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[Music] welcome to gracefully grading i'm your host attorney henry gormbein please watch barbara mcquaid my as we discuss issues involving voting which is such an important right and don't hesitate to like us and view us on the gracely greying youtube channel i'm pleased to welcome as my guest barbara mcquaid who i interviewed a couple of times when she was a u.s attorney for the eastern district of michigan now she is a u of m law professor my alma mater and also is a legal analyst with msnbc so without further ado let me welcome barbara mcquaid to grace lee gray welcome thanks henry glad to be with you it's a pleasure having you first of all why don't you tell our viewers a little bit about your background sure i uh you know born and raised here in the detroit area went to college and law school at the university of michigan worked for judge bernard friedman out of law school five years at the butzell long law firm and then almost 20 years at the u.s attorney's office first as an assistant u.s attorney and the last eight as the u.s attorney in the obama administration after that i moved over to michigan law school where i teach criminal law national security and data privacy interesting small world bernie friedman was my classmate in high school we graduated from high school together so we go back a long long way first of all you wrote an op-ed in the free press very recently regarding voting what prompted you to write it i thought it was a very well-written and important article well um i was approached by a group called vote safe michigan and i've actually joined that group it is a bipartisan coalition of uh election officials public officials business leaders and others who just want to make sure that we have safe voting in michigan in november so it's not affiliated with any political party in any way but it wants to help educate the public about safe voting in michigan and so it was a chance to just help provide information to people about how they can vote safely during covid can voting be done safely during cove but that's become a pretty hot political issue what are your views on that yeah i think so and you know that's one of the goals of this organization is to help people understand that i i could imagine that people would understandably be reluctant to show up at their normal polling place on election day uh but people have the right to vote by mail to vote absentee you know we we really lucked out in a way in 2018 michigan voters approved a ballot initiative to amend our constitution to allow no excuse absentee voting so you may remember that it used to be that if you wanted to vote absentee in michigan you had to fill out a little affidavit that said either i'm of a certain age or i have a disability or i'm going to be physically out of uh my voting district on election day not anymore anybody who wants to vote absentee can do that you just need to send an application into your clerk's office and get the ballot you can return it either by mail or drop it off in person at a drop box at your clerk's office and so that's one way to do it the polls will be open on election day i know they'll be working hard to make sure voting is safe in person but if the more of us who can vote by mail or vote absentee um the fewer people need to actually show up physically at those polling places and that can keep the lines down and the weights shorter so that people aren't exposing each other uh to covet 19 and so although i love going to the polls on election day i love getting my i voted sticker i feel like i'm part of democracy up this year i am making a small sacrifice by not going by voting by mail so that those who need to vote in person can do that with shorter lines that's good and so you have an option though i think i'd add that if you want to vote by mail do it early i mean return your ballot as soon as possible because that way you avoid the possibility of delays and the issues with the postal service that we'll discuss later now in michigan now everyone can now vote by mail if they request an absentee ballot what are your thoughts on this i know in the past you had to be i think over 60 or 65 or have to have some type of medical or other reason being out of state but now it's universal what are some of your thoughts on that barbara yeah i think it's anything that increases the ability for people to vote is a good thing and so um i think it's a very good thing i know there have been times i i work very hard to make sure i vote on election day but you may have the best of intentions that you'll vote later in the evening and then uh life gets in the way because you're busy you have family members to care for or other responsibilities and so if you take care of it before election day and just think of election day as uh sort of the last resort then i think we will see higher voter turnout which is a good thing in a democracy we want to empower everybody who has the right to vote to be able to vote and so having this no excuse absentee voting is great in general it's particularly useful i think in a year when we have covid so that people can stay safe by voting from home uh and just putting their ballot either in the mail or hand delivering it to their clerk's office there have been a lot of recent allegations that voting by mail can lead to fraud what is your opinion with regard to that allegation yeah i don't think so there's no evidence of that at the very least um there's been voting by uh mail in several states for a long time i think five states vote exclusively by mail you know here it's just sort of a supplement to voting in person uh but in oregon for example they've had nothing but voting by mail since 2000 there is an organization called the brennan center at new york university that did a study of voting in oregon and looked at all of those ballots cast something like a 100 million ballots cast since 2000 and of all those ballots the number of fraudulent ballots that were detected was 12. it's 0.00001 percent less than the amount of fraud that occurs when there's voting in person in fact they even had a statistic that you're more likely to be struck by lightning than to commit voting fraud so i i don't think there's any evidence to support it and in addition in michigan at least there are some safeguards that have would have been put in place to avoid voter fraud one is that every ballot has a barcode so you can track your own ballot and make sure it makes its way uh that that the ballot gets to you the voter who uh it belongs to and then it gets back to the clerk's office safely and you can track that yourself in addition they are comparing the signature that everyone has to sign on the envelope with the signature that is on the voter rolls and so there are some safeguards there to prevent voter fraud and i don't think we need to have any concern that it's any more prevalent than we would see happening at the polls in person president claims that there is tremendous mail fraud getting votes by absentee for all recent elections so he mails his ballot just like millions of others do you have any comments on that no you know i think that just sort of demonstrates what's good for the goose is good for the gander i suppose when you increase substantially the volume of people voting by mail that could change the calculus but if you're going to have it available for anybody you have to have it available for everybody uh and so i i think that his example just kind of points out the hypocrisy there but you do raise an important point about um the volume of the mail with more people voting absentee and recent problems at the postal service in delays with the mail i think people want to make sure that they get their ballots mailed back in early the post office is saying 15 days before the election because in michigan they only count your ballot if it's received by election day are there is there a movement to change that so that there's a little more latitude i've read something in the paper i don't know if that's a reality or not um there there is but i don't know that we're going to see any change this election time around you know some states um allow uh what's known as the mailbox rule which exists most you i'm sure you know henry from your own uh legal practice and uh studying for the bar exam the mailbox rule is as long as it's mailed by the deadline it should be treated as on time because once it gets into the mail most of us don't have any control over how long it actually takes for a postal service to deliver it and so some states have that rule the mailbox rule as long as you've mailed it by election day it will be counted the challenge there of course is then it could be several days before we have a final count but i think it's likely we're going to have several days before we have a final count anyway this time around and so i think one thing that voters need to be prepared for is if we don't have a final count on election day that is not an indication of fraud that just means it takes a little longer to count all those ballots that have come in by mail and in fact the count we get on election day is not the official count anyway that's based on exit polls that the media takes by asking people as they leave polling places who they voted for and then projecting a winner states don't certify their results until weeks later that it's not until sometime in december that the canvassers actually collect and record all of that information and it's certified so um one piece of legislation afoot in michigan that i think would would be helpful in that regard is um to permit the secretary of state's office to begin counting ballots as they're received so they don't have to wait right now they have to wait until election day before they can open them and start counting um and if we get a huge huge volume of ballots um that are cast by mail that could slow down the results if they can start counting now as long as those uh numbers are not disclosed uh then they could um begin tabulating and perhaps reduce the delay in uh announcing the outcome after election day why can't they start counting well now is it a legal requirement yes the law says they can't open them until um election day and i think the reason there is a good one which is if word got out say word got out that uh uh donald trump was winning in a landslide people who are what might otherwise be inclined to vote might not bother to show up they might say well i'm not going to vote because biden's going to lose anyway or they might say i'm not going to vote because trump's going to win anyway there's no point in my voting and so uh it's important to keep that information safeguarded but i think that can be done people who work in clerks offices are professional they they have access to all kinds of sensitive information that they keep secret and so uh keeping that confidential as well i think uh they could be entrusted to do that but it would allow us to know uh the outcome of an election if not on election day then probably very shortly thereafter it'll be interesting i mean it used to be if you wait and you'd know the results by 11 12. right right yep i don't know this year could be a little bit different and i think we have to prepare ourselves for that because i think um some may say oh look it means that there's fraud and i think if we don't know the outcome on election day that doesn't mean there's fraud it just means it takes a long time to count ballots that have come in by mail can the president delay the election uh no um not legally only congress can set election day and they have said it by statute as the first tuesday after the first monday in november and i think that um even if for some reason congressword is to decide to delay the election one way or the other uh president trump's term expires on january 20th and so it's not really in his best interest to delay the election at least not beyond that date because beyond that date his term expires the vice president's term expires and if there's no one to take their place then we begin to look at the succession statute which says next in line is the speaker of the house that's nancy although if there's no november election her term also likely expires which means we go over to the next person in line which is the president pro tem of the senate they're selected by that person is selected by a majority of the senators if there's no election in november then one third of the senators are not reelected and looking at the data there it seems likely we would have a democratic majority in the senate which means they would choose the president pro tem of the senate that typically has been the most senior member of the senate of the party that uh prevails and that would be patrick leahy so um it looks like he would be the president if there was no delay so my guess is president trump does not want that outcome and that he does not see uh he would not seem to benefit from a delayed elections so i don't think that he has an incentive to do it and he doesn't have the legal ability to do it either let's hope we never get to that point right forever one of our most cherished rights that separate us from dictatorships as a right to vote do you believe that voter suppression is going on now i mean clearly during the civil rights area there was voter suppression there have been attempts for voter suppression in many areas uh in the south particularly even to this day what do you feel is going on i i do think that voter suppression is a strategy that some groups use to try to keep a voter turnout low or to control who gets to vote for what i mean gerrymandering absolutely occurs you'll see within our own state there is a district that brenda lawrence represents in congress that snakes through south field and then down into detroit i think in an effort to compress uh black voters into one district and to carve out others for um for other members of congress you see it in throughout the south and states where we have republican-controlled legislatures you'll see the creation of voting districts designed to maximize the number of districts that are controlled by the prevailing party we've seen the introduction of new voter id laws um that prevent people from voting if they don't have the requisite form of id we've seen restrictions on voting rights for people who have felony convictions i know there's litigation going on about that right now in florida where a ballot initiative the voters said we want uh voters in in florida who have felony convictions to be able to vote and that has not gone into place without a legal fight so uh i think there are strategic reasons that parties want to maximize the number of people within their own party uh to vote and minimize the number of people who can vote in the rival party um but you know voting is as you said a cherished right for all of us and so things that impede the right to vote uh i think are anti-democratic and that we should work to rectify that so that everybody gets to vote for whoever they want to vote for is hacking the election by a foreign government a concern especially based on what happened in 2014 i mean 16 i should say yes i think it is a concern i think this is one area where we do a pretty good job of protecting the right to vote um the department of homeland security has provided a lot of funding to our states to prevent it although not enough there are some bills that have not been passed in congress um but one of the things that we do in michigan that is helpful is to keep a paper back up of our voting so that if you know systems go down or if somebody is able to hack into systems we um you know you if you vote in michigan you know you take that little pen and you darken in the arrow and you feed it through the machine voting by mail also creates a very good paper trail of how you voted and so our secretary of state's office is able to audit the outcome of our election so i think even if there were to be some sort of hack on election day um we could probably um still have backup paper copies that would show us the actual way that voters voted i think you could have interference with the power grid that could cause a lot of problems taking down the secretary of state website that tells people where to go vote for people who don't know um those things could be very disruptive on election day so i think it is a threat um it's a possibility i think that we've done a lot of good things to try to prevent it um but relying on one and only one day as election day i think puts us at risk for that which is why i think early voting by mailing in your ballot or handing it in is a very good practice barbara what about a disinformation campaign by a foreign adversary is that a threat currently yes i think we've as consumers of news have become much more sophisticated than we were in 2016 but if you've read the report of robert mueller or even the executive summary which i urge people to do um you will see how much effort there is by russia as a foreign adversary to interfere with our right to vote and the way they do it is by these influence operations putting um messages posts on social media pretending to represent groups within the united states and then saying outrageous things affiliated with those causes so you know they look at the fault lines gun rights abortion racial unrest police brutality um and they assume the persona of advocates for those causes and then they post messages that are just over the top and the idea there is for people to see that and believe that that is the message of those advocates and to say i can't get behind that over the top message and in that way they are pushing people farther and farther to polar extremes and when people see those things they begin to believe that uh you know joe biden is coming for your guns or uh donald trump um uh is partners with vladimir putin or whatever it is and so um you see those things and so i think russia is interested in advancing their message which is it's chaos in the united states and to uh so dissent within the united states so i think that is a very real threat and some of the things that we can do is to verify that sources of information are accurate don't believe everything you read on the internet look for rapid friday of last week and monday of this week our current postmaster who was appointed i believe in june was testifying before congress about numerous problems with the postal service such as the fact that uh hours were cut back uh post so mailing boxes were removed from many rural areas or areas where people did not have a lot of access it was shown that a lot of people were not getting their prescription drugs and there's been a huge problem with the mail service i noticed it because it's harder and harder to get mail in addition we have male sorters that should be an asset that could sort thousands and thousands i think 21 000 pieces of mail in an hour and a lot of these were either put aside or a lot of them taken apart in certain areas uh do you think that there's been a lot of damage done by our postmaster uh through these recent actions especially with regard to our right to vote with his upcoming election where there's going to be so much uh more need for full postal service for lack of a better work well in his congressional testimony the postmaster general has said that he wants to make some significant changes to improve efficiency at the post office the problem is he has taken these actions of dismantling these things in a time right before the election during covet 19 when many voters are going to be relying on the mail to get their ballot turned into the clerk's office and i think that this administration has not earned the benefit of the doubt in fact to the contrary uh i feel that this administration has earned a lot of suspicion and so when the timing occurs just before uh the election during kovid when the president has been discouraging people from voting by mail and then we see this dismantling of the post office it does cause me concern that this is a concerted effort to suppress the vote people who might be inclined to vote by mail what's odd about it is it would seem to me that voting by mail would equally impact republicans and democrats especially those in rural areas who rely on the mail who might be more inclined to vote republican but nonetheless we rely on our postal service and i think there are some like the postmaster who want to see it as a profit-generating business and they complain that the post office is not generating profits uh you know government is uh is not a business when you say let's run the government like a business i i point to the flint water crisis as why you can't run government like a business it is not it is not a business it's not there to make money it is there to serve the people we don't expect our schools to make a profit we don't expect our military to make a profit we expect them to do their mission and serve the people and i think similarly we should think of the post office in the same way we charge money for stamps in an effort to offset those costs but if we want to have mail service and i submit that at this point in history we need a mail service we may get to a point where we don't but we still rely on mail to deliver packages and checks and medicine we should accept the fact that it might not be profitable [Music] are there any other concerns that you have regarding our upcoming elections which are you know less than three months away now i think the biggest concern i have is the one that relates to the post office that people are going to be very diligent they're going to apply for their absentee ballot they're going to mail it in and it's going to arrive a day late and their vote is not going to be counted and that's going to disrupt the outcome of the election um i think we need to make sure we're getting the word out as you're doing here henry um that people need to vote early as the post office said if you're going to rely on the mail to get your ballot in you need to mail it 15 days before the election or if you find yourself within that time frame what i'm going to do is i'm going to hand deliver my ballot to the dropbox at my clerk's office i think that's an important way to do it and this year i'm going to sacrifice that joy i feel of showing up and voting in person because i know there are some people who need to vote in person people who have language issues or people who have disabilities who need to vote in person i'm going to leave the polling place the physical polling place to those people so that the lines are short and the weights are not long uh and i'm going to go hand deliver my ballot to my clerk's office and i urge people to consider doing the same because we want your vote to count and we want everybody to be able to vote safely every most important do you expect a huge voter turnout this november i do i think um whenever we have a presidential election the turnout is much higher than in non-presidential years but i think one of the things we saw at least here in michigan was that our election was determined by around 10 000 votes and so uh that's a very small number we also had a very low voter turnout in 2016. i think there was some um dissatisfaction with both candidates that kept people down but remember if you don't show up um your vote can't be cast and so uh i think there's going to be a great get out the vote effort and we're going to see many people vote and i will tell you anybody who is thinking that it's not worth the time or not worth of trouble i'll tell you a very quick story some years ago my husband and i were outside our home we were assembling a trampoline for our young children and a candidate came by who was knocking on doors and he asked us if he could give us his spiel and we said we didn't really have time because we were trying to build this trampoline and it was very difficult and he dropped everything he was doing and he introduced himself and we recognized his name as a candidate for county commissioner my husband and i had already decided we were going to vote for his opponent but he spent about 20 minutes working with us to assemble this trampoline and as he did so he said well tell us your spiel and he helped us and he did he told us the things he stood for and we said all right you've convinced us not only do you have good views on policies but you're a good person because you you help people and we're going to vote for you and we did um and you know he won by by one vote and so our our two votes uh determine the outcome but of course everybody thinks they were the ones that determine the outcome when the margin is one vote and in fact everyone did every single person who voted for him was the deciding vote that made a difference there was a story the next day of someone who was in a motorcycle accident that night who but you know dragged themselves to the polls to vote for him and they're convinced they were the deciding vote and they were every one of us was the deciding vote and so if you ever think my vote doesn't count um remember that story because it does every every single vote that night made the difference uh and your vote does too so it's up to all of us to educate ourselves about how we can vote make sure we vote safely because in a democracy only we can control our destiny couldn't have been better said now you are currently a legal commentator for msnbc tell us about that yes um you know i uh i provide analysis and so i i don't try to tell people what to think or share opinion but i try to explain our legal system can be very complicated and i think sometimes information can be overwhelming and people who don't understand it might not know who to believe and i think there are those in power who count on that fact that people who don't understand things might be persuaded that things are unfair or that the law is being used in certain ways and so i try to just explain what does it mean when a search warrant is executed what is probable cause what does a grand jury do so that people can make some sense of the news uh when they hear it and it's it's very enjoyable i i feel like it's an extension of public service to help people you know democracy depends on people who are informed and educated and so if i can help people understand what's going on in the world and they can exercise a more informed vote then i can feel proud of that service now we have less than a half a minute uh what do you teach at u of m law school now and then are there some final thoughts you'd like to share before we sign off um this year this fall i'm teaching criminal law and a course called national security and civil liberties helping people understand that tension between safety and liberty and all i'll say before i sign off is that you know democracy is not a spectator sport uh all of us need to participate if we sit on the sidelines then we will get the leaders that we deserve and if we participate then we will get the leaders that we we should have and that we're entitled to i'd add if you don't vote if you don't participate then you have no right to complain about the result barbara mcquaid i want to thank you so much for being my guest on gracefully grain and i want to thank our viewers for a great watching grace lee ring and again i ask that you view this show on our gracefully growing youtube channel and also like it thank you again barbara thanks henry [Music] [Music] you