On this week’s episode of Amicus, Dahlia Lithwick spoke with Marc Elias, chairman of Perkins Coie’s Political Law Group, who represents the Democratic National Committee and the Democratic Party of Wisconsin, about what the coronavirus pandemic means for the 2020 election, specifically in light of the election held last week in Wisconsin, in which the U.S. Supreme Court stepped in to insist that voting must go on. Read a portion of their conversation, which has been edited and condensed for clarity, below

Dahlia Lithwick: I want to start, if we could, by defining the problem. I’ve heard from people worrying that Donald Trump is going to, in the manner of authoritarians everywhere, cancel the 2020 election. But that’s not actually the issue, correct?

Marc Elias: Correct. I have a good news and bad news. The good news is Donald Trump can’t cancel the election. He can’t move the election. Federal Election Day is set as the Tuesday following the first Monday in November, and we will have an election on that day. The only way that that date could move would be a new act of Congress, and obviously that’s not going to happen. That’s the good news. The bad news is we’re going to have an election on the Tuesday following the first Monday in November, and we’re going to have that election whether as a country we are prepared for it or we’re not. What everyone needs to focus on is how do we take the steps now to make sure that when we get to November, we don’t have a circumstance like we had in Wisconsin. There’s no moving the election. We’ve got to spend the time now to get ready so that we don’t have a problem in November.

What happened on the ground for Wisconsin voters? Justice Ruth Bader Ginsburg said thousands of voters will be disenfranchised in her dissent. Is that what happened?

Oh, it’s going to be more than thousands. It’s going to be tens of thousands. It could be even higher than that. Milwaukee had five open polling locations in the entire city, and we saw debilitating long lines. Post offices hadn’t even delivered the absentee ballots for people to vote by Election Day. We saw hourslong lines, and the fact is that nobody wants to wait in line for five hours—even when the skies are blue, the birds are chirping, and everyone is healthy. They certainly are not going to want to wait in line for five hours when there’s a pandemic going on and people have to risk their lives. It’s going to be a staggering number of voters who ended up being disenfranchised.

How damaging is this, when you have voters who witness a spectacular failure of the franchise and just walk away from Wisconsin and everything else saying, “There’s just no point. The whole thing is cooked and fixed and the courts are in on it too.”?

If that takes hold, that will be devastating. That narrative has taken hold with redistricting. In both cases, you have the U.S. Supreme Court sort of throwing its hands up and saying, “Well, I guess there’s really nothing for us to do here.” In the case of redistricting, they literally threw up their hands and said, “We have no role here.” In the Wisconsin case, they claimed that there was little that they could do but the very little they did was counterproductive. I wish that someone at the Supreme Court would have looked at the caption of this case and said, “Do we really want in an election year in which we know passions are going to run high and there is going to be a lot of judicial activity around voting, do we really want a case titled Republican National Committee v. Democratic National Committee to be the case in which the conservative justices are lined up supporting the Republican National Committee’s effort to restrict voting rights?” I really think this was just an unforced error in that regard in terms of public confidence.

I’m struck by the fact that part of what’s happening is the window is clearly closing for either federal changes or state changes to solve the COVID problem we saw in Wisconsin. I think what you’re saying is this doesn’t necessarily have to be a thing that Congress lashes on to the next relief bill. This is something that states need to be pressed to do. Are you saying that pushing for massive federal money to do this may not be our best bet? That this is something we should be doing state by state as quick as we can?

It’s two different pieces. No. 1: Congress needs to appropriate money to the states so that they can fund the elections. The fact is the Postal Service right now is set to run out of money in June, and it plays a vital role in elections, and states are right now taxed under the pressure of COVID as a health epidemic and that’s taxing their budgets. Remember most states have a balanced budget requirement in their state constitutions so they need money in order to simply be able to do the blocking and tackling to hold elections.

But we can’t overlook the things that states can and need to do to make sure that not only is there access to vote by mail but that there is safe and available access to in-person voting. We saw seven-and-a-half-hour-long lines before COVID in Texas. We saw long lines in California before COVID, and we obviously saw debilitatingly long lines in Wisconsin during COVID. Our election system is quite rickety, and it is not set up to handle the kind of external pressures and shocks that come either from high turnout or from COVID or from other crises. There are some simple things states can do that shouldn’t be partisan, but we’ll see. Like making sure that we recruit a new generation of poll workers. In 2018, more than two-thirds of all poll workers are over the age of 60, 25 percent were over the age of 70. One of the things I proposed in that Atlantic piece, for example, is that colleges and universities give course credit to students who are willing to be trained and work as election workers and that they receive pay as well, and that states turn their civil servants into poll workers.

We expand curbside voting so that people can vote in their cars. We set up the voting booth so to speak right on the street corner or right on the curb by the school, you get checked in, you get a ballot in your car, you voted. I would note that the National Review had an article online that endorsed this that I tweeted. I was happy to say that I thought that made sense. There are things that states can do now that should be nonideological, that don’t help Democrats or Republicans, they just help everyone vote.

Nobody wins when a city goes from having 180-some odd polling locations to five. I mean a candidate may win or a party may win, but the system really fails and Democratic and Republican local election officials need to band together to take these kinds of steps to ensure that everyone who wants to vote by mail can do so and have that ballot counted and not be rejected erroneously, and people who prefer to vote in person need to be given the opportunity to do so without waiting in lines and without jeopardizing their health.

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