John Blomster: Welcome to DISCOVERY, a UW law podcast where we explore today's biggest legal topics with the law school’s distinguished guests and experts from around the globe. I'm John Blomster. And today we welcome on a very special guest. We are joined by Ron Fein, legal director of Free Speech for People. Free Speech for People is a nonpartisan, nonprofit public interest organization that challenges big money in politics, confronts corruption in government and fights for free and fair elections and advances a jurisprudence grounded in the promises of political equality and democratic self-government. Ron has spearheaded litigation legislation and advocacy efforts in service of that mission. And he's joining us today to talk about one of, if not the most important, issues right now facing our country. And that is access to the ballot box. So, we've been really looking forward to discussing this subject. So, Ron, thank you very much for joining us today.
Ron Fein: Thank you. It's my pleasure.
JB: So, first off, can you tell us a little bit about the overall mission of free speech for people and the kind of work that you do as part of the organization?
RF: Free Speech for people is a national nonpartisan, nonprofit organization, we were founded in January 2010, on the day of the Supreme Court's ruling in Citizens United v. Federal Election Commission. That's the decision that unleashed corporate spending in our elections and set the stage for further court decisions that have only expanded the role of big money in politics. And since then, we have expanded our work to address the evolving threats to our constitutional democracy, including in 2020, the fight for a free and fair elections.
JB: So, here on the west coast, we're used to the full vote by mail system, and this is particularly important to discuss amid the COVID-19 pandemic. But in several other states, as you've pointed out, there are significant challenges that voters face when it comes to being able to vote by mail. So, what are some of those challenges? What are the some of those issues around the vote by mail that we should be aware of?
RF: States like Washington and Oregon that have had vote by mail for a long time, and have made it universal, have made it easy, but in most states in the union, until quite recently, voting by mail was an exception for which in most cases, a voter would need a special excuse, an excuse like they're going to be out of state on election day, or they have a specific physical disability that prevents them from getting to the polling place. In some cases, voters are required to have a witness application for an absentee ballot, as it's often called.
Now, with the pandemic, there's a tremendously increased demand for the ability to vote by mail so that people don't have to spend hours potentially standing in line at a polling place, and exposing themselves to potential infection from other voters, poll workers and even the voting equipment. In some states, they've made that easier. In some states, not as easy. And so part of Free Speech for People's work over the past few months, as well as that of many other organizations has been to try and make sure that the experience for voters, whether by mail, or in person, is safe and effective and allows a free and fair election.
JB: There is a narrative that is being pushed and rhetoric around the security of vote by mail and that it enables election fraud, voter fraud. Are these claims substantiated? Why is this an argument that the Trump administration is pushing that some other pundits are talking about? Is this credible? Should we be concerned about the vote by mail system?
RF: The history of voting by mail over decades shows that there is only miniscule voter fraud that comes through voting by mail, just a small handful of cases. There are far more serious threats to the integrity of our elections, including hacking of electronic voting systems that are a far greater concern than the potential for fraudulent mail in ballots. So, when President Trump is stirring up fears of fraud about voting by mail there's really no basis to any of that, it's been repeatedly debunked.
JB: So, in terms of those credible threats, it's been proven by the intelligence community. We know that foreign governments are influencing our election or trying to influence our election. What can we as voters do about it to protect ourselves, to be aware of what's happening, to be aware of the information, the disinformation? How can we preserve our integrity as voters in this critically important election?
RF: That's a really good question. Unfortunately, there's not a simple answer. And part of the problem is that there are many different threats to the integrity of the election. One is, as you mentioned, issues of disinformation, some of which is coming from foreign sources, some comes from domestic sources. And in all cases, it gets replicated by our social media infrastructure, which has been horrendous in terms of promoting the most virally disgusting, in some cases, disinformation or misinformation, rather than actual factual information.
There's a separate category of threats to our election integrity, which come from threats to the voting machines, and the systems that are used to tabulate votes themselves. And there are repeated intrusions into these software systems by foreign actors. But it's also worth noting that any software has the potential for bugs. And so even if it's not a malicious attack by a foreign intelligence service, or a disgruntled ex-employee, or for that matter, a corporate insider aiming to help a particular campaign, the fact is that software and hardware can be buggy. And so the reliability of that type of electronic voting equipment is often questionable.
So, what voters can do right now, first of all, as they say, make a plan to vote. And whether you're going to vote by mail, as certainly in Washington people will be doing generally, or in person, have your vote ready. But then also be a skeptical consumer of information coming from sources like Facebook and Twitter, and from websites that are not coming from a factual reputation that’s beyond repute. And then finally, to support reforms that will be necessary in the future to make for a secure election administration system. This is something that is often treated as an afterthought, it's left to the discretion and budgets of county elections boards in most states, and there's very little federal reliable infrastructure or standards to make sure that our elections are safe and secure. And that needs to be dealt with not just in an election year, but at all times.
JB: With some of those, the more political voter suppression efforts, you know, you hear you see closing of polling places, making it more difficult for voters to vote, why would anyone who is a part of our American democratic institutions and our politics be incentivized to make it harder for people to vote?
RF: I don't want to give the credit to people who are trying to make it harder to vote as if to say they have anything other than a motivation to their own political power and advantage. And the measures that are taken to make it harder for people to vote, particularly voters of color, are generally partisan in nature, with no neutral justification as part of election administration or necessary for election integrity. What's important is to recognize that we are all citizens with an equal voice and an equal right to participate in the political process. And that every voter has the same right to influence our elections, and that in order to have that influence, you need to be able to vote in the first place.
JB: Absolutely. So, moving into to the action part of the discussion. So, you mentioned that there are literally hundreds of lawsuits underway focused on issues in this space and Free Speech for People is again, as we mentioned, on the frontlines on a number of fronts. So, I'd love if we could talk about a few of the lawsuits that are in effect right now. And so I know that we have a number to go through. So, could you kind of give us an overview of the various issues that you're focusing on and overview of what those specific actions that are being taken right now?
RF: Absolutely. Free Speech for People as well as other nonprofit organizations, and in some cases, others have brought a series of lawsuits related to the election in different states addressing different issues. But I wanted to give you a sampling of some of the cases that we've brought.
One case in Arizona just called Mi Familia Vota v. Hobbs challenged the state's voter registration deadline. It’s an unusually early voter registration deadline, voters have to register about a month before the election. But in the pandemic, when people were under a stay-at-home order for much of the year, voter registration ground nearly to a halt. And we sued for seeking an extension of that voter registration deadline and were able to get an extended by 10 days, during which 35,000 citizens who had not been registered to vote were able to register in time for the 2020 election.
Another lawsuit that we've brought is in Texas. This is called Mi Familia Vota v. Abbott. Mi Familia Vota is a organization that promotes voter engagement primarily in the Latino community. In this case, which is in federal district court right now, Mi Familia Vota, represented by Free Speech for People and our co-counsel, are challenging the governor's mask order, which exempts polling places. In other words, the governor of Texas has required masks in nearly all situations, but has specifically said that people at the polling place do not need to wear masks. And what that means for voters who are concerned about their own health is that when they go to a polling place, they may be surrounded by people who refuse to wear masks. Can't do that at the grocery store. You can't do that in the bus. But at the polling place, you may be stuck standing in line surrounded by people who are opposed to masks and don't want to wear them and in some ways are the people most likely to be infected with a virus for that very reason. And given that, you know, voters who are those served primarily by Mi Familia Vota, black voters, because the Texas NAACP is another plaintiff in this case, already faced a heightened risk of exposure and disease from the COVID pandemic, it's particularly important for them to be able to vote safely in person. And as we know, the purpose of a mask is not so much to protect the person wearing it, but rather to protect everyone else. And so we're seeking the governor's order to stop excluding the polling places from the mask requirements.
We filed a lawsuit in Minnesota in federal district court on behalf of the Council of American Islamic Relations and the League of Women Voters challenging a private mercenary company called Atlas Aegis that posted an ad recruiting ex-Special Forces veterans, elite soldiers to guard polling places from so called antifas. And this ad went around the nation and was reported in national media and in Minnesota media, where they're seeking these elite Special Forces veterans to stand, presumably, menacingly near the polling places and do we're not quite sure what, but it's certainly intimidating for many voters, particularly voters of color and voters who may have immigrated from countries where military involvement in elections was a problem. You try and go to the polling place and you see burly men in camo standing there with semi-automatic rifles, it can be extremely intimidating for the voters as well as the poll workers.
We also filed a lawsuit against President Trump, Attorney General Barr and acting Department of Homeland Security Secretary Chad Wolf, and this lawsuit charges them with voter intimidation under the Voting Rights Act. Because Trump, Barr and Wolf over the past several months, have engaged in a month’s long campaign of threatening to sabotage a free and fair election, discrediting vote by mail, threatening to send poll watchers and sheriffs and law enforcement to intimidate voters. And even rejecting the idea of a peaceful transfer of power and accepting the results of the election. And taking together this conduct intimidates voters in violation of the federal Voting Rights Act.
JB: And like you said, this is just a sampling of the work that you've been doing. And just it's incredible how many different angles one can approach this issue from. I guess my last question is, I feel like this election feels that we're talking about voter suppression and all these issues that go into it more so than any election that I have witnessed, you know, given the national rhetoric given the Trump administration's efforts. Do you feel that there is a flip side to that, but there is a groundswell of activism and awareness that paves the way for the kinds of reforms that you're seeing? And is there opportunity for voters to hope that these reforms will create freer and fairer elections looking forward into the future once we get past this?
RF: I think it's a great opportunity. And the American people have responded to these attempts at voter suppression by getting out there to vote and in some ways, it's disturbing, but in some ways, it's inspiring to see photos and videos of long, long lines snaking around the corner at the early voting that's already underway. It's distressing to see that people have to stand in line for hours in order to be able to vote, even during the early voting period, let alone on election day. But it's inspiring to know that they're committed to doing it. And these voters are not going to accept their right to vote being taken away very easily. And once we're past this moment, the American people understand when their rights are being taken away. And I think there will be a window of opportunity that we haven't had in a long time for fundamental reform to make sure that we can conduct our elections, more sensibly, more freely and more fairly in the future.
JB: Ron Fein is legal director or Free Speech for People, a nonpartisan nonprofit that among its many efforts, fights for free and fair elections work that is immeasurably important as we prepare for 2020 in one week from now. You can learn more about Free Speech for People and all the work they do at freespeechforpeople.org. And of course, on our podcast page at law.uw.edu. We'll have links to everything that we discussed here and more for you to take a deeper dive.
So, Ron, thank you so much for joining us. We really enjoyed talking with you today.
RF: Thank you. It's been a real pleasure.
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