Have something to share? Drop us a line at ontheissues@msmagazine.com.

Background Reading:

• LISTEN: “Episode 175: The President Has No Authority to Delay This Podcast,” The National Security Law Podcast, July 30, 2020.
• “We must save the USPS to preserve democracy,” Mikie Sherrill, Daily Record, August 18, 2020.
• “Delays Expected in Election Results as More Voters Opt for Mail-in Ballots,” Oliver Haug, Ms. Magazine, September 22 2020.

Take Action:

• Make sure your vote will count—check out this pandemic voting guide, and make a voting plan today.

Transcript:

00:00:00 Michele Goodwin:

Welcome to “On The Issues with Michele Goodwin” at Ms. Magazine, a show where we report, rebel, and tell it like it is. On this show we center your concerns about rebuilding our nation and advancing the promise of equality. Join me as we tackle the most compelling issues of our time. On our show history matters, so we examine the past as we pivot to the future.

On today’s show we focus on the question, can the President suspend the elections — and the answer is no. However, on Thursday, July 30, 2020, President Donald Trump sent out a Tweet. It stated with universal mail-in voting, not absentee voting he stated, 2020 will be the most inaccurate and fraudulent election in history. He went on to Tweet, it will be a great embarrassment to the USA. He urged, but with a question mark, delay the election until people can properly, securely, and safely vote, closing out with several question marks. 

With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???

— Donald J. Trump (@realDonaldTrump) July 30, 2020

Now this came just months after he and some others countered as ridiculous statements from Joe Biden warning in April that Mr. Trump might try to “kick back the election somehow or come up with some rationale why it can’t be held.” These commentaries raise serious questions about the authority of the President and the integrity of the upcoming elections. It is clear that the President does not have the legal authority to suspend the election. Article II of the United States Constitution provides that “the Congress may determine the time of choosing the electors and that it is Congress that chooses the day on which they shall give their votes, which day shall be the same throughout the United States.”

So what are the ramifications of President Trump suggesting that we suspend the election? Will access to mail-in ballots or lack thereof impact voter turnout? Can President Trump invoke martial law if he loses the election? 

Now helping me to sort out these questions and more, including how we should think about these issues, are very important and special guests. I’m joined by Karen J Greenberg. She is the Director of the Center on National Security at Fordham Law School and she is a permanent member of the Council on Foreign Relations. She’s also the host of Vital Interests Podcast and has written and edited numerous books including most recently, Rogue Justice: The Making of the Security State. It’s a great book, I highly commend it. 

I’m also joined by Professor Rick Hasen. He is Chancellor’s Professor of Law and Political Science at the University of California Irvine and a nationally recognized expert in election law and campaign finance regulation. Rick Hasen is also a CNN election 2020 analyst and co-author of the leading casebook on election law. He’s also the author of Election Meltdown so I highly recommend you read that book, too.

Now I’m also joined by Representative Mikie Sherrill. She represents New Jersey’s 11^th congressional district. Congresswoman Sherrill service as freshman whip for the new Democratic coalition and sits on the House Armed Services Committee and the House Science, Space, and Technology Committee. She is the Chairwoman of the Environment Subcommittee for the Science, Space, and Technology Committee. 

And last but not least is Professor Stephen Vladeck. He is the A. Dalton Cross Professor in Law at the University of Texas School of Law and a nationally recognized expert on Federal courts, constitutional law, national security law, and military justice. He is also the co-host of the popular and award-winning National Security Law Podcast. He is a CNN Supreme Court analyst and co-author of Aspen Publisher’s leading National Security Law and Counterterrorism Law casebook. 

Thank you all for joining us to discuss these very sensitive and often overlooked matters. Let’s start with a more general question and open it up to our guests. While the President doesn’t have the legal authority to suspend the election, what are the dangers presented by his continued efforts to undermine the election?

00:04:37 Mikie Sherrill:

Well, I guess I’ll start. Michele, this is Congresswoman Mikie Sherrill from the 11^th district of New Jersey and thanks so much for putting this important topic together. I’ve never seen… you know, I served in the Navy. For almost 10 years I worked for Democratic presidents and Republican presidents and I’ve also served at the US Attorney’s office as part of the Department of Justice. I’ve never seen a President of the United States suggest that in any way we can’t run a free and fair election, or suggest that he, and it’s always been he to date, would not accept the results of our democratic elections here in the United States. 

I think it’s a really dangerous thing for our President and a commander-in-chief to say to the American public that this is the heart of our democracy and if he feels there’s some problem then we as a nation should fix that, and that’s what we’ve been doing in the House is putting money behind our elections. I just had an election security bill pass the House, we’re continuing to hold hearings and make sure that we’re doing everything we can, we’re supporting the postal system to make sure that if states are running an all mail-in election like we are in New Jersey for the most part that people know and have confidence that their mail-in ballot will be receive in a timely manner.

So these are all the things we can do. The President unfortunately has chosen to do quite the opposite. He has appointed a Postmaster General that’s really taken away sorting machines for example in Philadelphia and throughout New York which impacts New Jersey. These high-speed sorting machines have really slowed down some of the mail delivery. The Postmaster General stopped overtime which slowed down our mail. He’s reinstated that after Congress held some oversight hearings.

And then we also have the concerns with the courts if the President starts to bring cases against how our election is run and that goes to the Supreme Court. I think that’s why so many of us are concerned that you know, when looking at the makeup of the court are they going to be a free and impartial court? Are they going to decide based on the merits? Is there going to be a partisan person put on the Court that is also going to be problematic for the decision in some of the election cases that might be brought.

00:06:56 Michele Goodwin: 

So what you’re talking about, and I’d love to hear from others about this, too, is that this exposes problems beyond just the election, too. And on your point with regard to the delays associated with the postal service, this affects people’s food, this affects medications that people get, I mean, this is not just about ballots. Though that is critically important, we’re talking about things that are fundamental to people’s lives.

00:07:23 Rick Hasen:: 

Yeah, this is Rick Hasen. I’m concerned about election day, election night, and the moments thereafter. You have a President who has been consistently claiming that mail-in ballots are ripe with fraud, making claims that are not supported at all by the evidence. This is causing many of his supporters to want to vote in person despite the pandemic and the risks associated with gatherings in person, while others, Democrats and others are more likely to vote by mail.

This means that we might see a more profound blue shift than we’ve otherwise seen, and what I mean by blue shift is that vote totals that come in on election day favoring the Republican with as additional votes are counted over the next days and even weeks, those votes shift to favor Democrats. We saw this happen in seven congressional races in southern California this kind of blue shift where Republicans were initially ahead and Democrats ultimately won.

The real danger with Trump, if Trump is ahead say in Pennsylvania and that’s the state that matters for the electoral college outcome, if Trump’s ahead on election night he could try to declare victory and claim that any votes that are counted after election day are fraudulent. He’s made similar kinds of unsubstantiated claims in the past. Of course, all votes that are received by the statutory deadline are to be counted and we don’t have official election results for weeks until after the election, but it could create a period of profound unrest and even you know, potential for you know, great social upheaval if you have the President claiming he’s won the election and his supporters believe it with those election officials announcing though, that in fact Biden has won.

And so I think we’re entering a volatile period and it’s really important for the media and others to caution everyone to have patience before election results are announced, and I know that social media companies are wary of premature declarations of victory and how that might play in the American public.

00:09:31 Michele Goodwin: 

It’s important that you mention that, the social unrest because we’ve already seen that this summer in Kenosha, we saw that in Oregon, but what was so horrific in Kenosha after the brutal shooting of an unarmed Black man there, were vigilante groups that came into town with guns drawn and even murders that happened in the wake of that. I want to dive in just a little bit more. The President has Tweeted about delaying the elections. This was immediately condemned by so many people, but what’s interesting is that it’s also been condemned by Republicans, so Iowa Republican Senator Chuck Grassley, he said it doesn’t matter what one individual in the country says, we still are a country based on the rule of law and we must follow the law until either the Constitution is changed or until the law is changed.

Steven Calabresi, the co-founder of the Federalist Society and a professor at Northwestern Law School, wrote an op-ed in The New York Times where he said you know, I’m frankly appalled by the President’s recent Tweet seeking to postpone the November election. Until recently I had taken as a political hyperbole the Democrat’s assertion that President Trump is a fascist, but then he went on to say that this was a fascistic Tweet and that it amounted to grounds for the President’s immediate impeachment, again by the House of Representatives, and his removal from the office, of the Senate.

So Stephen, I will want to turn to you on this. You know, so we’ve seen Republican pushback on some of this in the tweets. You’ve discussed this issue recently on your National Security Law Podcast… claim the election results have any effect on the legitimacy of those results? 

00:11:24 Stephen Vladeck:

Yeah. I mean, I think you know, Michele, this is where I think I largely agree with Rick. I’m a lot less worried about you know, sort of the President doing anything formally or even informally to try to push back the election than I am about efforts to sort of create a cloud around what’s actually happening and so you know, it’s one thing for the President to send a dumb Tweet, I think most of us have done that at one point in our lives, but it’s something else entirely for folks to act based upon that and I think one of the things I’m going to be looking for is you know, yes, is the President going to try to claim victory, as Rick says, in states that are you know, sort of not yet resolved? Michele, how many states are actually going to be in a position where they’re not able you know, within the first sort of 12, 16, 24 hours after the polls closed to actually come to some kind of clear projection who the winner is?

And that’s where Michele, I think the much more troubling concern to me is how the President might then use the various Federal authorities to help him and you talked about you know, the specter of going to the courts, I also am worried about you know, what the Justice Department might then try to say about these situations where the Justice Department itself perhaps you know, try to intervene in litigation, challenging, certification of results in states where’s there some late contestation.

So you know, Michele, I guess it’s not so much the specter of delaying the election which I mean, if Steve Calabresi is against it I think that tells you where we are. I think it’s much more…

00:12:56 Michele Goodwin:

That says a lot, doesn’t it.

00:12:57 Stephen Vladeck:

Yeah. I mean, I think it’s much more the specter of you know, an election night that doesn’t produce a clear and definite winner and the President as Rick Warrens capitalizing upon that to suggest you know, something is wrong when in fact you know, the way elections work is virtually nothing is ever actually certified on election day, right? That states actually have weeks and weeks to certify the results.

So I think there’s a lot of misinformation out there and the Tweet about delaying the election I think is a symptom of a larger disease where I think a large chunk of the electorate doesn’t understand the actual mechanics of how Presidential elections work and of the timing, and of just how little is actually formally resolved on election day versus projections that we’re all making based upon the incoming data and exit polls.

00:13:45 Michele Goodwin:

So how do we educate people about that? I think your point is so well made, so many people are being educated by Tweets now and by rallies and not necessarily understanding what you just shared. You know, what do we do about that?

00:13:59 Stephen Vladeck:

Well, first, everyone should listen to your podcast.

00:13:59 Michele Goodwin:

Well, that’s right. Everybody should listen to this podcast, this episode. Absolutely.

00:14:07 Stephen Vladeck:

But I accidentally cut Karen off and Karen probably has a much better answer to this than I do.

00:14:13 Karen J Greenberg:

Well, how should we educate people? I think actually that goes to the heart of sort of a two-prong thing here. One is we do need to educate people about having patience after the election and there isn’t enough coverage in the media or by a number of our leaders quite frankly to say, we’re not going to know and that’s okay. This is when we’re going to know, this is when…and without sounding feckless about it and without sounding as if we’re not up for the challenge of what may happen.

And I think that’s kind of…we’re so worried and we see so much coming, justifiably, down the path in terms of the threats from the DOJ, Department of Justice, from the administration at large, so I think that’s one part of it that demands a kind of leadership.

I think the other part of it is something you referred to before, Michele, which is the fear of violence surrounding the voting itself and the aftermath of indecision and chaos, what will that mean, and to many observers, myself included, it looks like the protests and the way they were handled in Kenosha and Portland looked like a trial run for what are the issues we’re going to be up against legally, practically, and socially in terms of the social fabric, what are they? 

And so what are the takeaways that we’ve seen, and I think there does need to be some kind of public outreach to deal with that and I’m not sure what that message could be, I’d be curious to hear what the other contributors today have to say, but I do think it’s both things, both patience and what is the playbook for dealing with the kind of violence that we might expect on the part of the government and what does that mean? And I think whoever it was that said before that, I think it was you, Michele, who said that there are a lot of fissures in the system that we haven’t paid attention to for a long time. Some of them are directly related to the election, some of them are related to what’s happening in our society, whether it’s with Black Lives Matter, with COVID, with so many issues that are all of a sudden focused on this election and I think the main part of this is, the biggest vulnerability here is look, when the United States tries to spread democracy around the world, what do we use as the sign that democracy is on the way to being established someplace, right or wrong. What? The election. 

The viability of elections, the impermeability of being able to count votes all over the world, and so what does it mean for the United States writ large to have all of these bubbling vulnerabilities going on that we know about, and then to have the essence of our democracy, symbolic essence you know, as well as the real essence of our democracy challenged in this fundamental way. And so I mean, my basic takeaway from this is that, and it’s people like Stephen that we’ll have to rely on, is Americans need to know they can trust their elections, no matter what happens, like we have to be able to build that narrative as the educational premise and that’s a huge challenge. 

00:17:27 Michele Goodwin: 

So Rick, just one second because I wanted to turn back to Representative Mikie Sherrill on this question with regard to legitimacy and elections and democracy, wondering what it’s like from your point of view where you’re proposing legislation, you’re getting it passed through the House, but we’ve also seen the inability sometimes to get what might get passed in the House doesn’t necessary get to the Senate floor, and so that raises questions about legitimacy tied to this election and also tied to the pandemic as well. How can Americans have confidence in the democratic process given just what we’ve seen during the pandemic itself?

00:18:15 Mikie Sherrill:

That’s a great question, Michele, and I think that’s what so many of us have been working on with every tool in our toolbox. And going back a little bit to what Karen said, one of the things that’s so offensive to me about some of the President’s comments about our democracy is we have as the United States of America been the preeminent leader in democracy around the world and have taught other places how to run free and fair elections and so to somehow act as if that is beyond us could not be further from the truth and nobody in this country should ever feel that there is any reason that we cannot run these elections well, freely, and fairly.

And so I think as we look forward, what can we do as we pass legislation to support the election and it’s not passed in the Senate, or as the President Tweets and undermines confidence in our elections? I’ll tell you one of the things that as we’ve looked at the transition, because that’s kind of where we’ve moved the conversation, we can run this election but what about the transition? What about the American people having faith that they can trust the results, and I’ve thought a lot about this because I remember my mom telling me she stayed up all night to see the results of the Kennedy/Nixon Presidential election and that was seen as a really long wait, like staying up all night to see who won. And here we’re talking about possibly weeks. That’s not what Americans have been used to.

So what we’ve looked at is what does a peaceful transition of government involve? What are the structures of that, and a lot of it is norms. You know, when you look closely at it a lot of that is anticipating that people will be acting, your elected officials will be acting in good faith, and a large part of why we transitioned power from Clinton to Bush is because Gore stepped aside. You know, he heard the Supreme Court decision and the country went along with that. I feel like we are not in as strong a place right now as we were at that time.

So with all of the things you discussed, Michele, so in a House Armed Services hearing Representative Elissa Slotkin and I put forward questions to the Secretary of Defense and to the Chairman of the Joint Chiefs of Staff about whether or not they understood their responsibilities for a peaceful transition. And we laid out the Constitutional grounds, we laid out the statutory grounds, the responsibilities for General Milley who’s a uniformed officer, the highest-ranking uniformed officer under the United States Code of Military Justice, and he has since come out very strongly and said the United States military should not be used as a partisan tool in elections, and by that I would suspect with some of the comments from the President and the concerns from the Pentagon that he is saying that our military troops should not be for example, put on the streets at polling places to intimidate voters, that that is something he is pushing back against very hard and I think rightly so. 

I’ve suggested then that we need the other cabinet officials to be questioned. For me it would be particularly Attorney General Barr as to whether he understands his responsibilities for a peaceful transition of government and to not use his office in a partisan way to impact the election results.

00:21:36 Michele Goodwin:

And who else? I’m glad that you mentioned that, so who else is on your hot list that you would want to have come before Congress to testify and to be questioned?

00:21:46 Mikie Sherrill:

Well, I mean, I’d certainly love for all of the cabinet secretaries to just sort of answer very basic questions and if you look at how I questioned them in the hearing or the questions for the record that I received back from General Milley, they are basic foundational questions. They’re not gotcha questions or a deep dive into constitutional law which I’m sure Steve could go into with them, but these are basic foundational questions of how this works, and I wasn’t surprised by the Chairman’s answers because they were what I anticipated, they were things I learned as a plebe at the Naval Academy.

So I would like to see these foundational basic questions which every single member of our cabinet, like I said, would start with the Attorney General, I’d like to hear from powerful cabinet members, I’d like to hear from Homeland Security, I’ve been concerned about the use of DHS law enforcement and BOP law enforcement in several of our cities. I would like to hear from the Secretary of State, but all of the cabinets, like I’d love to hear from all of the cabinet secretaries that they are ready and willing to fulfill their duties and if need be turn over in a peaceful way all of the work of their offices.

00:23:00 Michele Goodwin:

It’s amazing that we’re at that point where you would have to wonder if there are senior members of cabinet willing to go along with the democratic process. Rick, you were going to jump in right there.

00:23:11 Rick Hasen:

You know, I was going to go back to Karen’s point where she said that you know, we have to get the point across that the…and I’m paraphrasing here, the election results may take time but they’re legitimate, and I just want to be clear that in order for the public to accept election results as legitimate we actually have to have a legitimate election and the kind of statements that Attorney General Barr has made, he’s made unsupported, crazy statements about foreign countries sending fake absentee ballots, counterfeit absentee ballots. He suggested that the Governor of Nevada could come up with 100 thousand fake votes, even though, of course, the Governor has nothing to do with how the election is run, it’s run by the Republican Secretary of State.

The kinds of statements that Barr is making as the chief election officer of the country, they’re really undermining my confidence in the fairness of the process and I’m glad that he doesn’t have any direct control over how our elections are tallied. But the best way to assure the legitimacy of the election and public confidence that we’re having a fair election is to actually have a fair election and that’s not going to be true everywhere and so we really have to fight to make sure that it’s as fair as possible in as many places as possible.

00:24:35 Michele Goodwin:

I’m glad that you mentioned that, Rick, because we saw in the wake of COVID, primaries taking place, see the politicization it appears of local courts at the state level, and I’m thinking here about Wisconsin, and so I want to just pivot just a little bit since you opened that door. Rick, what are your views about what happened there where the Governor wanted to be able to have votes able to be continued to be counted because people did mail in ballots, that even what was it, a day or two before the election there was still over 10 thousand ballots that hadn’t yet been counted yet. The state Supreme Court got involved and so did the US Supreme Court. Could you just talk about that just a little bit and how you think that that all played out?

00:25:24 Rick Hasen:

Sure. Well, what I think the Wisconsin primary showed is how weak our country protects voting rights. I mean, there are these pictures of primarily African-American voters in Milwaukee waiting to vote, where 175 out of 180 polling places had been closed. That is 97 percent of polling places had been closed and we know that turnout was…even though turnout was up among Democrats overall in Wisconsin because they were upset that the Republic legislature didn’t delay the election, it was down among African-American voters because they bore the brunt of this, and I think it just shows the kind of fragmentation of authority over elections. Could the Governor postpone the election? 

People waiting to vote in Milwaukee – in the middle of a pandemic. This is what Vos, Fitzgerald, the Supreme Courts have done. They have endangered the lives of people who simply want to vote. This is irresponsible. It is shameful. We have to do better for November election. pic.twitter.com/YuNOuRE8v1

— Eric Holder (@EricHolder) April 7, 2020

You know, we had the Governor, the legislature, and the state Supreme Court involved. The US Supreme Court got involved, a Federal District Court got involved, all the rules were changing at the last minute, all in the middle of a pandemic and we really couldn’t get our acts together. And of course, the case went to the Supreme Court where the court on a five to four vote, the US Supreme Court on a five to four vote really suggested that this was business as usual and we don’t really have to worry that much about voting rights and we need to defer to the state.

So the lesson that I took away is that this country gives a very weak protection for voting rights, especially among the more vulnerable members of our society and I don’t think it’s going to be any different in November and I just found it very demoralizing. I had hoped that courts were going to play this kind of backstop role in assuring our constitutional rights, but especially now with the death of Justice Ginsburg I’m very concerned about what the Supreme Court’s going to do should it have to deal with more accommodations that are being made to assure adequate voting rights in the fall and I don’t know where we’re going to end up on this, but I do know that we don’t have a very healthy democracy right now.

00:27:17 Michele Goodwin:

I so appreciate your saying that, Rick, because it reminds me, some of those images reminds me of you know, 50 years ago, images of Black people who are suffering on their way to vote, and considering the passing of Congressman John Lewis, one would think that we’re beyond this but clearly we are not, and to your point about African-American suffering in that state, right at the time of the primary in Wisconsin of the COVID deaths, even though Black people make up only six percent of the population in the state of Wisconsin, they were 42 percent of the COVID-related deaths.

And I think about the recent passing of Justice Ruth Bader Ginsburg and her profound dissent in that case where she said what a horrible ultimatum the people of Wisconsin have been given, exercise your constitutional right to vote but do so in the middle of a pandemic which also then potentially risks your life, and you just can’t make that up.

Karen, were you going to say something there?

00:28:22 Karen J Greenberg:

No, but I agree that our democracy is really fragile right now but I’m so hesitant to fuel that line, that narrative because I think we have to start looking at what’s strong about our democracy, and one thing that Steve said that I think is really at the crossroads of what makes us feel so fragile is our inability to rely on the law. You know, I think there’s been a number of references to well, you know, we want the law to be strong here, but the law’s up for grabs.

One of the things that Trump has done by his Tweets and that the Attorney General has made clear can happen is creating new ways of thinking about the law and whether it’s getting around the Insurrection Act, whether it’s the Presidential memo that was put out at the end of June that empowered Federal law enforcement to come into states to help protect Federal buildings, persons, etcetera. What is this all about, like what is happening inside the institutions that we trust and need to rely upon?

And you know, in any discussion of this what we need…it’s not just the President that needs to be dealt with, it’s also the way we’re dealing with the law and which law and who determines, and that’s why the passing of Ruth Bader Ginsburg is so important because the idea that the Supreme Court may not be functioning in its most robust way at the time that we most need it, it’s just another hammer used against the law that we’ve been watching happen throughout this presidency.

And so I’m trying to say something strong and yet I keep coming up with something you know…

00:30:10 Michele Goodwin:

Well, and you’re trying to say something positive, too, but you know, but let’s be clear. For so many people in our country who’ve been vulnerable, this has always been a challenge you know, and it’s interesting in the wake of the kind of intersections of things happening now with the passing of Justice Ruth Bader Ginsburg, the passing of Congressman John Lewis, and recent reports about the possibility that women incarcerated in detention centers here have been forcibly sterilized against their will. I mean, I didn’t think that we were going to go there in this show but those intersections in terms of legitimacy somehow come all together for me.

And I think about Fannie Lou Hamer within this context. You know, she used the term Mississippi appendectomy to describe what happened to her and so many Black women in the South, so when you sort of think about our election, you think about what elections matter in terms of legitimacy, of government not just with regard to voting but people’s real-lived lives, and in the context of real-lived lives there are people who suffered around elections and that suffering continues post election in the conditions and quality of life that they have. 

Stephen, I’d like to turn to you on this question that we’ve been talking about, the legitimacy of the election, the confidence that people have in voting. What’s your sense on a broader scale, how do we look internationally? Have you picked up on any of that, like the country that for so often was and sort of held up as being the sort of bastion of democracy, the model of this is what it looks like to have free and fair elections? What’s your perception in terms of how others view us now?

00:32:02 Stephen Vladeck:

I mean, I think the short answer is we look pretty bad. and I think that’s across a range of topics, not the least of which is the election. You know, the COVID response I think has been part of that as well, Michele, and the polling, I mean, the last time I was at the polling you know, the notion that the US was a leader when it comes to democratic values, when it comes to you know, these kinds of soft power ideals, that it’s lowest level in decades in most of the rest of the world. 

You know, I think there are a lot of folks who would sort of scoff at that poll and say who cares what the Europeans think and who cares what you know, the Chinese think and who cares that the Japanese think, and fine but I think that’s a reflection yet further still of just how far we’ve come in such a short time. I mean, I think lot of these problems had been you know, as you just suggested, lingering beneath the surface for generations but they’re now you know, we’re saying the quiet part out loud a lot these days and I think with it has come you know, the kinds of claims that were they made in other countries the US in the past would have raised concerns, right? We would have heard noises out of the State Department about concerns about free and fair elections in circumstances that look not that dissimilar from these.

So you know, Michele, I think it’s all part of a larger puzzle where the effort to delegitimize institutions of which you know, election infrastructure is just the latest, has been I think such an alarming and central part of what’s happened, not just during the Trump administration but part of how Trump got elected in the first place and you know, I think one of the scariest things to me about the election is that in many ways it is at least to a degree a referendum on the delegitimization of institutions where the result may in fact depend upon delegitimizing that institution. 

And I don’t know how we climb out of that, like I don’t know how we build back up the idea that there really are values and ideals in this country that don’t just sort out into two new tribes that transcend politics, that are more important than #winning, and my biggest fear is that no matter who “wins the election” there’s going to be a large chunk of the country that wont accept the result and even if they don’t you know, resort to force and violence in their protests, will view anything that comes out of November as illegitimate, that’s a very dangerous place to be in and I don’t know that we’ve really seen that anytime since I mean, honestly, 1860.

00:34:35 Michele Goodwin:

Well, I was going to ask you about that, Stephen. Do you think that we’re in a space of an ideological civil war? To be honest with you I was thinking about this back in 2015 and you know, there are the things that we can say and the things that we can’t say. What I mean is, no one wants to be called out crazy. I think that eight years ago, ten years ago if you used the terminology of white supremacy in the United States it’s like look, we’re a nation that’s been sort of steeped in xenophobia and white supremacy and at that time people would have said that’s race card, that’s reverse racism, that’s absolutely ridiculous. Get over slavery and Jim Crow. 

Now we can use the term white supremacy and no one is going to be surprised after Charlottesville and so much more, right? We see it where we’re willing to open up to that, and in 2015 I was thinking, we’re headed towards an ideological civil war, based on what I was seeing. What’s your take on something like that? Do you see us as being at that place?

00:35:30 Stephen Vladeck:

You know, Michele, the only reason why I don’t is because I do think that demographic patterns are more complicated than they were in 1860. So you know, there were parts of the South where Lincoln got zero votes in the 1860 presidential election, right? Where it was just you know, whatever your politics and other issues you were not voting for Lincoln. You know, in Texas, even if Trump wins Texas he’s not going to win it by much, right? 

And so when we think about blue states and red states, part of the complication here is that there are some red states that actually are not that red but that have been gerrymandered to a point where the political apparatus is very red, so Texas is a good example. I mean, I think it’s a good bet that Texas this November is I don’t know, Rick, what do you think, within four, five points in the presidential race?

00:36:17 Rick Hasen: 

Yeah. Yes, and we’re a lot closer. 

00:36:20 Stephen Vladeck:

Or closer, right? A 52, 53, 54, 46 state where that’s portrayed as this deep red state because the Governor’s Republican, the Attorney General is Republican, the State Legislature is heavily Republican. So Michele, I don’t think that the political structures are sufficiently similar to 1860 where we could see that, but I think in some ways it’s…

00:36:40 Michele Goodwin: 

But the ideologies, right? If you think about it, right? I mean, what’s interesting about that time is so many people thought that the Emancipation Proclamation was the 13^th Amendment. It was, and then the 13^th Amendment is complicated, but you know, the Emancipation Proclamation was that look, you get to keep your slaves, just join the union, and there were a couple states that did, like fine, good, we get to you know, stay with Lincoln and we get to keep our slaves.

So there’s like more on an ideological front than just the political as we see you know, as we talk about how do we educate people and it seems to me there’s a lot of people to be educated. I think that people are surprised by the level of education that’s necessary. I mean, let’s be frank. Over the last few years what have we seen? We’ve seen Charlottesville, we’ve seen churches, Black churches shot up, we’ve seen kids in cages and many people complaining about that, but then others carrying on with the kind of racist rhetoric. I mean, let’s just be clear about what we’ve seen in our streets. You know, people coming to towns armed with weapons, the rise of these groups that are marching through DC I mean, we’ve seen the Confederate flag up in Michigan and with folks storming the capital there. 

How do we not see that as somehow ideological and pushing against values that Americans thought were settled? 

00:38:00 Stephen Vladeck:

Michele, I agree with all that. I guess what I was trying to say was I see the divisions. First of all, I think the most alarming piece of all of this is that it is now apparently politically acceptable to a large chunk of the country to have views that we used to think about you know, we never denied that people had these views but they kept them in the closet. The saddest thing to me about the Trump presidency is that he has normalized and made it okay for people to be publicly hateful in ways that we at least you know, at least in the last few generations had really I think moved away from.

But the larger point, Michele, is on the question are we facing the precipice of an ideological civil war, I don’t know what the organizing units would be, right? Like I mean, yes, I think we are facing the specter of a lot of violence and a lot of private violence and I think it’s going to be a very complicated scenario for you know, law enforcement authorities at the local, state, and Federal levels to deal with.

I think the only reason why I’m not so convinced that we’re facing a sort of a rerun of 1860 is because I don’t think that we sort as neatly as we did back then. The divides today are more urban and rural, right? That I think they were sort of South and North at that time period and I say this as someone who lives in you know, what was a slave state and a member of the Confederacy, right? Where you know, Austin, Texas, is about as progressive as you get these days. 

So I think yes, we are as divided as we’ve ever been and that will inevitably boil over. I just think it’s going to boil over in ways that are different than the ways it boiled over for most of American history.

00:39:42 Michele Goodwin:

Oh, absolutely. Oh, absolutely. That part I don’t disagree with but I was speaking to something more sort of like festering in our soil and that can’t just be defined by the South. Representative Sherrill, were you going to say something to that? Did you want to add to that?

00:39:58 Mikie Sherrill:

Well, I guess I do really worry about this, Michele, and I worry deeply about this because I think a lot of the information that people are ingesting, I think people are ingesting these false narratives that push them in some cases to as you said, issues that we thought were settled because as a nation when we had a well-educated nation, when we had people for example that understood what we were fighting for in a democracy and you could see that when I was growing up because you just had to look to the Soviet Union to see what we did not want to be, and why it was important that we came together as a country and what our strengths were.

Now we have a nation where people are receiving their news in very different places and I just this morning was hearing how some of the people in Oregon were hearing that the wildfires were started by a left-wing radical group and this was something that the police were even begging people to stop saying and stop putting out because they had to investigate all these claims, and they’re trying to put out horrible wildfires and take care of people in their community. And it was a completely false narrative. 

And yet this is something that it sounded like quite a few people in that area of the country believed that there were wildfires started by a radical left-wing group which of course would create a lot of pushback on you know, on left-wing radicals supposedly and what they’re doing to destroy the country, and I’ll tell you it’s just so apparent as you talk to people from different parts of the country who are watching different news channels, who are receiving their news differently, and what they’re ingesting and what they’re believing, and the fact that QAnon for example is having such an impact on such a large part of our country and people are receiving that as news, not receiving that as a sort of kooky conspiracy theory with no basis in the fact, but actually ingesting that as news is incredibly dangerous and makes it even more difficult with what you’re talking about, Michele.

Are we coming to this ideological division in the country that is going to sort of blow up? It’s hard to see how it doesn’t if there are so many people in the country that are swayed by untruths and fallacies and there’s nobody at the top that is saying…this is the area where leadership matters. This is where the President comes in and says that’s not happening. This is the area where the President puts forward you know, and it’s funny because of course you know, I’m always a little bit you know, I’m very into free speech, very into open, transparent government, so for me to be saying how much we need our intelligence agencies, how much we need to rely on the CIA and the FBI, and Homeland…and the intelligence apparatus of this country and not the intelligence apparatus of say Russia which the President has put above our intelligence apparatus, but to put these experts forward and to put faith in them and to have the country put faith in them so we can tamp down this false rhetoric that is tearing us apart.

And I think you know, I’m not trying to take away about our deep-seated problems with racism that have just been from the birth of our nation and to somehow say that that is not an ongoing problem that we all have to engage in, but some of this is being I think flamed, these fans are being flamed and people are being moved into positions that I would hope with education they would not be in based on false narratives, and it’s so incredibly dangerous. 

00:43:41 Michele Goodwin:

Karen, I want to turn to you on that question, too. Do you see this as somehow affecting the legitimacy of our nation and our democracy, the kinds of divides that we see percolating and literally spilling out on the streets in the United States?

00:43:59 Karen J Greenberg:

Yeah, I think this is a crisis of confidence in our culture of governance and our institutions of governance. I think Steve laid it out clearly. I think the news, the media, we don’t trust what they say because they’re disinformation on a variety of fronts like the Congresswoman was just saying. We have a President who’s abandoned his legitimacy in terms of does he say something that’s true, or it’s not just true or not true, is will he repudiate it 15 minutes later? It’s for effect rather than an adherence to the facts and we know that.

This is again why the Supreme Court being you know, in stasis right now and in limbo is a problem, and so I think the ultimate issue here is a trust on our institutions of governance and I don’t mean this as a plus you know, looking for the silver lining, but I do have to say and I was thinking what Rick said you know, like first we have to have a legitimate election. Yes, we need to have a legitimate election. We need to take seriously what this government is saying in terms of voter suppression you know, monitoring the polls, scaring people, ballots, all of that, but this is a moment we have to get through as a country. We have to figure out how to do this in a way that we get to the other side. 

And so to your ideological question yes, all of the issues of the ideology are bubbling there. We now see them exposed for what they are as Steve said, but I actually see it as a tremendous challenge and if you look at the kinds of things that are being done, not just by people thinking about how to you know, protect the ballots, how to read the ballots, how to think about what would happen to you know, deflect violence, this could be an extraordinary moment. So maybe I just refuse to be you know, to accept reality but this is what I’m hoping for.

00:45:58 Michele Goodwin:

Well, I think there’s a way of reconciling all of that, right? And that it is an extraordinary moment because we’re actually able to see what’s in front of us in a way that perhaps before we were not, right? If you sort of look at Barack Obama’s second term there was a way in which we weren’t naming in the media and otherwise what the President and his family, what they were experiencing but if you looked online and you looked through websites you know, there were calls to kill his kids and they were racialized. The media didn’t pick up on it and didn’t frame it in that way but there were you know, racialized attacks against his wife. There was so much of it but it was papered over in different ways and described in different ways.

Even the effigies that people you know, marched to DC you know, with effigies of the President, bone in the nose and so forth, but we didn’t call it out for what it was. We sort of talked about it in the media as if it was something different than what was right in front of us and that was all in response to Michelle Obama putting a garden in the White House, the President pushing for affordable healthcare, and so forth. So it was very interesting to see what was happening then. 

It is all just to say that perhaps while we see the flames stirred during the Trump administration, in reality it actually had a genesis before then and that perhaps we just weren’t paying attention in the right way. 

So much more that we could talk about on that but I want to turn to US Postal Service and also martial law before we wrap up today, and on the US Postal Service side I’d like to bring you back into the conversation, Representative Sherrill. You have been very vocal with your concerns about the USPS and recently wrote an op-ed discussing these very impacts on your constituents. Can you tell us just a little bit about that?

00:47:54 Mikie Sherrill:

Well, Michele, I think it’s with regards to the election and I brought up some of that as we opened, and I think you also brought up some really good points, too, about how necessary the postal system is, and I was just talking to some of the postal workers in my district yesterday and I said to them something that really shocked me is that this should be a very bipartisan issue. I’m in New Jersey, it’s the most densely-populated state in the nation. If the postal system disappeared tomorrow we’d have FedEx, we’d have UPS. 

There are places in this country where nobody else is going. If we don’t have the postal system delivering to people in rural parts of Montana and Idaho, you know, we are going to have people traveling hours to go get their prescription drugs for example, where we have over 80 percent of veterans who use the VA receive their prescription drugs through the postal system. So these are attacks on the ability of people across the country to preserve their businesses, to really engage as part of our American community to engage in the life of our country, and I’m shocked that we haven’t seen a greater effort from Republicans because a lot of these are red states to say that you know, we cannot attack the postal system, and especially as it comes to this time when first of all, we have a global pandemic which we’re fighting so of course, people being taken care of and you know, businesses that are struggling now and trying to get invoices out, etcetera, they need a good postal service.

But also when we’re talking about how people stay safe. You mentioned Ruth Bader Ginsburg’s dissent. How people can vote you know, one of the kind of heart of our democracy, how people can vote safely and not make some choice as to whether they feel comfortable going to vote in person or voting by mail, and then these attacks. And we’ve had eight high-speed sorting machines that you know, hundreds of thousands of letters that aren’t getting sorted a week, taken out of Philadelphia which impacts all of South Jersey. We’ve had over 50 taken out of New York which is going to impact North Jersey, and these haven’t been replaced. Once Congress did oversight hearings they did reimplement overtime. 

Now I don’t want to scare Americans, I am cognizant that the postal system can deliver an incredible amount for letters, we can run a fair election even if it’s a vote by mail election as we’re doing in New Jersey. We have ways of doing that, we’re addressing that in our state.

00:50:35 Michele Goodwin:

But you’re pointing out something very important here.

00:50:37 Mikie Sherrill:

This administration is attacking something that’s you know, that’s so important and I just you know, I want to thank you so much, too, for holding this. I’ve actually got to run to a House Armed Services hearing but I want to end on I encourage that we do I think want to point out some of our strengths, and something that I’ve been thinking about a lot. I served in the military and I’ll tell you, I didn’t know many of the members of my squadron, I didn’t know their political persuasion, but those that I did it was Republican. I mean, the military has been since Reagan overwhelmingly Republican and we are seeing recently the numbers of support for this President incredibly low from our military members. Thirty-eight percent favorability, almost half of the military members don’t have a favorable opinion. 

I think part of this is because we have an incredibly diverse service, so certainly your discussion of the racist attacks against Obama and then the racist rhetoric of this President I think resonates in our military which is a very diverse force, people working side by side care about those issues, and then I think we have a military that has served all over the world, that is charged with protecting our democracy, sometime that our military takes very seriously, and have been I think very willing to stand at the ready to do that. 

So to me that’s a very positive sign that people that care deeply about this country, that have signed up to protect this country will not support a President who does not share their values.

00:52:14 Michele Goodwin:

Well, it has been a pleasure. I know you have to tip off to go do important work, but it has been a true pleasure having you on this show and I really hope that you will come back. So thank you so much for that.

So let’s turn to something really important before we wrap up our show, and this is martial law and the Insurrection Act. So there are people who are worried that martial law could be called. They don’t know exactly what that means, so Karen and Steve, can you tell us what exactly is martial law, should people really be concerned about it at this time that the President could utilize this area of law to infringe upon the election?

00:53:02 Stephen Vladeck:

So I think, I mean, I would start just with a nomenclature point which is that folks use martial law to mean two very different things, Michele, in my experience, and legally they’re distinct, right? So there have been a number of times in American history where presidents have relied upon statutory authority given to them by Congress to use the military for domestic law enforcement and that’s for example, the Insurrection Act that we often hear about. And when that happens the military has not supplanted civilian law enforcement, the military’s just supplementing civilian law enforcement. 

So the troops are out there enforcing the same laws that the police are enforcing. If you’re arrested for breaking the law you go to a civilian jail, you are tried in the civilian court, and so that is not martial law, that is military support for law enforcement which is rare in our country’s history, especially recently, but not unheard of. The most recent invocation of the Insurrection Act was by President George H W Bush in 1992 in response to the Rodney King riots in Los Angeles.

Martial law is when everything breaks down. Martial law is as the Supreme Court explained in Ex parte Milligan in 1866, basically the default factual existence of a state in which there’s no function in civilian authority and so the military is basically governing by default because no one else is and you know, if Milligan is correct martial law can’t be declared, right? It results from facts on the ground, and so we have a couple of examples of that in American history but none more recently than Hawaii during World War II and you know, I think it’s very hard to imagine circumstances where civilian authorities at either the state or Federal level would be unable to enforce the relevant laws when the time comes. 

I think the larger question is, when could the President use the Insurrection Act to put troops on the streets to help enforce Federal laws? That’s where I think there’s more of a specter of abuse, Michele, but also where at least with regard to elections there are two helpful criminal statutes that date to 1865 and 1909 respectively that expressly bar that kind of use of the military.

So you know, I think t’s a broader conversation about when the military can be used as a law enforcement tool which I think has lots of problems associated with it, but that to me is not quite the same thing or quite as alarming as the specter of martial law.

00:55:37 Karen J Greenberg

To Steve’s point about the police, it really is unclear exactly where local forces in some of these places will be in terms of Federal authorities and Federal law enforcement so that wouldn’t be martial law, right? But there’s an assumption of everybody being on the same page law enforcement wise, and if you look at the rhetoric of this administration, they’ve put it out there. The reason we’re talking about the Insurrection Act is because of the rhetoric and some of the movements of the Federal government in recent months, so that’s where we’re at.

00:56:12 Stephen Vladeck:

I agree with Karen that I think there’s been a heck of a lot of planning behind the scenes for how the Insurrection Act could be used for real mischief and you know, Congresswoman Sherrill actually has spearheaded legislation that would try to close one of the back doors which is using out of state National Guard troops in a way that wouldn’t trigger the Insurrection Act but for a similar purpose. 

I’ll just say I do think it is interesting that here we are in late September and we haven’t seen it yet, right? That for an administration that has not otherwise been troubled by political constraints and that has not minded throwing all kinds of norms to the wind, here’s one that seems to have stuck, at least thus far. Now that’s not to say it will hold tomorrow but I think it’s a powerful testament to just how dramatic a step it would be to invoke the Insurrection Act for the first time in you know, really 28 years, that we haven’t seen it yet when this President has done so many other things that I think are in flagrant defiance of norms that we used to think were almost as well settled.

So I’m with Karen, it’s a distinct possibility , something we should be watchful for. I think it’s heartening it hasn’t happened yet and I think it’s worth reiterating to folks who have not studied this that invoking the Insurrection Act doesn’t change the law. It doesn’t mean we are now subject to different criminal and civil penalties, that we’re subject to different rules, it just changes the uniform of the folks who are enforcing those laws against us. That’s not to minimize it, it’s just to say that like that is not to me the equivalent of you know, the rhetoric of coup and the military takeover that we hear sometimes. So there’s sort of degrees of alarming-ness or alarmism and I guess invoking the Insurrection Act is sort of medium on my scale, not high.

00:58:03 Karen J Greenberg

And just to underscore Steve’s idea that it hasn’t happened yet and what that means, look at the drawdown in Portland. When it actually came to a head what you saw was the removal of you know, withdrawal of Federal troops whereas I think there was a real sense that that was going to turn violent and confrontational in a way we didn’t see.

00:58:25 Michele Goodwin:

That’s a very good point and in part it was also Americans standing up. You had moms coming and standing in front of large crowds arm in arm which was also very telling, says a lot about where we are in our country right now. 

And you opened the door for an important segment that we do on the show which is to think about silver linings and what comes next, what can we see that we can build upon that’s important? I mean, it’s important that we point out all that we have, things that we ought to be concerned about, things that we want to make better in our country and of course if we don’t recognize them then it’s really hard to address them. But you know, so many of you who are on the show today you know, Rick, Steve, Karen, and Representative Sherrill also talked about look, there are ways of fixing this. There are good things here, so let’s turn to that.

So I want to start off with you, Steve. So Steve, what’s a silver lining for us as we think ahead?

00:59:32 Stephen Vladeck:

Well, I guess Michele, I actually see three silver linings and I think they’re related. Two of them I think are already true and one is aspirational. 

So silver lining number one is I think there’s a lot more awareness and visibility for some of these you know, long-standing problematic futures of our society among especially I think the sort of more privileged class of Democrats, right? I think there’s a lot more awareness, attention, energy on these issues than we might have seen in recent years and that can only be to my mind a good thing.

The second is I actually do think that we have seen pushback from some of these abuses. Maybe not the pushback we would have wanted and maybe not the pushback that we think is sufficient but you know, I’m really still getting over the military’s response to the Lafayette Square situation in June where you know, we saw for the first time really in modern history the Secretary of Defense, the Chairman of the Joint Chiefs, the Commandant of the National Guard all issue these very, very public statements reaffirming the military’s non-partisan, apolitical role, it’s the importance of the military in not trying to sort of look like it’s endorsing a political message. You know, that pushback I think was not necessarily seen by everyone but I thought it was a really important moment. 

And Michele, there is the possibility that for all of the President’s talking and tweeting, things are actually going to go okay in November. What I mean by that is that you know, state election boards are going to do what they do, that maybe there’ll be one or two states where things are really close, but maybe those aren’t tipping point states and so we actually go to bed Tuesday night, November 3^rd knowing who won the election and without any real controversies or at least any you know, sort of structural systemic rule of law challenge on controversies in the next few weeks. 

So two of those are already here, one is deeply aspirational, but if that happens, Michele, then I think we’d be on pace for a really interesting and I think really substantive set of reform conversations about where to go from here and about how to actually fix some of the abuses we’ve seen over the last few years to make it harder for future presidents to sort of do this again.

01:01:46 Michele Goodwin:

Thanks so much for that, Steve, and I think that you’re right. I think that we’re at a place that once we get past this reform is definitely on the agenda. Karen, what about you? What are the silver linings?

01:01:56 Karen J Greenberg:

I think I’m going to go with Steve, I’m going to pick his three, but I loved his. The first is that people really want to vote. You know, there’s a lot of talk about complacency over elections and voter turnout and what you’re seeing now is just from all over the sense that it’s important to vote, that there’s a community that can help you vote, and that just this urge to vote which I think is you know, better than complacency and can really make a difference, so I think that’s the first thing.

I think the second thing is, and we haven’t talked that much about it, but Federalizing troops and law enforcement and sending them around to the country. I think DHS and its authorities and how its authorities function at the border, in the cities and elsewhere, is going to come under scrutiny as a result of this and it’s late. It already should have come under scrutiny but let’s have that happen and I think that could be one of the things, the reforms that Steve’s talking about that I think is very important.

And then the third thing is and it’s just a general comment is that we are having a national debate right now about race, about voting, about money and wealth, and the way it’s affected COVID, the way it’s affected so much about the social fabric of our country, and it’s high time we’ve had it. We have been pushing that under the rug and it’s been brought out in a very ugly and destructive way, but now that it’s out let’s talk about it. 

And so I think those are silver linings. 

01:03:28 Michele Goodwin:

Thank you, Karen. Rick?

01:03:27 Rick Hasen:

So I think that people have become energized, they’ve become aware of their rights. You know, I focus on voting rights but their rights generally and I think what that’s led to is you know, a greater sense of activism and a greater sense of agency that people have. We’re kind of on a nice edge as a country in terms of where we’re going to go, whether we’re going to move in a more authoritarian dimension, whether we’re going to see continued social strife, or whether we’re going to be able to come together as a country and you know, the first step is being sure that people can vote, and it’s not going to be easy for some people given the pandemic and given everything else that’s going on.

But I think the key point is that if you want to vote there are people there that can help you and make sure that you can have the best chance of having your vote count. Everyone needs to have a voting plan. We just saw reports recently in Pennsylvania of up to five percent of voters having their votes not count because they didn’t know that they had to use a particular envelope to enclose their ballot and if you don’t use that envelope, maybe five percent of people I mean, it’s incredible.

So we have a big educational challenge ahead of us over the next month or so, but there are people who really want to make sure that there is enfranchisement and the people are voting, and I think people are excited about voting and change in this country should come in through the democratic process and through the ability to cast a ballot that will be fairly counted and that’s what I think so many of us are striving for right now. 

01:05:03 Michele Goodwin: 

Guests and listeners, that’s it for today’s episode of “On The Issues with Michele Goodwin.” I want to thank my guests, Professor Rick Hasen, Professor Stephen Vladeck, Karen Greenberg, and also Representative Mikie Sherrill for joining us and being part of this critical and insightful conversation. 

And to our listeners, I thank you for tuning in for the full story. We hope you join us again for our next episode where we will be reporting, rebelling, and telling it like it is with special guests tackling issues related to an extremely relevant issue, stacking the courts. We’ll be joined by Rick Perlstein, Joan Biskupic, and Nan Aron. It will be an episode you will not want to miss.

For more information on what we discussed today head to Msmagazine.com. If you believe as we do that women’s voices matter, that equality for all persons cannot be delayed and that rebuilding America, being unbought and unbossed and reclaiming our time are important, then be sure to visit us at Apple Podcasts. Look for us at Msmagazine.com for new content and special episode updates. 

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This has been your host, Michele Goodwin, reporting, rebelling, and telling it like it is. “On The Issues with Michele Goodwin” is a Ms. Magazine joint production. Kathy Spillar and Michele Goodwin are our Executive Producers. Our producers for this episode are Maddy Pontz, Roxy Szal, and Mariah Lindsay. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Marsh Allen, and music by Chris J Lee. Stephanie Wilner provides executive assistance.