False Concerns About Mail-In Voting

still be thrown out. Joining me is election law expert Richard Brofald, a professor at Columbia Law School, which I want to start by getting your take on the legitimacy of President Trump's claims that voting absentee by mail is okay, but voting by mail is not and is going to lead to huge fraud. The President is trying to make a distinction between two different things which are not different

from each other, even the terminology is blurred. The President has almost always voted, as has most of his cabinet and his family, and I think he's thing about and it's the same kind of absentee ballot, But in his case it was you had a justification for voting absentee and that you were going to be out of a jurisdiction, maybe on business, or you were sick, you couldn't get to the volt. We've had that kind of mechanism in place for a century. I mean, it really goes back

to the Second World War. In modern times, many states have moved to make it very easy for people to get absentee ballot so called no excuse absentee voting, which is now more than half the state and the handful of states I think we're now up to five have said we're just gonna nail use the ballot though you don't even have to go through the trouble of asking

for absentee votes. We're gonna do the entire election by mail and have a very very limited exception for people who are unable to use the mount so that a handful of states at must in the West, have been all mail in voting. They don't even use the term absentee, but it's the same kind of ballot and the same mechanism as would be the case in old style absentee voting. A voter at home fills out a ballot, twust it in an envelope, seals the envelope usually then put another

envelope over it signs their name. Some states have other requirements by witnessing and mail him in. In some places you can bring it in. In some places they have so called drop boxes where you can drop it off if you don't trust the postal service. But it's that's literally the same ballot, whether or not it is one that you requested because you were going to be out of town that day, or it's one that the state

has mail to you. So this is a long way of saying that this president is drawing a distinction where there isn't one. President Trump has also been attacking the post Office for quite some time, and he's now put a new postmaster General in who has barred over time and put in other changes that some of the postal workers are complaining about. What can be done to make sure that the post Office can deliver the mail on

time come election day. That's a very tough question. It is one of the things the Democrats have been fighting about in Washington. In their bill, their COVID release bill, which they the path House in May, they put an additional funding for the service to help the Postal Service handle the additional ballots. There are going to be far more mailed in ballots this time around than in any other election. In maybe of the public voted by mail,

that's likely to be much higher this time. So they specifically put in money to help the postal service and loads the search. So far, one of the reasons I think the Republicans have been resisting the Democratic bill is they don't want to put in this extra money for the postal service. So one way to deal with this

would be to give the post Office extra money. Another redly some out pressure the Postmaster General to change these new work rules that he's put in place that you've just mentioned, barring overtime traditional rule the post Office as they try to get all the mails that they have that they delivered. He's basically saying, if there's mail that's undelivered, your mail carry's and delivered at the end of the official work day, come back, don't deliver it, wait till tomorrow. Well,

this could be a real problem, um. And really, when we're talking about mail and ballots, we're really talking about two steps. Mailing the ballot to the voter so the voter can fill it out, and then the voter mailing it back to the local Board of Elections, so it really is going to be going through the mail twice and so any problems with delay gets doubled. So what

else can be done? While one again would be to get them to change those rules, another possibility, of course, is to educate people to voting early, you know, asking for their ballots earlier, or getting their ballots and voting them early so that they give the post office more time. Another possibility is in some jurisdictions, the local election board has set up a quote drop boxes sort of secure

boxes where the voter can drop the ballot off. Voter doesn't have to go into the polling place, but the ballot could be dropped off, you know, maybe in a government building, maybe at a shopping mall, maybe to school. Uh, and so the ballot could be returned without using the postal service. Finally, and this has been one of the more contested issues, is the question of when does the

ballot have to be returned. Some jurisdictions require that the ballot d in the local Board of Elections by end of election day, but other jurisdictions whom I mean really means states say it's okay for the ballot to come in after election day, so long as it's postmarked by election day. So as long as you get the ballot into the system by election day, the fact that it might take the post office five days to bring it

in instead of two, that shouldn't count against you. And a number of states are switching to that or being asked to switch to that now. And that last thing, and I understand see that at least one state is talking about doing this is putting first class post on the ballot. Right now, it's being treated as both mail. But if states want to pay more money on it's a shame that they have so many other expenses, they'd

be forced to do this. They could use first class stamps and that might speed the return of the ballots when they get back. So in missing a deadline was the second biggest reason a mail in ballot was rejected. Are any states now moving to try to extend the time that a ballot can be received, and can they be done by executive order? That's a good question. I believe some states have already done that, um and I

believe it could be done by executive order. Certainly a number of states did that, I think in the context of the primary election and I think it could be done by executive or or by regulation of the executive order usually come from governor, could be by regulation or administrative rule of the state Board of Election the chief elections officer. Again, whether that can be done UH through administration might depend on the law of the individual state.

Have changes by the executive survived judicial challenges. I think where the courts have been more active is in situations where, like the Supreme Court has been resisting a lot of changes, is when a lower court order is the change UH. And there I think of the same Preme Court has on repeated occasions this year so far undone those changes designed to make it easier to get things on the

ballot or the vote. But I think when the executive, whether it's the governor or the Secretary of the state, Secretary of State UM, has agreed to the change UM. I don't think there have been court interventions that have stopped that. There have been so many discus in so many cases and less really going back to about March March April during the primaries that I can't say out of court has never stopped that. But I think for the most part, if the state government is agreeable to

doing this. The courts have not stepped in. I want to just go over some of the Trump challenges trump lawsuit, and you know, you mentioned ballot drop boxes and I thought that sounded like a great idea. But the Trump campaign is suing Pennsylvania over there drop boxes. How strong is their case? Um, I think there's a lot of their argument is basically, uh, that this is less secure. Now, my sense is that the question of balancing access and security is one we normally leave to the states and

local governments. Uh, that's a fight about voter ID. Voter idea was supposed to be, you know, prevent against fraud. On the other hand, and makes um uh it is harder for people to vote U. The courts have generally left that ballots to be set by stay in the local administrators. So you might think that he would you would have the same rule with respect to the use of drop boxes. I could see being the jurisdictions being pushed to make sure to show that they made them secure.

I think that's a legitimate concern, is whether or not all these boxes are tamper proof, whether I don't know there are cameras on them, etcetera. Some jurisdictions have moved towards having kind of bar codes on the ballots to make them traceable again anti fraud. But I think the idea that UM, I think they ought to have a hard time saying that states and local governments can't innovate new mechanisms that make it easier to vote, particularly in

the pandemic context. I mean, there is a public health backdrop to all of this, which is that there is a there's likely to be I mean, we're probably still going to be in the middle of COVID in November, and there's there's a heightened public health concern. We have large numbers of people showing up in polling places. Trump's

campaign is suing Nevada. Explain what that lawsuits about. Again, it's a claim that by making it easier for people to get absentee ballots by the state sending absentee ballots, I have a state liberalizing the deadline for submitting the absentee ballots, that that is somehow the violation of the rights to an election with integrity. One particular issue they've raised is again it's really pretty silly, UM, is that UM, if a ballot is received after election day, but counted.

It violates the congressional law that sets the specific day this year, November three, as election day. UM. What ludicrous about that? Is? UM? What the what? The state pre a and says it's long it's postmarked election on election day UM or earlier. UM, doesn't matter when it's received. Well, submitting the ballot into the ballot, into the mailboxer in the post into the post office and getting a POSTMONE that's the equivalent of voting, UM voting in a polling place.

So Congress says you have to vote by election day. Well, the votes have already been cast. This is a problem of receiving them and absentee ballots. You know, we've had ballasts come in from overseas, from from soldiers UH and the armed forces overseas. They come there as they can

come in past election day, and they're still accounted. It's kind of a silly argument that says that if a ballot has been cast before election day but is received after election day, because that's the way the postal service works, it's somehow is inconsistent with their being one election day. Obviously, the Trump campaign is trying to curtail mail in voting or any kind of voting besides in person voting every

way they can. Is there any proof that Democrats vote by mail more or will vote by mail more than Republicans historically until this all became partisan political in the current election climate, I think there was some evidence that Republicans voted by mail more than Democrats. It was something that older voters particularly liked, and rural voters from what was actually more difficult to get to the polling place.

I think. I think overall that was not a big difference between Republicans and Democrats in terms of their use by mail. Platific extent there was, I think it was slightly more Republican. And there's also evidence that many voters of color preferred to vote in person because suspicions about the postal service. They having thought so hard to get the ballot, there's a certain degree of satisfaction actually physically

voting at a polling place. So I think there is some evidence that voters of color, particularly African Americans, were somewhat skeptical. I mean, again, this is all the margins. I think for the most part there was not big differences, but to the extent they were, my sense was that by mail was probably more commonly used by Republicans and

Democrats until this all became partisan comment. Let's talk a little bit about the Supreme Court, because you mentioned that until today the Supreme Court seemed to be undoing all the efforts to ease access to the ballot during the coronavirus pandemic. Just today, the Supreme Court declined to block Rhode Island from proceeding with plans to relax to witness or notary requirement for absentee ballots in upcoming elections, rejecting

a Republican challenge. Tell us about that case. So I do point out the Supreme Court is now rendering about a half dozen decisions, uh, typically without all of them I think, without floral argument or or generally on the papers, UM dealing with decisions by lower federal court in one way or another. UM making it easier to get a petition on the ballot for a referendum, or easier to vote in light of of conditions created by the pandemic.

For example, UM allow allowing the fear of COVID and possibly getting COVID accountans and illness for purposes of an excuse for an absentee vote, or with respect to petitions to get ballot propositions referenda on the ballot, reducing the number of signatures required. Typically in order to get a question on the ballot, you have you need a certain

number of signatures. People collect them by going around shopping malls and downtowns, and and with with with all the shutdowns on the stay at home rules, it became almost impossible to collect those signatures. So in a number of lawsuits various federal judges around the country, and in different cases not always the number of them. Basically, UH said that under current circumstances, the law, which was normally a

valid competitutional law, needs to be relaxed. They cut the number of signatures they send in a number of the amount of time to get something on the ballot. They loosen what counts to an excuse. UH, they might loosen the witnessing requirement of your signature for an absencee ballot center. They're in number of cases like this UM until today, the Supreme Court has consistently struck those down under something rules only own as the first cell principle, which is

that court shouldn't be changing the rules that govern an election. UH. An effect on the eve of the election. In many of these cases involved primaries, the primary season, or approaching deadlines for getting petitions on the ballot. But the sense is that when courts changed the rules for an election, UM, it could cause confusion, It could be seen as having

partisan consequence. UM. The court is not taken into account the idea that the rules have really been changed by the pandemic itself, and that what the courts they're trying to do is revised the rules in light of the change circumstances presented the pandemic. But the court I didn't get they've often been divided, UM, has not recognized that today's case was different. This case came out of Rhode Island.

As you mentioned, UM, there was a consent decree in which the state agreed uh not to enforce the to witness requirement for somebody to be witnessing. Somebody witnessing and absentee voters signing the back of the envelope that's really them uh submitting the vote in part because if ar under locked out, it maybe hard to get witnesses. UM. Uh. This time, of course, that it was different because the

state had agreed to this. This was a consent to Cree, a loss it brought against the state, but the state ultimately agreed with the change, so the state was not challenging the change. Only the Republican National Committee and the Court six three concluded that if the state was okay with this change, there was no reason for the court to step in. This is what you've seen this pattern.

Does it tell us what will happen in cases coming up where state officials make changes, for example, to either the deadline for mail in ballots or the way they're handled court. It's always like reading the tea leaves. You can never but it is a hopeful sign that if the decision comes from authorized state decision makers and he is consistent with state rules and procedures for doing state business, that they would not step it and that they would

accept the change. Thanks rich that's Richard Brifault of Columbia Law School. Judges on an ombank panel of the DC Federal Appeals Court grilled former National Security Advisor Michael Flynn's lawyer about his claim that a trial court judge has no choice but to grant the Justice Department surprise motion to dismiss the criminal case against him. Will the full court reverse the decision of the three judge panel who

gave a victory to Flynn and the government. Joining me is Bloomberg Legal reporter Eric Lawson, who has been covering the Flynn case. Let's start with the long background of this case. How do we get to the point where there's an ombank panel of judges. Well, it does stretch back to charges that Michael Flynn pleaded guilty too. He pleaded guilty to lying to two FBI agents back in

the very early days of the Russia investigation. Uh So, he was charged with that they had him on tape discussing certain matters with the Russian ambassador to the US. He did not tell the truth about those conversations to

the FBI agents he was charged. He eventually pleaded guilty, but then more recently, back in January, he decided to withdraw this fleet and ultimately, around the same time the President Trump was regularly criticizing this case against one of his longtime allies, the Justice Department switched course, abandoned the case, citing new evidence, and decided to seek dismissal. Now the judge overseeing the case and then Sullivan did not immediately.

Rubbert Sampas and signaled that he wanted to hold a hearing on the government's motion to dismiss the sort of get some more details about what happened, and General Flynn's attorney asked the appeals Court to order him to dismiss the case, a very unusual rare move, seeking the so called writ of man damnis to just force the judge to rule one way before he's ever issued a ruling. So initially the three judge panel of the court ruled in Flynn's favor. Ordered the judge too, said he had

to dismiss the case. He didn't have the authority to look into the motion to dismiss, and Judge Sullivan, again very rare, because the judge had a lawyer represent him in this appeal, asked for an unbountrey hearing and that is what he got, which lawyers spoke before the panel. There was obviously the lawyer for Judge Sullivan and the lawyer for Flynn. Was the Justice Department represented as well. Yes, the Deputy U s Solicitor General, Jeff Wall was the president.

He was questioned by the handle, so I'm very high ranking obviously lawyer for the government defending the government's decision to try to dismiss this case against flynn Um after he had already pleaded guilty. They really didn't delve too much into the substance of the crime that he could pretty guilty too, or his attempts to withdraw his fleet.

It was really a separation of powers issue that they were debating about for what was essentially a four hour hearing with no break, held over the phone and video conference. So they really were looking into whether or not a federal judge had any authority and if so, what kind of authority to have any discussion or debate surrounding whether or not to grant a motion to dismiss a criminal case like this after it's already you know, been prosecuted.

So very unusual circumstances. So that's why there there isn't really a lot of precedent around this. But the judge, Sullivan's lawyer, Beck Wilkinson, a well known Washington litigator, argued that Sullivan had every right to hold a hearing, which

is what he wants to do. Um if he wins this appeal, he'll be able to schedule a hearing and just ask the parties about why they want to dismiss the case and the governments and General Flynn's attorneys say that this is not the role of the judiciary, that he's trying to trample on the executive branches strict authority over this type of matter. The argument of Flynn's attorney

was that the court's role is ministerial. Explain what she meant by that When she was asked about this, she said that although technically the government does need leave of court to dismiss a prosecution under these circumstances, that notwithstanding the fact that the judge needs to sign it, that that doesn't mean the judge gets to decide it. That it is really just his role to a rubber stamp

emotion like this and move on. That it is purely and strictly up to the executive branch in this case, the Justice Department decide who to prosecute and who not to. So it really is a very interesting matter that this court has to decide here about what the role of the judiciary has. So essentially you're going to have these judges are ruling on the extent of their own sort of authority in situations like that. The role of the judiciary. One of the judges, Judge Griffiths said, the judge is

not simply a rubber stamp. Did all the judges agree with that, because obviously they're at this point because the panel ruled against the judge in this case, right, So the three judges the panel, essentially you could look at, you know, which presidents appointed them to the bench, and there were few Republicans and one Democrat. So in a sense, the Trump administration had a little bit of the upper hand is ideologically speaking, and and so they did say

that the case needed to be dismissed. But when you look at the full panel that heard these are arguments on bunk, there are more judges appointed by Democrats, So that doesn't strictly mean that they're going to decide one way or the other. Is it's it's not possible to really predict anything like that. But there was a lot of skepticism about this idea that a judge in this case doesn't have any authority to look into a motion to dismiss. Eric tell us about some of the interesting

hypothetical some of the judges posed. A few of the judges brought up an interesting argument though, they said that consider this hypothetical where uh prosecutor coming in saying that they want to dismiss a case that they have against the defendant, and right in front of the judge, the defendant hands over briefcase overflowing with cash to the prosecutor. The prosecutor says, hey, judge, we want to dismiss this case.

And it sounds somewhat laughable that they really did talk about this hypothetical quite a bit during this hearing, and the lawyer for General Flynn and the Justice Department both agreed even in a situation like that, the judge has no choice but to dismiss the case. That seems like a big ask. Well, you know, Swinn's attorney, Sidney Powell, and the Justice Department's layer they both said in a case like that, of course that would be wrong, and what they should do was refer the matter to the

Justice Department for the prosecutor to be prosecuted. So not saying that that should be legal and that a prosecutor should get away with saying bribe, they're just saying that they're going to have to find some other way to punish that prosecutor, but that no matter what, they have to dismiss the case against this defendant. Anyway, even if it appears that the dismissal is the result of a

cash bribe, it sounds like a law school hypothetical. And there was another hypothetical involving a non video yes, and and actually that refers back to the hypothetical I just mentioned it. It was two different justices sort of asked the same hypothetical in a different way. And of course, as you mentioned, one of the judges added little bit of color, saying that some nuns approached the judge and said, hey, Judge,

this case you're overseeing. We have video of the prosecutor being bribed by the descendant, you know, just to try to give it that extra you know, are these nuns really gonna lie to you? You need to listen to what they have to say. So, as we said, Judge Bullivan just wants to hold a hearing on this. He wants to hear what happened with this case, why they decided to dismiss it. Of course, that argument has already been laid out quite a bit in the Justice Department's

brief um. But I don't think we've mentioned yet the fact that Judge Sullivan appointed a friend of the court named John Gleeson, a former judge, to argue against dismissal. Since Flynn and the Justice Department are on the same page here, he said, Hey, I want to hear from

someone arguing against dismissal. And that was another controversial aspect of this case that Flynn and the Justice Department said that Judge Bullivan went too far by appointing this amarchists, And of course Mr Gleason and his brief against dismissal said that the dismissal of the case was a corrupt attempt to help an ally of President Trump. So you know, clearly this Flynn, of this hypothetical of of the bribe and whatnot is isn't too too far off. No one

is a leeging there was any bribery here. But they do say that this case is being dropped as a favor to President Trump. The government lawyer said that Judge Sullivan's lawyer was sort of walking back her argument. Are they walking back the argument because it went from you know, we're going to have a hearing and do all this too well, I at least get to review this. Yeah,

you know that I noticed that as well. Um, And that is because that's Wilkinson, Judge Sullivan's attorney early on really argued that because of this amigates group that we mentioned this friend of the court who said that this dispissal was a scam, that the idea was that they should really dig into it and investigate what happened. So that was sort of what the Justice Department and Flynn

were saying. That is way too far for a judge to essentially be investigating what the Justice Department is doing. So at the hearing yesterday, Soldion's lawyer did sort of walk that back, and they saying, Hey, all we want to do is hold a hearing, and so she explicitly said there's not going to be fact finding at this point anyway, that they're not necessarily even going to call witnesses.

Early on, and as this dispute was evolving that you know, there were even suggestions that Attorney General William Barrow could be called to testify about, you know, what role he played in dismissing the case against an ally of his box. So there were a lot of questions about how far

that judge's investigation might go. And uh, Beth Wilkinson really went on her way yesterday to say hey, it's just gonna be a hearing, but not saying that's all it would be, not saying that it couldn't lead to something else. But the government's lawyer, Mr. Wall did pick up on that and said, you know, you're trying to walk this back.

He said that tepid defense gives away the game. So you've listened to a lot of these arguments, what was your feeling about how the majority of the judges might rule. Of course, you know, it's impossible to really know, but just based on the some of these questions, especially the hypothetical that we discussed about the nuns, and you know that having a video tape of one judge described it as a briefcase overflowing with cash being handed to the

prosecutor in front of the judge. There seemed to be a lot of focus on this idea that no matter what a judge witnesses, he or she has no choice but to just rubber stamp a dismissal like this. Flim's attorney and the Justice form of lawyers they post said, yes, that would be wrong. A bribe would be wrong, but you can handle a corrupt prosecutor in a separate case.

But I'm not sure how that might fly with these judges, because once a defendant successfully bribed a prosecutor, they're now off the hook, right, They've now been free that dismissal is done. So it's sort of like a permanent benefit to this despendant, regardless of whatever happens to the prosecutor down the road. And of course who's going to prosecute the prosecutor but the Justice Department, which theoretically who knows how far up you know the line this alleged, hypothetical

bribery could go. So and this all could be moved because even if Judge Sullivan did deny dismissal of the case, Flynn would still have an opportunity to appeal. So he hasn't even ruled yet. You know, this is all about whether or not the judge can hold a hearing and decide for himself whether to grant dismissal. But they still have a whole appeal process ahead of them, um, if Flynn decides to appeal, So this is not the end of the road for Flynn no matter what. This is

just about whether or not. And in the last few Ombank panels, the ruling did come down to democratic appointed judge versus Republican appointed judges. Didn't it, It has, and I think that that sort of speaks to the polarization of you know, sort of every aspect of the government.

It's steeped into the judiciary potentially. You've heard a lot of judges and lawyers for the Trump administration argue that this type of politicization is damaging to the judiciary, but I think that perhaps they see it as their defending the judiciary. You know, there are a lot of very consequential cases obviously that we've seen in the last few years that really cuts the core of the separation of

powers and presidential authority. So there's no small matter. And if judges were to simply, I guess, to use the phrasing and rubber stamp everything that came before them, then essentially there would be no debate over what in the

administration might be doing. So I think it just happens that this administration is perhaps making decisions to carry out policies that are triggering a lot of litigation, and a lot of it is very politicals that's Bloomberg Lettal reporter Eric Larson, this is Bloomberg