiracies that we’ve seen pop up And we were talking about the record turnout and things like that which is awesome and everybody’s really focused on that But the other reality is that between 70 and 80 million people didn’t participate in this election That’s down from 2016, thank goodness, but there’s still this less than, we’re still less than 70% of voting eligible population participating I’m really interested in talking to those individuals and figuring out why they didn’t vote in the most highly anticipated $14 billion campaigns spend election because I think that they will also hold the keys to a lot of ways that we can continue to make sure the system is not only accessible and fair, but also secure and election security is a top issue for voters of all party and partisan stripes And building trust in our system has to be about all of those things It’s not, I say this all the time, election administrators and folks that run elections, they don’t have the luxury of being just focused on election security or just focused on accessibility or just focused on fairness They have to balance fairness, accessibility, security, transparency, efficiency, and reliability, all those things Now there’s not one that’s more important than the other, they’re all important And so that’s a very challenging circumstance to do that I think the other final thing I would say is this election demonstrated a complete lack of understanding of elections by many different people So politicians, campaigns, lawyers, and frankly the voting public And so I think we have a really upward battle and a lot of people kind of think that voter outreach and communications is just something that is extra I actually believe it’s a core foundational principle

of any good election office that they have to invest in the election official being the one to communicate what this looks like And most election offices don’t have the resources to do that So when we talk about funding of elections and all of this, we need to include public education and voter education from the official sources, not campaigns, not third party groups, none of that We have to have the official sources of information being the ones to invest in education around this issue – Thank you, so what I hear depending, you wanna consider it a positive view, a negative view, rosy view, whatever, all of you are saying that we have a lot of work to do, moving forward, period For this election cycle and beyond So thank you very much, panelists, Professor Rick Hasen, Amber McReynolds, Arturo Vargas for joining us today, everyone that joined us on Zoom and on Facebook as we were streaming on Facebook I wanna give a quick thank you to my USC communications team on our call today, both Harley and Katie, as well as my Center for Inclusive Democracy, colleague Veronica who’s been our Twitter extraordinary, or Twitter queen or whatever you wanna call her, but she’s been sending all those tweets out Future sessions, you can join us on January 7th The topic of that session is Moving Beyond Polarization in the US And also last in the series, February 7th, 2020, turnout record, question mark, we know it was the highest, certainly in decades Is this the new normal or maybe a subtitle would be, how can we make it the new normal? So join us for those conversations Thank you everyone very much Have a great rest of the day, take care