Democracy & Elections Under Stress: A Discussion with Trevor Potter of the Campaign Legal Center
December 9, 2020
The 2020 election has revealed the partisan state of American politics and society like no other event in recent history. How did we get to this point? Our special guest today, Trevor Potter, Founder and President of the Campaign Legal Center (CLC), provides insight into that question and suggestions on how to rehabilitate our polarized polity. Gerrymandering, the partisan drawing of electoral districts practiced by both parties, is one major factor in the equation.
In Episode 16, “Democracy & Elections Under Stress,” Trevor Potter (a former Chairman of the Federal Election Commission) describes how the long-practiced art of gerrymandering has become a polarizing science in the age of big data. The result is an alarming number of “safe seats” whose legislative occupants, at state and federal levels, have no incentive to cooperate with the opposing party on legislative issues.
Potter’s nonpartisan group, the CLC, is working to combat gerrymandering through litigation and the establishment of independent redistricting commissions at the state level. These state level efforts, Potter explains, are critically important in light of the current Supreme Court’s inclination not to adjudicate state-level gerrymandering. The Purple Principle discusses with Potter the important role that independent or unaffiliated citizens can play both in supporting and serving on these commissions as a nonpartisan voice or potential tie-breaking vote.
In this episode, Potter also outlines CLC initiatives in campaign finance transparency and ranked choice voting (RCV). He explains how RCV encourages voting for independent or third party candidates by removing the traditional spoiler effect, and underlines the importance of greater campaign finance transparency in an era when limits on expenditure have become problematic.
Last but not least, Trevor Potter (General Counsel to John’s McCain’s two presidential campaigns) comments on the recent and ongoing attempts by the Trump campaign to block and overturn the 2020 election results in several pivotal states. He commends the courage and professionalism of Secretaries of State and election officials from both parties for adhering to democratic process. And he points to some weak points in our electoral system that urgently need reform to prevent similar election dispute strategies from becoming the norm.
Tune into learn more about our democracy and our elections under stress in Episode 16, with Trevor Potter, Founder and Chairman of Campaign Legal Center, Former Chairman of Federal Election Commission, General Counsel to the 2000 and 2008 John McCain for President campaigns (not to mention Stephen Colbert’s “Colbert PAC” 2011 legal advisor on the Colbert Report).
Source Notes
Trevor Potter. Federal Elections Commission.
Trevor Potter. Caplan & Drysdale Attorneys.
Arizona Presidential Election Voting History
Trevor Potter. Campaign Legal Center.
“Gerrymandering.” Encyclopedia Britannica.
Princeton Gerrymandering Project.
“A primer on gerrymandering and political polarization.” Brookings Institute.
“Independent redistricting commissions.” Ballotpedia.
Erick Trickey (7/20/17). “Where Did the Term “Gerrymander” Come From?” Smithsonian Magazine.
Rachel Weiner (11/4/20). “Virginia redistricting amendment approved by voters.” The Washington Post.
Virginia Question 1, Redistricting Commission Amendment (2020). Ballotpedia.
“Progress Report: Fight Gerrymandering, Give Voters Real Choice.” Reclaim.
Sara Swann (8/26/20). “North Dakota court boots gerrymandering reform from ballot.” The Fulcrum.
2020 General Election Early Vote Statistics.
“Massachusetts Question 2, Ranked-Choice Voting Initiative (2020).” Ballotpedia.
Ranked Choice Voting Resource Center.
“November 6, 2018 Election.” North Dakota Secretary of State.
“ND Lawmakers Could Hamstring New Ethics Measure, Supporters Say.” (2/1/19). Public News Service.
Citizens United v. Federal Election Commission (2010).
Anita Kumar (8/19/20). “Republicans quietly push mail-in voting despite Trump claims.” Politico.
Faithless Elector State Laws. FairVote.
Rule 804 (b3). Hearsay Exceptions; Declarant Unavailable | Federal Rules of Evidence | US Law | LII.
Mark Salter (2020). The Luckiest Man: Life With John McCain.
Transcript
Trevor Potter:
And I don't think any of us ever thought it was possible that a serious argument that state legislatures should ignore the will of the voters and choose another candidate. That's a true threat to democracy.
Robert Pease (host):
That’s our special guest today, Trevor Potter, President of the Campaign Legal Center, who might be familiar to you from a number of important positions.
Trevor Potter:
And I don't think we can count on being lucky next time that the election will be wide enough in terms of the margin to avoid the sort of threat that we've seen here this year to the system and the will of the voters.
Emily Crocetti (reporter):
You might remember Trevor Potter as a Chairman of the Federal Election Commission from 1991-1995. We’ll hear from him on how close to a constitutional crisis we came in the 2020 election.
Robert Pease (host):
And Trevor may be familiar to you as General Counsel for John McCain’s two Presidential campaigns in the years 2000 and 2008. We’ll hear from him about one of our nation’s most independent-minded politicians, John McCain, who passed away in 2018.
Emily Crocetti (reporter):
And in 2020, McCain’s own purple state of Arizona swung against a Republican presidential candidate for the first time since 1996.
Robert Pease (host):
But Trevor’s voice may be familiar to you from yet another high profile, if satirical, position.
Emily Crocetti (reporter):
As the legal advisor to Stephen Colbert’s Super PAC, which he formed live on this episode of Comedy Central’s Colbert Report in 2011.
[Archival audio, The Colbert Report]
Emily Crocetti (reporter):
Currently, though, Trevor Potter is the President of the Campaign Legal Center, or CLC. The goal of this nonpartisan nonprofit is “advancing democracy through law.” And that includes working to stop the polarizing effects of gerrymandering.
Robert Pease (host):
Which is a tricky subject. But you’ve probably seen those highly creative maps that result from gerrymandering, with the random shapes and sizes of federal and state congressional districts.
Emily Crocetti (reporter):
Those are not random at all. They’re highly deliberate, and the result of gerrymandering, which is the creation of unbalanced electoral districts by partisan legislatures to maximize seats for their own party.
Robert Pease (host):
In other words, the fox guarding the chicken coop. And both parties have been guilty of this for centuries but have become way more effective lately with the rise of big data.
Emily Crocetti (reporter):
Gerrymandering is kind of like wanting to start up a great band, and all kinds of talent shows up at the audition – keyboard players, guitarists, bass players, drummers. But the music director selects the worst guitarists.
Robert Pease (host):
And that’s pretty much what we hear from Washington and many state capitols these days. Lots of harsh noise, very little legislation, and everyone suffers as a result.
Emily Crocetti (reporter):
So let’s learn a bit more about gerrymandering from Trevor Potter, President of CLC, the Campaign Legal Center.
Trevor Potter:
Well, gerrymandering is a real problem because it means that whichever party is in power when the districts are drawn, which is every 10 years after our census, that party draws lines in a way that maximizes their number of seats, either in the legislature or in the congressional delegation and minimizes the number of seats for the other party. They do that by packing as many members of the supporters, voters of the other party, into the smallest number of districts that they can, so that party wins those districts overwhelmingly, but then the party in power wins a lot more districts than it normally would.
Now, in terms of polarization, what that does is it means that people are in districts that are safe for their party. So the only challenge they're going to get is in a party primary. And what tends to happen in both the Democratic and Republican parties is that the energy comes from the base, from the more active members of the party, who are the ones likely to vote in primaries. And generally they tend to be on the more extreme side of their party. So in the Republican world, it's the more conservative Republicans; on the Democratic side, it tends to be the more liberal progressive members who come out in primaries. You then lock in more extreme Republicans and more extreme Democrats. So it makes it much harder to have any sort of moderate compromises in the middle because members of the legislature or members of the house are concerned about getting challenged if they try to reach out to the other side.
Robert Pease (host):
And that is a huge issue. But it seems that currently there’s only about ten states with independent commissions. Has it been about that number for a while or has there been some up and down on that?
Trevor Potter:
No, I think that's about right. There are more independent commissions than there used to be. It used to be that the districting was simply done by state legislatures. Independent commissions are a relatively new phenomenon, but it still wasn't as bad as it is now because – what I would call the science of redistricting – was nowhere near as powerful as it is today. Going back to the word gerrymandering, which comes from Massachusetts governor Elbridge Gerry, he was using a quill pan and a map. Today, the census maps and the demographic material is so precise that somebody drawing a map knows literally which houses on the block have one registered Republican or two registered Republicans. And the same, obviously, for Democrats. So somebody drawing these lines can very precisely measure based on party registration and all the other demographic data that's available. What magazine people subscribe to, all these overlays of information that tell you something about voters and their preferences. So as they say, this is not your father’s or grandfather’s gerrymandering.
Robert Pease (host):
That’s for sure, and it's great that Virginia passed that. But at the same time it looks like the state of Missouri has actually taken a step backwards recently. So how is it that in some states you can create an independent commission with some stability, and another state like Missouri in this case can essentially rescind a commission?
Trevor Potter:
So both of these, Virginia and Missouri, are good examples of how difficult it is to overcome partisanship. Virginia had a Republican legislature a couple of years ago, the Democrats did not have the legislature in either house. And so they pushed for an independent redistricting commission process, and all the Democrats voted for it, and they got just enough Republicans to vote for it, to pass it the first time in the Virginia legislature. Then, still under the old lines, we had an election in Virginia and the Democrats took control of the legislature. So it comes back up for the second vote in the next session of the legislature as required. And lo and behold, the Democrats suddenly find that this is a poor proposal, that it isn't very well written, that it's confusing, that it isn't as independent as they would like it to be. All of a sudden the Republicans, who almost all of whom had opposed it, are in favor of it because they've lost power in the legislature. They're not going to be able to draw the lines and they would rather have an independent commission than the Democrats doing the line drawing.
And I thought the Democratic party attacks on it might be effective because most Virginians didn't know the details. And when they went to the polls, there was an official Democratic party flier that urged a No vote on this. It still passed, by 66%. And I think the lesson from that is that when voters are told that what they're voting on will make the system less partisan, they are in favor of it. And in that sense, redistricting commissions have not lost anywhere in the country when voters have actually had a chance to pass them. So that leads to Missouri, the other state you mentioned, and what happened there is, there was an initiative two years ago to have an independent commission and it passed, as they tend to across the country. And the Republican legislature did not like it because it was going to take power away from them to draw these lines in 2021. So they did something very clever, which is that they came up with an initiative of their own, which they got qualified for the ballot. And what it claimed is that it would improve the independent commission. Now in the details, it significantly weakened it and gave the legislature the right to override it. It essentially gutted the independent commission that the voters had approved. And so effectively, the Republicans in the legislature were able to take back control over the process by pulling the wool over the voters’ eyes.
Robert Pease (host):
And Emily, as we know all too well from other episodes and interviews, politicians can be pretty clever with their wool-pulling techniques.
Emily Crocetti (reporter):
Absolutely. Which is why so many independent voters have a problem with partisan politics. I’m thinking about our “Forty Million Missing” episode and how John Opdycke of Open Primaries describes that viewpoint.
[Previously recorded audio, John Opdycke]
I think independents are saying loud and clear, they do not like party politics. Independents have real criticisms of party politics and how it operates, not just the candidates, but the culture of it, the way in which it turns every issue into a political football.
Emily Crocetti (reporter):
And I’m thinking that independent citizens and representatives, who aren’t playing that political football, can play a really vital role on these voting commissions, almost like a non-partisan referee.
Robert Pease (host):
Yup, that’s exactly what we need. A lot more whistle blowing and red flags on gerrymandering and all kinds of political offenses. And in that same episode I love how independent Vermont legislator Laura Sibilia sums up her platform.
[Previously recorded audio, Laura Sibilia]
I don’t have a platform. In fact, I basically refuse to have a platform. My platform is, I'm going to look at that and understand it and ask all kinds of questions and then vote the way that I think is best. So that's a disadvantage in some ways and an advantage to being an independent. But, you don't get fed from the party.
Robert Pease (host):
She’d be great on an independent commission. And we’re about to hear from Trevor Potter how the action has moved down to the state level, including state ballot measures and legal battles. That’s largely because of a major change at the Supreme Court.
Trevor Potter:
The jurisprudence here is changing as the United States Supreme Court has gotten a stronger conservative majority. A feature of its conservatism is that it wants to keep the federal courts out of state redistricting decisions. I think it is unfortunate. And it requires the Supreme Court to do some contortions, because the court held, about 15 years ago, that gerrymandering was in fact wrong, that it violated the U.S. Constitution because it denied people the representation they would have under a fair system. And this culminated in a case out of Wisconsin which Paul Smith of the Campaign Legal Center argued in the Supreme Court, and the Campaign Legal Center had done the trial in the district court. And there was, I think it's safe to say, overwhelming physical evidence, map evidence, oral testimony, that this was an intentional gerrymander. The court subpoenaed the computer records of Wisconsin – it was a Republican gerrymander – so they subpoenaed the computers of the Republican experts who had drawn these maps. And what they found was that they had done some 700 maps and chose the one that was the most partisan to then adopt as theirs and vote through the legislature.
So, that got to the Supreme Court, and Justice Kennedy, who we didn't know was about to retire, punted. Justice Kavanaugh then joined the court majority in the next case that came up out of North Carolina. And here, the court 5-4 simply drew the line and said, these are not cases that federal courts can decide. There is no evidence that there is a task that we know how to do this, that we will be able to tell the difference between too much gerrymandering and an acceptable amount.
That's despite the fact that all of these lower federal courts and circuit courts had proven to the contrary. They had come in, done these trials, produced the evidence, and concluded that they could determine when gerrymandering had occurred. The North Carolina one was particularly egregious, because in the court testimony and in the public statements, the legislator who had drawn these lines was asked why he had drawn ten Republican seats and three Democratic seats in the state of North Carolina, which is roughly a 50/50 state. And he responded that he had tried really hard, but could not find a way to draw eleven Republican seats and two Democratic seats. So the net effect of all of that is that cases may no longer be brought in federal court saying that the U.S. Constitution has been violated by this state gerrymandering. That still leaves open the possibility of bringing cases in state court saying that state constitutions have been violated.
Robert Pease (host):
So there'll be a lot of court activity at the state level. Isn’t it possible for Congress to pass some kind of a federal law to limit gerrymandering at the state level?
Trevor Potter:
Ah, great question. Because the answer is that is certainly constitutionally possible. The U.S. Constitution says that the states shall draw the House districts and determine the time, place, and manner of elections. But it says unless Congress states otherwise. So, the United States Congress could pass a law saying that every state must have an independent redistricting commission and that would be valid certainly for congressional line drawing. The problem with that is that in order to be a law, it has to be passed by both the House and the Senate and signed by the president. And the House has passed a bill that would say exactly that but the Senate has not taken it up in the current Congress. And that's because going back to the partisan issue, the Democrats have favored independent commissions for federal elections because they think there are more states that gerrymander in favor of Republicans than the other way. Both parties do it to be clear. But the Republicans have bigger states and bigger gerrymanders generally. Therefore the Senate Republicans led by Senator McConnell have refused to bring that up.
Robert Pease (host):
And I guess there's an interesting little irony there, because it doesn't really affect Senate elections at all, and yet they're the ones who are preventing Congress from moving ahead.
Trevor Potter:
That's entirely true.
Emily Crocetti (reporter):
So it seems gerrymandering was never easy to combat, and now it’s even more difficult since the Supreme Court has decided it’s a state level issue.
Robert Pease (host):
Absolutely true. And in state after state, common sense voters want independent commissions, but legislatures have ways of walking back these successful ballot measures. As was the case in Missouri or North Dakota.
Emily Crocetti (reporter):
Plus, it’s impossible to get federal legislation if the Senate majority refuses to take up the issue.
Robert Pease (host):
So it might seem like there’s not much hope here. But as with many committed groups we’ve spoken to on The Purple Principle, like Open Primaries, Unite America, Fair Vote, IndependentVoting.org, and others, Trevor Potter and the CLC continue the fight with every available means. I asked him about CLC priorities in the wake of the 2020 election.
Trevor Potter:
Well, one of them, despite it not being an easy task, is still going to be redistricting next year. Because we do think there are opportunities in a number of states to argue that a gerrymander, if that's what the legislature does, violates that state constitution. There are some states that do not have independent commissions yet. But there is a way for citizens to put initiatives on the ballot, and we will be working in those states with local groups to help word those propositions and then inevitably defend them in court. Beyond that, our agenda is a nonpartisan agenda to ensure that voters are able to vote. We spent a lot of time this year in the middle of the pandemic trying to ensure that voters could vote absentee if they wanted to or felt it was safer to do so. And so those are things that I think we know ended up working pretty well this year. I think the figures are about 60-65 million voted absentee, so on paper either by mail or delivery and the others early voting. And that's out of the 160 million who voted. So a clear majority liked having the ability to vote in some way other than in person on election day.
Robert Pease (host):
Well Trevor, as you know, most of our listeners at The Purple Principle are registered Independent or unaffiliated voters. It seems like there’s a recognition on these commissions that an Independent has an important role to play. When did that first become recognized, and is that recognition increasing?
Trevor Potter:
I think it is increasing. Part of the independent commission movement is, are there nonpartisan or are they bipartisan? The notion of bipartisanship goes against what you’re talking about, because it presumes that the world is divided into Republicans or Democrats, and so those sorts of commissions may have seven Republicans and seven Democrats, and one Independent tie-breaking vote. But the country, certainly in terms of voter registration, has a very large number of people who say they’re independents, they don't automatically want to be affiliated with one party or the other. And so I think we're seeing a push to find ways for independents to participate in a system that is legally dominated by the two major parties. So one of the areas that we have been interested in is ranked choice voting, RCV, which has been adopted by a range of cities across the country. More recently, it was adopted in the state of Maine, and in this last election, a version of it, top four with ranked choice voting, was adopted in Alaska. That was a reform that passed in the state of Alaska. As you know, it was not adopted in Massachusetts. It was on the ballot and defeated. But the idea there is to enable independents to run without being spoilers. Because what we know is that generally, if you have a Republican candidate, a Democratic candidate, and an Independent, what happens in voters' minds is they say, well, it's going to come down to the two major parties, so I’d better shift. The idea of ranked choice voting is you don't have to shift. You can still vote for the candidate you like the best, and your vote will not be wasted because if that candidate comes in third or fourth, then you have had a chance on the ballot to say, my first choice is the independent and that's who I want to vote for. But if they don't finish in the top two, then I want my vote to go to this other candidate who might be the Democrat or the Republican, likely will be, so that it means that it is easier for an Independent to run and have people support them, because they don't feel that their votes are likely to be wasted.
Robert Pease (host):
You mentioned the Alaska case. That was a very ambitious ballot initiative with open primaries, ranked choice voting, and campaign finance transparency, all rolled into one ballot measure. Before the results came in, what was your feeling about that initiative? Did you think it had a chance of passing or did it seem like it would be too much at one time?
Trevor Potter:
You know, I am always optimistic when these initiatives get to voters and when they're explained in a way that voters know what the real issues are here. You find even in very conservative states that voters like ethics reform disclosure and ways to ease participation in the system. We saw this two years ago in the Dakotas, where an initiative passed that would have significantly changed the process. And there, the legislature actually went into an emergency session under the state constitution to undo what the citizens had just done, because it turned out one of the ethics reforms would have meant most of them couldn't have jobs with companies that lobbied the legislature as well as being legislators themselves. And so that particular reform hit the legislators in the pocketbook and they went rushing to the Capitol to undo it. But the voters passed it in a conservative state.
Robert Pease (host):
Well let’s go back to Alaska for a moment. Not as conservative a state, more of a purple state, but their ballot measure also included campaign finance transparency. In the wake of the Supreme Court's Citizens United decision, campaign finance reform, such as in the McCain-Feingold bill, are more difficult. Does that mean campaign finance disclosure is about the best we can hope for?
Trevor Potter:
Actually, I think transparency is really important, and we have significant dangers in the failure of disclosure that we currently have. Citizens United at its heart simply said that corporations have the same rights that individuals do to make independent spending that is not coordinated with candidates. And then Citizens United went on to say, however, that spending must be fully disclosed so that voters know who is paying to influence them. And that's the transparency we don't have. And it is clearly constitutional to require that transparency.
Robert Pease (host):
So, Emily. A lot of ground covered there about efforts to combat polarization, including CLC’s work on campaign finance reform as well as independent commissions to prevent gerrymandering.
Emily Crocetti (reporter):
And making it easier for citizens to vote, which was hugely important during the 2020 election.
Robert Pease (host):
Plus initiatives to promote ranked choice voting, which was on the Ballot Measure 2 in Alaska this year. We covered this more fully in Episode 13: “Declaration of Independents, Alaska Style.” Here’s a bit of that.
Emily Crocetti (reporter):
And Alaska is a different kind of state in many ways. It’s dependent on ferry transportation, prop planes, and all kinds of snow machines. Alaska is different politically too. Nearly 57% of Alaskans do not register for one of the two major parties.
Robert Pease (host):
Which might explain why Alaska was the most recent state to have an Independent governor, Bill Walker.
[Archival audio, Bill Walker]
Robert Pease (host):
But what makes Alaska so intriguing this year is that nonpartisanship is on the ballot.
Emily Crocetti (reporter):
And right now it’s early December 2020, and as we record thisepisode, it does appear that Alaska Ballot Measure 2 has narrowly passed in our nation’s most indie-minded state. But it’s currently under official recount, and it remains to be seen how the new legislature will react.
Robert Pease (host):
Speaking of election recounts, I asked Trevor Potter for his thoughts on our contentious 2020 Presidential election, even as disinformation swirls around the results and the Electoral College hasn’t yet met to officially confirm Joe Biden as the next President.
Robert Pease (host):
So, you were highly involved in two campaigns by John McCain for President as his chief counsel. Are we in totally new territory here in 2020? It seemed in this election there was a strategy formulated in advance of the outcome to dispute the result to the outsiders? That seems very different, for example, from what happened in 2000 with the Bush/Gore election.
Trevor Potter:
I think it's different than what we have ever seen in a presidential election, certainly in what I'd call living memory, to have a candidate claim before a single vote has been cast that the election is being stolen and that the way 60 million Americans chose to vote, which is by absentee ballots, was somehow fraudulent and that those ballots were illegitimate is just extraordinary. And I'm almost speechless because it's not true that those are fraudulent votes. They are just as legal as votes cast in person. They're on paper, they can be reviewed. The Republican party has traditionally spent literally millions of dollars encouraging its loyal voters to vote absentee, to vote ahead of the election. And so they would go to states with big retiree populations like Arizona, Florida, California, and they would mail registered Republican voters applications for absentee ballots and follow up with them and call them and say, have you sent them in? And then if they got sick, they didn't feel well, it was raining, they didn't have to worry about turnout because they had already turned out. They had banked those ballots. And so that was a traditional Republican approach. And at that stage, Republicans weren't talking about fraud and absentee ballots. But as you pointed out in your question, what the president did was set up a scenario where if he didn't win, he had already told everyone that it was because of what he claimed were these fraudulent absentee votes.
Robert Pease (host):
For our listeners, who are concerned about the health of democracy, this has been a bit of a roller coaster. Maybe it's reassuring that all of these court cases so far have been decided rather quickly and decisively. But it still seems like there are dangerous moments where there's so much pressure on secretaries of state, such as in Georgia, and on certified commissions in key states, enormous pressure. At times it almost seems like there are circumstances where this strategy could work. Does this mean we urgently need electoral reforms?
Trevor Potter:
I think we dodged a bullet this year. If the election had been closer, if instead of an apparent 306 electoral votes Biden had 270, which was mathematically possible, the bare number he needed, or let's say, you know, even 280, but any one of these states could have been pushed to move its electoral votes from Biden to Trump and changing the result of the outcome of the electoral college. That's incredibly dangerous for our system of direct democracy, of electing a president through the states, because every state law says that whoever wins the most votes in that state is entitled to the electoral votes. And this year the system held, meaning not that one candidate or another won, but that the election officials were able to tell us who got the most votes in each state with certainty and accuracy. And the electors are all lined up to go for the candidate who won the most votes in those states. But what we've seen, and I don't think any of us ever thought it was possible, is a serious argument that state legislatures should ignore the will of the voters and choose another candidate. I mean, that's a true threat to democracy. And as we look ahead, I don't think we can count on being lucky next time that in the election, whoever's ahead, that the election will be wide enough in terms of the margin to avoid the sort of threat that we've seen here this year to the system and the will of the voters. So I think we do need to take a look at what can be done to improve the election system so that there are fewer questions about it. Make it easy to vote as we've done this year, but also make sure that a vote is secure, that the correct checks are in place on absentee voting, that ideally states are counting absentee votings and pre-processing them so that results are coming out at the same time. Then I think we need to take a look at the Electoral College. In particular, I'm thinking of the so-called faithless elector. That's a relic of 200 years ago, when electors were supposed to exercise their own judgment. And now that's not how our system works. The voters have exercised the judgment. The electors are simply the vehicle by which the voter's judgment is carried out. And the Supreme Court has said that States may bind electors and require them to vote for the winner of the popular vote certified by the state and can indeed replace them if they don't so that you can ensure that the state's votes go according to state law. Interestingly, only 14 of our 50 states currently go that far and say, you must vote for the certified winner in the state. And if you don't, you will be replaced. So a small, but I think important, reform would be to have 50 states say, you must vote for the winner or you will be replaced. That would at least make people sleep sounder if you have a very close election.
Robert Pease (host):
But absent some of those reforms, is it fair to say that we might see more elections like 2020 in the future and less like the year 2000, when things were resolved in a procedural way?
Trevor Potter:
I worry about that. I think once you've opened Pandora's box, it's hard to close it. And Pandora's box here is refusing to accept recounts and going to court to argue that the courts should throw out huge numbers of ballots to get a different result or to change the election from individual voters to a state legislature. Once you've made those arguments, I think they're available for the next person to come along and use them unless we make some changes in this process.
Robert Pease (host):
Okay, we’ve briefly mentioned some of the secretaries of state and certifying commissions who were put under great pressure. Do you have a particular hero in this battle who really stood up under pressure and did the right thing?
Trevor Potter:
I think if you look across the country, there were a number of officials who were really clear about how the system worked, what the security aspects were, and because of the partisan divide we have, I think here, the heroes we have are the Republicans who were willing to stand up and say, we’ve taken a really close look at our state and our election and there is no evidence of fraud. And I say they’re the heroes, because obviously there are a lot of Democratic secretaries of state and Democratic officials who said the same thing, but they weren't standing up to pressure from their own party. In law, there's extra credibility that is given to what's called an argument against self-interest, meaning that if you admit to something that may actually harm you, you're more likely to be believed. And so we saw it literally across the country. In Arizona, we had canvassing officials who were loyal Republican Trump supporters going out of their way to explain why the election was legitimate and how they had counted the votes, and how the machine tallies were accurate and they had checked them against the ballots. You obviously saw it out of the Secretary of State in Georgia. You saw it out of a Republican state board officials in Michigan. They could have gone the other way. They could have done what many of their fellow Republicans did, which is to try to stay quiet or just say, well, the president is entitled to bring challenges and not defend the integrity of the system.
Robert Pease (host):
Speaking of Republicans staying quiet, it's hard to imagine that John McCain would have been one of them, and you knew him quite well. What do you think he would have said and done in this situation?
Trevor Potter:
Well, yeah, I've actually heard Cindy McCain, Senator McCain's widow, say that she will never tell people what John would have done or would have said because well, as she knew him, he was a wonderfully unpredictable fellow. So I'm not going to try to put words in his mouth, but I will say that in all my years with him he absolutely never questioned the will of the voters in terms of thinking that he'd like a do-over, that he wasn't going to accept the results. You know, there's a great line, and it's not McCain's line, which is: “the people have spoken – the bastards!” But I think, you know, McCain, like other American politicians, accepted the results of elections, including the ones he lost. We all saw him give an incredibly gracious concession speech when he lost to Senator Obama in 2008. I can tell you as his lawyer, he was very interested in making sure the election was legitimate.
Robert Pease (host):
That was our special guest today, Trevor Potter. He was general counsel to John McCain during his two Presidential campaigns, as well as a former Chairman of the Federal Election Commission. Currently he’s the President of the nonpartisan Campaign Legal Center.
Emily Crocetti (reporter):
And for listeners of my generation who might not know a lot about John McCain – war hero, presidential candidate, active and pragmatic legislator in the House and Senate – there’s a great new book out about him called The Luckiest Man by Mark Salter.
Robert Pease (host):
Next time on The Purple Principle, we’ll take a close look at the rise of polarization between the two major parties, as well as uniquely different problems within them. Our featured guest will be historian and columnist Geoffrey Kabaservice, author of the seminal book, Rule and Ruin, and Director of Policy Studies at the Washington think tank, the Niskanen Center.
Geoffrey Kabaservice:
I think this is actually a case where the vast majority of the Republican party is being loyal to the individual of Donald Trump rather than to the party as such. And the fear among Republican legislators certainly has been that if they were to come out and openly say that Trump has lost the election, that he should concede, that this would turn the party faithful against them and their political careers would be over. It's extraordinary, really, and I think largely unprecedented in American history, that Donald Trump has taken ownership of the Republican party in this way, such that the party has no real independent existence outside of his candidacy and presidency.
Robert Pease (host):
Please join us for that episode, share us on social media and share your purple tale at purpleprinciple.com. This is Robert Pease for the Purple Principle team: Emily Crocetti, staff reporter; Kevin A. Kline, audio engineer; research and fact checking by Emily Holloway and Johnnie Dowling. Special thanks to our awesome composer Ryan Adair Rooney for the awful and very uncharacteristic guitar sound effect sound earlier in this episode. We made him do that.