In this episode, hosts Brianna Lennon and Eric Fey speak with Matthew Weil, the executive director of the Democracy Program at the Bipartisan Policy Center.
They spoke about some of the work his team is doing, some ways local election administrators can get more involved in the policy making process, and about some of the challenges American democracy is facing – like Moore v. Harper, a case being heard this week by the US Supreme Court that could have major implications about how elections are administrated and election policy is made.
High Turnout, Wide Margins Credits:
Managing Editor: Rebecca Smith
Managing Producer: Aaron Hay
Associate Producers: Katie Quinn, Abigail Ruhman
Transcription of the episode is as follows:
Matthew Weil: Election Administration, election administration policymaking has been pretty reactive. We're always legislating on what the last crisis was, and I think that that's limiting because if we spend some time thinking about what the next crisis could be, and legislate ahead of that, maybe we don't have to have all the crises.
[High Turnout Wide Margins Introduction]
Brianna Lennon: Hello, I'm Brianna Lennon, County Clerk for Boone County, Missouri.
Eric Fey: And I'm Eric Fey, Director of Elections in St. Louis County, Missouri.
Brianna Lennon: And you're listening to High Turnout Wide Margins, a podcast where we explore local election administration. Today we're going to be talking with Matthew Weil, he's the executive director of the Democracy Program at the Bipartisan Policy Center, and we're going to be talking about Moore v. Harper, a case that's being heard this week by the United States Supreme Court. And it can have major implications about how elections are run and managed in the United States.
Eric Fey: So, some background on this case before we jump into our conversation with Matt. Basically this case was born from a redistricting issue in North Carolina where the state legislature drew a map, and the state Supreme Court threw it out. The Supreme Court saying it violated the state constitutional ban on gerrymandering. Since then, the state legislature – or at least a number of them – have asked us a US Supreme Court to step in, arguing that under the “independent state legislature theory,” they and they alone have the right to make maps and election rules, and the state courts, governors and even the state constitution can't get in the way.
Folks are worried that if this theory is upheld by the court election rules put in place by other means – through state constitutions, through ballot initiatives, and administrative processes could be at risk since there would be virtually no checks and balances on state legislatures when it comes to elections.
Brianna Lennon: So, it's a big deal to say the least. We spoke with Matthew at the Annual Election Center conference in August about the case being heard this week, and its possible implications on elections administration and democracy as a whole.
Eric Fey: Since we spoke with Matt at the Election Center Conference much has transpired including the November election, which we talked at some length about during the interview, but we thought it'd be most timely to have an episode focusing on the Moore v. Harper case as the Supreme Court is getting set to argue the case
Eric Fey: Matthew, who are you? What do you do?
Matthew Weil: I am the Executive Director of the Bipartisan Policy Center's Democracy Program. The Bipartisan Policy Center is a think tank in Washington DC, and no, the Bipartisan Policy Center is not an oxymoron.
Eric Fey: So Matt, what led you to being involved in elections? Obviously, the Bipartisan Policy Center does other things than elections, but you're focused mostly on elections. What led you to that? And what do you do before you were doing this?
Matthew Weil: It's a good question. I've been around elections for a very long time – started at a different thing tank in Washington, DC at the American Enterprise Institute. I was working on a project there after the 2000 election. It was actually a joint project between AEI and Brookings, and from there, I went to the EAC, the US Election Assistance Commission. So, I was on the team that did the EAVS [Election Administration Voting Survey] before it was called the EAVS. I had been around for a very long time, and I have now been at BPC for 10 years.
Eric Fey: The EAVS is probably the coolest thing in elections.
Brianna Lennon: It's a survey.
Laughter
Eric Fey: I mean, it might be worth mentioning that HAVA [the Help America Vote Act] did a number of things, as you well know. But it instituted the Election Administration Voting Survey [EAVS], and it was kind of the first effort to gather at a national level – in an official way – data from all the 50 states and territories to try to understand how many people are voting by mail, the number of provisional ballots, so on and so forth. So, that's kind of what it is. What was it like in the infancy of EAVS?
Matthew Weil: Well, as many of your listeners probably know that the early EAC had struggles. I was there during the period where they didn't have any commissioners. So, there were a lot of struggles, but I think the EAVS – the focus has always been to take the fact that elections are awash in data, I mean, at their very core of elections are data, right?
And use it to make better public policy, which is not – it shouldn't be a shocking idea, but I think for elections and policymakers that work on election edministration, they were making policy without knowing how people were voting, how they're experiencing anything when they were voting, and that was the beginning of trying to use evidence in the policymaking process.
Brianna Lennon: So, I guess this is a good segue into – what are you working on now to use data in the policymaking process?
Matthew Weil: Well, I think now that we do use data, now that we do have evidence-based policymaking when it comes to elections, BPC’s Elections project is very focused on connecting election officials, academics, policymakers at the state, local, federal level, to think together. For a long time, and especially when I first got into the field\, you know, 15-20 years ago, election officials didn't see themselves as part of the policymaking process. They were administrators. They received the laws and then they administered the laws.
That wasn't perfect, because I think election officials have a lot of ideas for how to improve the process, and now that they are seeing themselves as part of this kind of cycle of policymaking, I think BPC is very good at connecting people where they need to be connected in a bipartisan way so that the laws that do get passed, have some durability to them.
Eric Fey: So, as the name implies – Bipartisan Policy Center – the center makes an effort to find bipartisan solutions to a host of public policy issues. I feel like – especially HAVA, the Help America Vote Act, back in the early 2000s following the 2000 election, it was by and large a bipartisan compromise, of course, there was sausage making that not everybody agreed, but had bipartisan acceptance, I think, by and large.
Right now, it seems like we're in an era where it's very difficult to maybe achieve something like that, but more recently, there has been some legislation introduced in Congress that has bipartisan sponsorship. So, maybe can you talk to the people listening a little bit about the state of bipartisan election administration policy?
Matthew Weil: I think it's easier to talk about it first at the state level because that's where most of the policy for elections is made, and by and large, before 2016, I think there were pretty clear trends in policy – there was the expansion of absentee voting, there was the kind of introduction of vote centers and early voting, and that was happening whether the states were more Republican or Democratic. So, that may have changed a little bit. There may be a little bit more of an R and a D, or a red and a blue election administration at the state level, but there clearly has been an evolution of how we vote in America that has been bipartisan.
At the federal level, though, yeah, it's pretty rare, right? I mean, HAVA turns 20 years old this year. It passed October 29th or signed into law October 29th of 2002. So, it doesn't happen very often. When it did happen it had more than 90% of the members of Congress voting for it. So, it was clearly a compromise bill.
And there’s been attempts since that have had some support, usually about military voting, but the big kind of comprehensive bill – that's pretty rare. The Democrats had H.R.1, they had S1, they had the Freedom to Vote Act. Clearly those were not compromised bills when introduced, and at least right now, we haven't seen a lot of movement in a bipartisan way – doesn't mean there couldn't be, I think that the structure was probably wrong to get bipartisan buy-in, and that's kind of what BPC does.
Back in January, we worked with four other think tanks from across the political spectrum. We worked with our task force on elections, which Brianna is a part of, to think about what a more narrow, more focused, comprehensive bill could be, and we laid that out there so that when policymakers are ready for that, there's a base that they can work off of.
Brianna Lennon: So, I guess kind of changing direction a little bit, but we had talked about it before. You're looking past just the upcoming elections to more of the legal framework of how elections are. Do you want to talk a little bit about, I guess your thoughts, but also about what you're trying to do to kind of prepare the elections world for a drastic reduction of voting rights and election rights coming from the federal level?
Matthew Weil: Yeah, I think it's important to start focusing more forward looking. The past couple of years – pandemic, 2020 election, and all the craziness – election administration, election administration policymaking has been pretty reactive. We're always legislating on what the last crisis was. I think that's limiting because if we spend some time thinking about what the next crisis could be, and legislate ahead of that, maybe we don't have to have all the crises, right?
And so for me, they're a couple of things that are coming, that worry me and aren't getting a whole lot of attention yet, but actually hold the potential to be very disruptive, or even destructive to how we view American democracy.
And the one I'm thinking about most – the one that keeps me up at night is Moore v. Harper in the Supreme Court, which at its core is a redistricting case in North Carolina, but it's kind of the way that independence state legislatures and that doctrine will be discussed by the Supreme Court and whether that's a real thing.
So, very briefly, I'll say the “independent state legislators doctrine” is this theory that state legislatures can do pretty much whatever they want on elections – irrespective of Governors, irrespective of the state courts that might kind of try to strike down their actions, irrespective of even state constitutions – this idea that the federal constitution gives the legislature itself solely the power to decide how elections are run in each state.
[Mid-episode Break]
Eric Fey: So, why should election administrators care about that? Sounds very high minded this – a doctrine of any sort – how does that impact me if I'm just the guy counting ballots and recruiting poll workers?
Matthew Weil: I think the first thing I worry about is what might get invalidated right away. So, if a state legislature has full control of the elections process and any of the policies that you're administering right now were implemented, say by initiative – are those still valid because legislature didn't do it? And in many cases, in many states, I would say the legislature probably didn't want to do it if it had to be passed by initiative. So, that's one concern – just because this case would be ruled on most likely in June of 2023. At that point, we are 17 months out from a presidential election, and we could see kind of mass overturning of the way many Americans have voted for many years.
The other problem, I think, for election officials, election administrators to think about is the practicality of the state legislature legislating on every single thing and being the ultimate decider of what everything means. I look at some states, and their codes aren't great. In many cases, there are contradictory parts of the code, and that's kind of where in those states, the state courts have said, "No, this is what this is what prevails, this is what should hold here."
Theoretically, that won't be binding anymore, and state legislatures can change things on a whim whenever they want to, and so, that's why do you think administrators need to really be following this case much more closely than they are.
And not just administrators – I think this is a real threat to broader democracy. The reason I say that is because, theoretically, whichever party controls each state legislature the day that this ruling comes down – if they're good at things like redistricting or passing laws to their benefit, they probably won't ever lose control of that legislature again, in perpetuity.
To me, that's not American democracy, and it follows from that – we could end up getting very extreme, either liberal or conservative legislation in states that either Democrats or Republicans hold because they don't have a fear of losing any more. So, this is why I do think there are many broader impacts to this court case, and people are right now only focusing on it as a kind of a narrow redistricting rule in which I don't think that's how it's gonna play out.
Eric Fey: Thanks for coming, Matt. That's the end of our job as election administrators. So, you know, I'll get paid through next year, and I'll check out and cool, it's been great talking to you.
Laughter
Brianna Lennon: I'm wondering – a lot of associations, a lot of state associations for clerks and for, I guess, a lot of the local government positions – are trying to build better relationships with their state legislature anyway. Do you see that that could potentially help in any way? Is that one possible avenue in trying to at least maintain some of the good parts of elections administration by building relationships with state legislators?
Matthew Weil: Absolutely. If we consider the current kind of process, right? Where – before any kind of ruling, right? I do think that administrators should always be part of the conversation when it comes to changing election laws because, and I deal mostly with federal policymakers, they have much more extensive staffs than state policymakers, and they don't know a whole lot about elections. So, I'm guessing the average state legislator doesn't know a whole lot either, and they may be legislating and what they're hearing in the news or about other states, and I think that doesn't even really apply to them.
And so, I think that election administrators do need to be organized and they need to be organized as a group kind of federally, to talk about that, but also in each and every state. And I know this has been a hard thing for a lot of states to deal with, and administrators and states to deal with – speak with one voice. I do think it's helpful for administrators to give their perspective, but it's much more powerful if a collective group of state administrators within each individual state can give their perspective with one voice.
Because then you're not going to the policymakers with a bunch of different options, you're going with, “we are speaking on behalf of the administrators of the state, and we want you to know this.” It's not always going to work, but I do think in states where administrators have gotten frustrated because they're not seeing some of the work recommendations they're making get into law, it's because they aren't going clearly, they aren't going next step of maybe even officially lobbying their state legislatures to act in a way that they know is best for their voters.
Eric Fey: I know we just talked about, Matt, kind of the potential for the end of democracy here if the Supreme Court rules in a certain way, but there are other things BPC does and is working on. I'm hopeful maybe you can talk a little bit about that, and some of the things you've put out – the recommendations BPC has made, the outreach you've done to and with election officials, and what you hope to achieve by it.
Matthew Weil: Sure, yeah, I mean, there are any number of issues in the democracy space that we care about. I'm pleased that our team has grown to try to address the many threats that we're seeing on elections. Like I said, I think we want to try to get ahead of policies that could become disruptive before they're kind of part of the public consciousness. For example, in our first taskforce report, we had a whole section about drop boxes. This was way before most Americans ever thought about drop boxes. They weren't new in 2020, right? They'd been used before. We knew how to do that.
I think some of the things we're seeing this year are some changes to how states are doing observers and challengers at the polls, or where those observers and challengers may be allowed. Are they allowed at the counting sites? Are they allowed at early voting? Are they allowed at the drop boxes? So, we're trying to get ahead of some of those challenges because we do think that's going to be a flashpoint this fall. We do think there's a lot to be discussed when it comes to electronic ballot transmission, which is law in some states for UOCAVA [the Uniformed and Overseas Citizens Absentee Voting Act], or military voters.
But I think that could expand to include domestic voters with disabilities, and while I know there's no consensus here, and I don't think that BBC has a consensus yet, I think the worst way to expand that kind of policy would be the courts ordering that policy to happen very close to an election and election officials being told they're going to do it, but having no idea how to do it or no funding to do it.
I think we have to be more proactive. We can't just say “we didn't see it coming” because, I think, we can see things coming, and that's a lot of what our reports are trying to focus on this year. Because I know – certainly after 2020 – I was doing a lot of interviews throughout the year, and a lot of what I was talking about, was trying to preempt what could happen.
And in December, when everyone's kind of writing up their years review, the most common question was, “Well, we never could have seen this happening.” Well, I think we could have. If you talk to election officials, they could have told you. And that has to change because there's certainly a challenge right now with trust in our elections. So, we can't keep going from one crisis to another crisis.
It will always be something new, but we can get ahead of some of these things.
Brianna Lennon: What do you think – you already mentioned that speaking with one voice is helpful – what do you think local election authorities can do right now to act in their own best self interest in either protecting themselves for this or trying to be proactive themselves if they want to help?
Matthew Weil: I have all the respect in the world for local election officials, and now is probably not the time for them to be getting involved in policy making, right? I mean we are 90 days ahead of a federal election when recording this, so now it's probably too late. But I do think there are any number of groups – BPC is one of them, there are others that we're all friendly with that would happily connect anybody who has interest in policy federally, or what our task force tries to do is take some of our task force members, which spanned 25 different states, and insert them into policy debates in other states because giving that perspective is helpful.
So, if you're in a local election official, and you have a perspective, and you want to share that perspective – BPC is one but find those groups that will help elevate your voice. There's no shortage of opportunities there.
Eric Fey: You just mentioned a task force. I think just backing up several steps here. It might be helpful to talk a little bit about what is a think tank. Like I mean, “Shucks, I'm just from Missouri, and must be some big brain people that go to some building in Washington DC and just link all their brains together somehow.” How do you formulate the recommendations, the white papers, the reports you come up with? Who do you gather input for that?
Matthew Weil: Yeah, it's a great question, and I think to take a step back, I think it's very fair. So, the traditional think tank – the same thing that's existed in DC for 100 years – that's the big brain kind of PhD scholars, somewhat like universities without students. They're big professors and the way it's worked historically is they get some funding to do something, and they write the report. Maybe they'll talk to some experts, and then they present the report to the world and then they forget about it. That's it. That's the end of it. They've done their job.
That is not how the Bipartisan Policy Center operates. I don't think it's how many think tanks operate anymore. We try to be organically bipartisan. That's a little difficult on elections, because for the most part, a lot of election officials in this country aren't elected, and I don't know if they're Democrats or Republicans. So, the way we get our organic bipartisan task force is we look at the jurisdiction that that task force member is representing – is it a red state or a blue state? If they're a state official, is it a red state or a red county or a blue county if they're a local election official? It's rough, but it's our best way of trying to make sure that we have good representation.
The way BPC does this is as we bring our elected officials together, we're going to bring academics, we're going to bring the vendor community, we're going to bring the various advocacy groups together – we’re going to try to bring everybody who has a stake in the discussion together into the room and actually have the conversations that we would love to see policymakers have if they had the time and the staff to facilitate them on their own.
Policy development takes a very long time, and you talk to a state legislator, and they have 17 things they care about and not shocking election policy isn't usually the top of them they care about.
Most voters aren't election policy voters. They care about taxes. They care about many other things before they care about election policy. So, we do the hard work of basically doing the research, showing where the tradeoffs are on any kind of policy, and we put that out there.
BPC then goes the next step. We do have a [501]c4 lobbying arm, so we can lobby federally. We have lobbied state level on certain things. We don't want the report to be written and then sit on a shelf – it doesn't do anyone any good there. We're going to promote it. We're going to advocate for those recommendations, and BPC does this on many issues, but my team certainly has now the capacity to be in several different states at one time.
Eric Fey: You've been listening to "High Turnout, Wide Margins," a podcast that explores local election administration. I'm your host, Eric Fey, alongside Brianna Lennon.
A big thanks to KBIA for making this podcast possible. Our managing editor is Rebecca Smith. Our managing producer is Aaron Hay. And our associate producers are Abigail Ruhman and Katie Quinn. This has been "High Turnout, Wide Margins." Thanks for listening.
