Washington Wednesday: Challenging voting laws

NICK EICHER, HOST: It’s Wednesday the 5th of October, 2022.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

MYRNA BROWN, HOST: And I’m Myrna Brown. First up on The World and Everything in It: Washington Wednesday.

Debates continue in Washington and around the country about the election laws that affect votes for control of Congress and state-level offices.

Democrats have accused Republicans of trying to suppress minority votes. But lawsuits claiming that those laws violate the rights of minorities have not done all that well.

EICHER: For example, just last week in a legal challenge to voting laws in Georgia, a federal judge nominated by President Obama ruled in favor of the state.

Joining us now to talk about this and other cases is J. Christian Adams. He is President and General Counsel of the Public Interest Legal Foundation.

He litigates election law cases throughout the country and has served in the Department of Justice in the Voting Section.

BROWN: Christian, good morning!

J. CHRISTIAN ADAMS, GUEST: Thank you for having me.

BROWN: Well, as we mentioned, Democrats are not having a ton of success in challenging voting laws in red states. What are the commonalities in these cases and why, for the most part, are these laws holding up in court?

ADAMS: Well, one of the commonalities is that elections that take place under these laws are actually seeing increased turnout. In other words, the judges have not stayed the laws, elections take place before the case gets resolved, and lo and behold under these supposedly suppressive laws, turnout actually goes up. Particularly among minority communities. That’s the biggest problem that these lawsuits have faced. The other one is that they’re sort of advancing a very radical idea of the voting rights act that really courts have not supported as recently as the Supreme Court this last year said that you actually have to show real world harms to voters, not theoretical ones. And those are the two biggest reasons these lawsuits have been struggling.

BROWN: Let’s talk about the Georgia case. Give us a brief synopsis of what that lawsuit was all about and what the courts have decided thus far.

ADAMS: Well, in Georgia, after the election you saw an effort to change some of the problems that we saw in Georgia. For example, you had limits on the ability of private organizations to fund election offices. You had laws designed to limit other people touching your ballots. And the courts basically said, look, this is not Jim Crow 2.0. This is not some sort of racial conspiracy of the sort that existed in Mississippi in the 1950s. So the courts have just rejected the idea that these sorts of things like voter ID are similar to genuine racial discrimination from half a century ago.

BROWN: Now, some blue states have moved to loosen election laws. Are those moves drawing legal challenges, too? And if so, how are they faring?

ADAMS: Well, what you basically see in some states are—and, matter of fact, the Delaware Supreme Court is hearing arguments almost as we speak about the move to go to, for example, mail ballots, all mail ballots in Delaware with no reasons to do it. And the Delaware constitution is flat, plain says that absentee ballots, mail ballots are supposed to be only when you’re sick or traveling. And so the question becomes in some of these states, what does the law say? And many times election officials or other government officials are just kind of ignoring the law. And, of course, we’re a nation built on the idea that law is fixed. It’s transcribed. It’s a commandment, and we have to follow it. And when states ignore their own laws, bad things happen and that’s why in Delaware, for example, a state that is supposedly loosening their laws, it turns out it might not be such a good thing.

BROWN: You say one voting matter that hasn’t gotten a lot of attention is what’s referred to as “Zuckbucks.” What in the world is that and why does it matter?

ADAMS: Well, in 2020, billionaires from Silicon Valley gave over half a billion dollars to government election officials to tell them how to run their elections. That’s what the Zuckerberg money was from Mark Zuckerberg, in part, founder of Facebook, and they gave this money through a charity, so he got a tax deduction for it. And the charity then gave the money to government officials and said, oh, we’d like you to do X, Y, and Z. Now, in the old days, when you gave money to a government official and told them what to do, we called that a bribe, didn’t we? Because that’s what a bribe is. I mean, that was the business model of Tony Soprano. So the point is that many states have now moved to ban giving private money to government officials to tell them what to do in 21 states, I think, in the last legislative session. So, I think a lot of people realize that’s not how we’re supposed to do business. Election officials are supposed to be unaffected by private pressure and that’s why the laws are falling into place.

BROWN: And Republican states are cracking down on that?

ADAMS: A little of both. Believe it or not, there’s been some blue states that have passed, or I like to say clarify that you can’t bribe election officials. For example, Pennsylvania. I mean, I know it’s not a blue-blue state, but it leans that way. It certainly voted for President Biden. And they also ban Zuckbucks there.

BROWN: Democrats in Congress would like to centralize control over election law in Washington. If they ever get the numbers they need in Congress plus control of the White House, can they legally do that?

How much control over election law is constitutionally guaranteed?

ADAMS: Well, the Constitution answers this and it says that the state legislatures get to decide the time, place, and manner of holding federal elections. Now, the federal government has virtually no authority on state elections except from constitutional provisions like don’t discriminate on the basis of race and you have to let 18-year-olds vote for president. Things that are in the Constitution. But when it comes to the general rules, state legislatures have absolute control under the Constitution, except the Constitution says, ‘But anytime Congress may pass laws to designate the time, place, and manner of holding federal elections.’ So, if Congress wanted to, they could. Now, the reason the framers put that in the Constitution was because they were afraid the states might suffocate the federal government by not holding federal elections. Of course, that’s a laugh line, isn’t it? I mean, that’s not going to happen that the states are suffocating the federal government. But that’s what the Constitution says as to how many votes away from it is one or two. The only reason Congress didn’t take over state elections last year was because of Kyrsten Sinema of Arizona in the Senate and Joe Manchin of West Virginia. If it weren’t for those two votes, Congress would have taken over state elections.

BROWN: We’ve been talking with J. Christian Adams, president of the Public Interest Legal Foundation. Christian, thanks so much!

ADAMS: Thanks for having me.

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