3.11.2021 | Season 2, Episode 2 | 1:12:17
Walter Dellinger, former acting U.S. solicitor general, Douglas B. Maggs Professor Emeritus of Law at Duke University, and partner at O’Melveny & Myers
Seth Waxman, former U.S. solicitor general and partner at WilmerHale
Donald B. Verrilli Jr., former U.S. solicitor general and partner at Munger, Tolles & Olson
- David F. Levi leads a conversation with Walter Dellinger, Seth Waxman, and Donald Verrilli about their efforts to anticipate and prepare for a variety of potential legal challenges and disruptions to the 2020 presidential election.
- With help from numerous volunteer lawyers and scholars, the former solicitors general prepared for three main scenarios: how the executive branch might use its power to disrupt the election process; what state legislatures or governors might do to delay or circumscribe the election or to discount certain categories of votes; and what might happen after the election with regard to challenges to electoral college votes or certification of ballots by the states.
- They highlight some of the challenges they were well prepared for and some of the challenges they had not anticipated, particularly the storming of the Capitol on Jan. 6.
- They also discuss areas in need of reform in order to eliminate confusion and opportunity for future manipulation of the election system.
Listen to the podcast
(lightly edited for clarity)
David Levi: Hello and welcome to Beyond COVID, a podcast and video series that explores how our legal system is changing in an almost post-pandemic world. I am David Levi, director of the Bolch Judicial Institute and president of the American Law Institute. We have recently experienced one of the most extraordinary presidential elections in our history. In the midst of a pandemic, more Americans voted than at any time in our history. That was the good news, yet the election quickly became controversial. President Trump refused to accept the outcome and claimed that the election had been stolen from him.
There were more than 60 lawsuits filed on his behalf across the country, challenging the election results. In addition to these efforts, President Trump began a series of unprecedented attempts to pressure state election officials and others, including the vice president, in an effort to overturn the outcome. These efforts culminated in the attempt to disrupt Congress’s certification process at the United States Capitol on January 6. Today, we will hear about the work of three former solicitors general who anticipated and spent months preparing as best they could for what they anticipated would be President Trump’s attack on the election outcome. Joining us today are
- Walter E. Dellinger, who served as acting solicitor general during the Clinton administration and as a Professor of Law Emeritus at Duke Law school, my colleague, Walter;
- Seth P. Waxman, who served as solicitor general during the Clinton administration and is a partner at WilmerHale and a member of the council of the American Law Institute, Seth; and,
- Donald B. Verrilli, who served as solicitor general during the Obama administration, and is a partner with Munger, Tolles & Olson LLP, and a wonderful person, Don.
What an honor to have the three of you with us here today. So we’re here with three former solicitors general who’ve had amazing careers in the law, and continue to have amazing careers. And they played such an important role in the aftermath to the last election, which was an unusual experience, let us say.
Seth Waxman, you put together this team, I think you’re called SG3. Why don’t we just get out right now at the beginning, that you guys have hoodies, let’s see them. There they are, SG3, you are a legal strike force. Seth, you were the creator of this amazing elite legal seal team. Tell us about that, how did that happen?
Seth Waxman: Sure. I just want to say this experience, which began at least for me in late March or early April last year, has all the characteristics of both a never-ending nightmare and a never-ending dream come true. As it happens, I guess never-ending isn’t right, they’ve both ended, but the memories will always be there. For me, at least when it started, I can’t remember whether it was in March or early April, but I often have the habit of waking up at three o’clock in the morning when there’s something really on my mind, usually work-related. The way that I typically deal with it is to go down to my study and spend an hour working on whatever it is that is on my mind, and after an hour, I feel like, “Yes, I’m ahead of the day already, and it’s not even morning,” I go back to sleep like a baby.
But what I was waking up and worrying about was whether we were going to actually have an election and whether the popular results of the election would be allowed to determine who the next president and vice president and members of the Congress would be. Donald Trump had already started talking about how the only way he could possibly lose the election was if there was massive fraud. He couldn’t guarantee that he would accept the results of the election, and all these sort of ominous things that I think very few people in our history had ever thought they would ever hear from a president of the United States. And I started waking up in the middle of the night thinking, “Oh my God, what if he cancels the election? Or what if he federalizes the National Guard to ostensibly protect, but in reality intimidate voters? And what if he just declares that mail-in ballots are invalid or so tampered by fraud that they can’t be counted or that state legislatures, rather than the people get to decide who the presidential and vice presidential electors are?”
And so true to form, I started getting up and spending an hour adding to this growing list of these various scenarios that I kept thinking about when I was actually up in the morning and awake. I’ll look at these things and realize this is just midnight terrors and not something that is real, but it kept going. And the list got to almost four pages of these scenarios, and I called a good friend named Fred Wertheimer, who runs a nonprofit with which I’ve worked for many years on election protection and campaign finance stuff. He told me that he was worried about the same things, too, and that why didn’t I organize a project for his group, Democracy 21? And I said, “That’s great.” He thought that there actually might be funds available to fund something like this in the name of good government, not really on behalf of one candidate or another.
So I started recruiting people from my law firm to work on these projects. And it didn’t take very long to realize that although WilmerHale was a very big law firm, it wasn’t big enough to remotely deal with all of these scenarios. And so I thought we need to make this a project, and a bigger project. And honestly, I reached out to Walter and Don, and only Walter and Don, figuring that if we could all do this together along with lawyers at our firms and at other firms, this would be a dream come true.
We more or less travel in the same professional circles, but honestly, it’s the great exception rather than the rule that I get a chance to actually work with Don or Walter. The idea of not only seeing them and talking with them about these difficult problems all the time but actually working together collaboratively was just like a dream come true. And so I reached out to my two friends and they both said, “Yes, we’re game.” And Fred was more than delighted.
We started thinking about how we would divide things up. It seemed like the one thing that we needed to know was whether, in fact, this entire effort was already being done by somebody else. And since the most logical plaintiff in any litigation challenging any of these scenarios would be Vice President Biden and because nobody was really thinking that he was either inclined or able to do any of these things that we were worried about, I reached out to the campaign to Chris Dodd and Bob Bauer to basically say, “We’re thinking about doing this, what do you think?” And they were enthusiastic. Bob was like, “We haven’t started anything like this, but this would be absolutely fabulous. The one thing we probably should do is stay in touch with you and coordinate, so we won’t have to reinvent the wheel and replicate what you and Walter and Don are doing.” That got me very nervous because although I think there would, in fact, be nothing legally wrong with us maintaining an independent non-partisan effort that kept in touch with other relevant groups, including the presidential campaign, there are rules involving proscribing coordination with political campaigns and the proscription against undeclared excessive campaign contributions.
Rather than getting into a debate or putting our law firms or the Biden campaign or Democracy 21 into any sort of news story about how we’re making excessive campaign contributions or coordinating in violation of the laws, the three of us decided that we would just forget our dreams of actually getting paid for this work and sign up as individual volunteer lawyers for the campaign, and we presented it to them and that’s how we got started.
David Levi: So that’s very exciting. You had your dream team put together and now you had your structure. Instead of being free agents, you joined the Biden campaign as volunteers and now you have to decide how to organize yourself. So how did you organize yourself? And then I’d like to ask each one of you about your own particular area.
Seth Waxman: I think it might’ve been the somber voice of reason and rationality, a brother of virility, who basically said, “Okay, we got a long scary list here, and we’re going to try to find volunteer lawyers to do all these things, but we have to figure out some way to split it up.” Don, you’ll correct me if I misremember this, but I think Don had said that he and colleagues had done some work on federal emergency powers, and perhaps if we looked at all the scenarios that I had drafted up — there was a discrete list of scenarios leading up to the election, a discrete list of things that could happen on election day, a list of things that would happen between election day and the meeting of the electors in December, and then a list of things that could happen after the meeting of the electors up to and including not only January 6th but inauguration day.
What Don suggested was, “Look, we’ve been looking at some of these federal things, why don’t I try to organize teams and look at all the things that either President Trump or the national government could do in order to interfere with an election, the fair conduct of an election, or a fair accounting of the popular results of the election?” And my recollection, which is often faulty, is Walter said, “Look, I’ve been thinking about the meeting of the electors and the joint session of Congress ever since Al Gore’s campaign. And it’s really interesting, and there are some very complicated unresolved questions, why don’t I take everything that happens from the time of the electors until the time that the new president is safely inaugurated.” And that seemed fine.
I was responsible for leading teams that were looking at things that could happen either by virtue of an affirmative act of the state legislature or state governor, or as a result of litigation brought by the Trump campaign, Trump supporters, or private citizens seeking to require state governments to do all sorts of things that I thought would constitute unlawful and unconstitutional interference with a full and fair vote, leading up to the meeting of the electors. So Don and I split it up for everything from day one all the way up until, I guess it was, December 12th. And Walter took from December 12th on.
Walter Dellinger: Can I interject? I’m Southern and something of a slacker. So I thought if I’m to take January 6th, it would never get there. And so, I can easily be responsible for that.
David Levi: That is funny. Why don’t we do this, why don’t we go to Don, since you have the before the election [period], and then we can go back to you, Seth, because you have sort of some specialty topics within that same time period. And then Walter, we’ll go to you for that uneventful period after the election. And then we can, all three of you, can kind of chat about some of these legal issues that may still be outstanding. So Don.
Donald B. Verrilli: Sure. My recollection is just like Seth’s about how this unfolded, and all credit to him for taking the initiative here and getting it up and going. I share Seth’s feeling about it all, too, that it was at the same time one of the most exhilarating and rewarding experiences I’ve had as a lawyer and one of the most upsetting, spending month after month staring into the abyss and coming to appreciate just how fragile our whole constitutional system is and how much of it actually depends on people acting with good faith and not trying to push on the soft spots in our system to the point where they puncture them.
My focus was on what ways could federal power be deployed by the executive branch to disrupt the electoral process? And it was influenced, I would say, a great deal by things that were happening in the country in June of last year. Two in particular, the deployment of federal troops in Washington D.C. in response to the Black Lives Matter protests, and I think it seared in all of our consciousness back then — those helicopters flying over the streets of Washington D.C. and the armed federal forces clearing out Lafayette Square — realizing, “Yeah, well, it’s not out of the question that something like this could happen around election day.”
Then, the other thing, of course, was the deployment of DHS forces to Portland Oregon to protect federal buildings and property, they’re under various authorities there. One thing we focused on was what kinds of authorities can the president invoke to deploy troops or other federal forces in a manner that might disrupt the election? And what can we do about it? Then we looked at the many various ways that the Department of Justice might exercise its powers in a way that could deter voting by mail, cast suspicion on the legitimacy of voting by mail, or even further disrupt the electrical process. So we canvass the various voting rights statutes that could have been perverted in our minds, at least the nefarious purpose of actually undermining the electoral process, and did very substantial white papers on whole ranges [of situations]. Just my little group alone probably had 15 or 20 white papers, and then we prepared pleadings.
Not every one of these situations was equally amenable to a judicial response, but a lot of them were. So we analyzed who can be a proper plaintiff here? Who can get standing to challenge the president’s invocation of the insurrection act? What statutory and constitutional limits would there be on that? And how do we fashion that into action for a preliminary injunction? We just went all the way through every possible scenario that we could contemplate at the federal level and figured out what our best response would be and had it ready.
I would say, it was probably by mid- to late September — we basically, not just for my group, but for all of them and especially Seth’s group, which was the biggest sprawling, massive, the whole thing — we really had comprehensive pleadings ready on just about everything by the latter part of September and really were ready to go.
Once we work through Walter’s stuff, we should probably talk about the ways in which these pieces fit together because that was something that I remember very vividly. We would be on email or on the phone all the time, the three of us, in addition to our conversations with the campaign. I remember around the middle of August, it starting to distill that, actually, the problem here is not necessarily one discrete exercise of power by the federal government or one discrete action by the state, but the kind of negative synergy that could come about if all of these things came together in the wrong way in addition to President Trump’s constant rhetoric about fraud through mail-in balloting and what if the DOJ added fuel to that fire by making allegations of fraud around the election. Then what if that, in turn, influenced state legislatures to step in and say, “We’re going to rely on the predicate that the Department of Justice has set in invoke our residual constitutional authority to dictate who the electors are going to be awarded to.” And then, in turn, what would happen when all of that got dropped into Congress’s lap later in the process?
It was the kind of a coming together of all those things. Sadly, we got it right. It didn’t actually come to pass, but the things we determined we should be most afraid of actually were a realistic prospect by November, December of last year. So I guess it was not imprudent to be worried about them the way we were.
David Levi: You didn’t mention the pandemic, was that within Seth’s jurisdiction or was that within yours?
Donald B. Verrilli: I think both, it kind of depended. We thought about to what extent could the president declare a national emergency and shut down voting? We thought that was going to be a hard, a heavy lift for them because the Constitution delegates to the states the power to prescribe the manner of conducting the elections in the states. Nothing was inconceivable. We thought that was sort of our basic rule going forward, that we should assume nothing was inconceivable here. And we did definitely look at that, but it didn’t loom as large as you might think at least on my fear index. It wasn’t as high as other things on my fear index.
David Levi: Yeah, that’s interesting because there had been some talk coming out of I think the White House (I’m not certain) about postponing the election. But then you were ready for that. Okay, let’s go to Seth. You were primarily worried about state legislators, I think that is what you said earlier.
Seth Waxman: The teams that I organized, there were about 20 of them, 20 separate teams of volunteer lawyers, that were looking at things that states or state authorities might do to postpone the election, prevent the election, circumscribe the election, discount certain categories of votes that had been cast or would be cast, and then essentially interfere by changing the rules of the choice of electors after the election and before the meeting of the electors.
We focused initially on, I think it was, 18 states in which it looked like, well, I should also say it also included everything other than what the federal government might do on its own. So it also included state and even local authorities. We worried a lot about what might happen at polling places in inner-city and minority districts. Would there be vigilantism as there were lots of threats of and if so, was there a litigation response to it? And if there wasn’t, what should we be doing in terms of coordination with state and local law enforcement? What if state and local law enforcement were deployed in a way that was ostensibly to protect voting but in the real world had the effect of depressing people’s willingness to go vote.
So we identified and divided all of that up into things that we were worried that state authorities on their own might do. And we had a series of teams from five different, they weren’t really law firms, because these were all individual volunteer lawyers but headed by partners at five different law firms, including mine. Then we identified seven different categories of bad things that might happen provoked by litigation against state and local officials. Running from litigation to postpone the election day because of the pretext of the pandemic or litigation to revise existing rules with respect to mail-in balloting or mail-in ballot dates and received by dates, to even, I mean, we had a team that was addressing potential challenges in certain states to the legitimacy of Kamala Harris’ candidacy, because there had been some conservative, I guess you would say, scholars that had been opining that although Kamala Harris was born in the United States she was not a “natural-born U.S. citizen,” because her parents were in California on student visas at the time that she was born.
We had, with respect to all of these 20 or so teams, not only white papers, addressing all these possible scenarios, including many that actually came to pass in litigation between election day and almost inauguration day in the form of something like 60 different lawsuits. We had not only white papers on these issues, but we had template pleadings drafted for each of, up to 15 states. Would we be in state court? Would we be in federal court? Did we want to be in state court? Did we want to be in federal court? If we were in federal court, what were the Pennhurst problems and raising state law issues? It was an incredible body of what we hoped would be a completely unnecessary work product, but hundreds and hundreds and hundreds of model pleadings dealing with different scenarios. So that’s what the teams that I was extensively supervising were doing.
In addition to that, Don was talking about the fact that Don and Walter and I were in touch all the time about things and overlapping issues and how we were each doing and gnarly questions that we were confronting. I also had very regular meetings with the various teams that were working in the various states and on the various different scenarios and helping them coordinate with each other so that everybody could make the most use of everybody else’s thinking and work product. In terms of the level of effort, it was like the proverbial land war in Asia.
David Levi: Let’s just stay with this for a minute here. There were many court cases after the election. I think you said 60 or so. And I think there were at least that many. I’m interested in two things: one, did your teams go in on behalf of the administration, the new president? And second, how would you evaluate how the courts — state and federal — did their job during that very hectic period?
Donald B. Verrilli: We should give a shout-out to Marc Elias and his team of litigators who were the primary litigation counsel for the campaign and the DNC. They were the ones really on the ground litigating because most of the issues that we actually fought about in court were ones that arise or at least can arise in a normal set of circumstances.
We played a role sort of trying to think strategically with the campaign about what to push and what not to push and how to think through all those things. And then we would surface occasionally. We were involved publicly in the Pennsylvania case that went to the Supreme Court, but in general, we were doing more of a strategic role of what Marc and his folks were on the ground, although very closely coordinating, especially Seth and his teams. I think they were drafting and editing the pleadings.
Seth Waxman: I should say that as of election day, our firm agreed to be retained by the Biden campaign and the DNC to actually undertake representation on a theory that Joe Biden was no longer a candidate, he was now the elected president-elect. And I think probably out of the 65 or so cases, we actually entered appearances and participated as counsel or co-counsel with the Perkins Coie team and state council in about, I don’t know, a good 40 of the cases, maybe more.
Our mandate from the campaign was similar to what the three of us had devised as what came to be known as the SG3 project. Nobody can come close to equaling the knowledge base and prowess of the Perkins Coie team in terms of the kinds of things — the kinds of legal issues and challenges — that come up in normal elections. And they certainly, as Don said, came up here. What we were asked to do was to become involved in anything that was unusual, that wouldn’t have been conceived of before, like this notion that you could simply throw out all mail-in ballots, or you could override a determination of the state election official about how many days after election day could a ballot postmark by election day be counted, or did state legislatures have the authority after the election to actually decide that, no, they were going to pick which set of electors were the electors? Those kinds of challenges, which were more unique, were the stuff that we were actually involved in.
Donald B. Verrilli: Yeah, and there’s a great example that maybe illustrates the way in which we work together with respect to this question of, are you going to count mail-in ballots that arrive after election day and do state courts have any authority to allow that? An issue immediately arose about what our position ought to be with respect to what states should do with those ballots. We made the judgment very quickly as our SG3 team that we ought to press the state officials in every state to segregate those ballots out. The reason we did that was because of the overarching concern we had about the intervention of a state legislature.
We didn’t want to create any possibility that there could be an argument on the part of the state legislature that the entire pool of mail-in ballot was tainted, and therefore, couldn’t be considered, and, therefore, the legislature would have no choice but to step in. We thought the best safeguard against that was to just insist that these ballots be segregated in every state. So that was the way in which all of us kind of fit together, those kinds of judgments.
David Levi: That’s interesting. Well, let’s go to Walter, and Walter, you were pretty confident that you weren’t going to have to do too much. But it turned out you had a pretty significant role after the election and after the electors. Why don’t you talk about what you were prepared for? Were you prepared for Jan. 6? Because that was a startling event in our history.
Walter Dellinger: Well, in one sense we were not prepared for a mob onslaught. Although, I think it was Don that was raising the question early on about once the president had called his tens of millions of followers to come to Washington, how we would physically be able to get representatives and senators to the Capitol building.
Donald B. Verrilli: That was Seth actually.
Walter Dellinger: It was Seth, yes.
Seth Waxman: Don and I constantly outdid each other for who was the most paranoid of the three of us.
Donald B. Verrilli: We’d get the paranoid of the day award.
Walter Dellinger: Just to go back briefly, David, to the second part of the question you asked about how well did the courts perform their role. I think we shouldn’t leave that, particularly given the Judicial Institute’s sponsorship for this with the ALI, that they really did an extraordinary job. I have never had an experience in a very long time in law where I was more impressed with just the way the civil justice system operates.
We think about the ideological determinations of our highest court on major issues, but in terms of actually sorting out the wheat and chaff, the facts from just the fake made-up issues, they do a very good job regardless of whether they were Republican or Democratic appointees, regardless of whether they’ve been appointed by President Obama or by President Trump.
The way the process works very simply, I was so struck, that the argument was made recurringly in press conferences that Republican observers had been shut out of the counting rooms, that the counting of ballots was taking place in secret, with paper put up so nobody could see inside, so obviously they’re hiding something. And that was sort of a background against the issues. Well, when we get to court, it happens that a judge wants to know, what is your proffer of proof that Republican observers were excluded? And they put up a Republican who was an observer who has an affidavit that he was excluded from entering the Detroit counting facility, which is one item approved. The counter-affidavits come in, and they show that there were 200 Republican observers and more than 200 Democratic observers in the counting [***Audio Interrupted***] Nobody gets in until people leave because it was overcrowded, but he had no idea what the party was of the people who had to wait outside, and there was no answer to that. That’s the sort of thing that happens in the civil justice system.
But one of the judges in one of the cases said to counsel for the challengers, “Were there any Republican observers in the counting room?” This is in another state, and the answer was a word salad about the importance of transparency. The judge leans forward as one sort of feels through the transcript and says, “Counsel, I’m asking you as an officer of the court, were there Republican observers in the counting room?” And there’s a very, one imagines weak, “yes.”
“Not so sure.”
“Give an estimate.”
“A number of greater than zero.”
I mean, that’s what happens when, that’s not sort of large ideology, it’s just, what are the affidavits and the counter affidavits, and that the issue of secret ballot counting just melts away once it is subjected to the kind of process we have in court where lawyers are officers of the court.
We sort of divided it up roughly chronologically to begin with. Don was going to do the black helicopters prior to election day. Seth was taking it from there. I had, back at the time of Bush vs. Gore, been prepared to argue had Gore won the litigation that the Florida legislature could not, after the fact, change the method of a manner of choosing electors. The Constitution gives sweeping authority to state legislatures to determine the matter. Can they say on November 15th, “Never mind what happened on November 3rd, we’re changing the manner of choosing electors.” So that was one issue. We sort of subcontracted an excellent memorandum from Marty Lederman at Georgetown Law School, an exhaustive memorandum on the legality of post-election day resolutions by state legislatures, changing the manner of choosing electors. That was the predicate for Seth’s teams to make that operational in terms of being ready at every critical state to challenge the authority and the state legislatures to do that.
That was really, I thought, the two greatest risks that we faced, one was that the state legislatures would presume to use that authority. I think it turns out there was more political resistance to that than we might have thought, even if they had this argument of authority, that having voters, Republican, Democrat and Independent who had stood in line for hours and hours on election day, only to be told by their state legislature “never mind.”
Don was worried the way these things all work together about the synergy that would come if they had some reason to cast doubt on that vote. And therefore said we can’t, the legislature, we simply can’t trust what happened on election day for any one of these various reasons. And therefore, the legislature has to — itself — make a judgment and award the elector, that was a very serious risk. And we were certainly prepared to litigate that.
There were a few that emerged that we hadn’t anticipated until shortly before the event. One of them was in Wayne County in Michigan. The canvassers have to certify the election at the county level and it goes to the state level, and the state board then certifies the results. Michigan provides that there are four members, two from each party on every canvassing board. And the president of the United States was, himself, contacting two Republican canvassing board members trying to get them to resist certifying the count for Wayne County, which is Detroit, so that they would be deadlocked two to two [board members], which for 24 amazing hours happened. They simply wouldn’t. That’s when we were scrambling. We saw it coming a few days ahead of time, I think, and were scrambling to be ready to go into court on that issue, mandamus the canvassers, that was going to be a top undertaking.
The one memo that we had put off until later was limitations on the authority of the vice president, that would be Vice President Pence. Limitations on the authority of a vice president in his role as presiding officer over the January the 6th count. We got increasingly nervous about that as time went on. We saw that contrary to how the press was viewing the unfolding post-election matter that President Trump was dead set on relentlessly doing whatever he could to stay in power.
It didn’t necessarily hurt us in litigation, but the accepted larger structure was that the president was being a bad sport, a petulant, a sore loser, and that his folks were saying he’ll come around, he just needs to work through the loss. So we had initially prepared a memorandum for January the 6th on the role of the vice president and put it off on the grounds that it was too remote a possibility.
As we got closer to January and it became clear that the president was going to use every lever of power he could to stay in authority, including, I think history will show what enormous and unrelenting pressure he must’ve placed on Vice President Pence, and we know spent considerable time the night before January the 6th. We also knew to be concerned that Congress go ahead and assemble on January 3rd and not postpone that to be closer to January 6th to make sure that senators and representatives could actually be in Washington and not be caught in some sudden snowstorm.
Seth Waxman: I think Walter volunteered. I know it was me and probably Don as well, that if necessary, if the weather were inclement in the first weekend after I think the 3rd when they were supposed to come was a Sunday, that the three of us would hire black Cadillac Escalades and drive out to Wyoming and Idaho and Colorado, and just drive Congressman to Washington D.C. to be there.
Walter Dellinger By the end, the biggest notebook I had was the January 6th issues — getting ready for it — because that’s when we knew we were in a very, very serious battle. And one of the problems would be, if any of these state legislatures had yielded to the pressure, the president calling state legislators to the White House, state legislative leaders from Michigan. If any state had broken, we were worried about where this would lead. But we were fully prepared to litigate that. But from our perspective, we’re greatly relieved, we’re impressed at how well the courts operated, but it was a nearer thing than one would have wished it had been, right, guys?
David Levi: To quote Wellington after Waterloo, “It was a near run thing.”
Seth Waxman: One of the things I guess I would just add to what Walter said is, as it happened, the date for the meeting of the electors went off fine, but there were lots and lots of scenarios that we worried about, the rather sparse language in the Constitution. And for that matter, even in the Electoral Counting Act, which I think each of the three of us came to learn by heart, even in the more highly reticulated sections, like Section 15, which governs the joint meeting, about where do the electors meet, and what happens if they’re prevented from meeting, and do they have to meet in the State Capitol? And what if the state capitol won’t allow the Biden electors to meet there? What happens if even in a state where Biden won the popular vote, the Biden electors meet, but the Trump electors present themselves and have their own meeting? And there are competing slates of electors that will appear on the 6th?
Then we had lots and lots of pleadings and lots of lots of states addressing those scenarios. To Walter’s point about the role of the vice president and the interaction between the provisions of Articles 1 and 2 and the relevant Constitutional amendments dealing with the joint session and the inauguration, I mean, we were not prepared with a litigation response to an armed insurrection of the Capitol, both because neither Don nor I was so paranoid that we actually thought that there would be an armed insurrection.
But also, if there were going to be an armed resurrection, one thing is relatively clear, which is a litigation response would not be in the pantheon of options for people who were worried about preventing it. But we did have, in particular, we had a team of volunteers who would work with me and with Walter. We had a complete set of papers ready to go in court in the event that some procedure that the Electoral Counting Act requires was not followed, including an assertion by the vice president that he had a non-ministerial role in announcing the vote, and lots and lots of research and thinking about exactly what happens in the joint session like what happens to those electoral votes and who counts them. So we were ready with litigation, but not with litigation against what actually happened.
David Levi: Well, suppose the vice president had said on January 5th that he intended to exercise discretionary authority over which electoral members’ votes count. Would you have gone in for some sort of declaratory relief action and where would you have gone? Would that go right to the Supreme Court or would it go elsewhere?
Seth Waxman: The answer is yes. We had pleadings ready to go to every possible level. I mean, a lot of this would have depended on the exigencies of the circumstances. Unless everybody’s deleted them, somewhere we have a pretty complete set of a complaint request for a TRO [temporary restraining order] and full supporting briefs on this question.
David Levi: Let’s circle back to each one of you in the following way. You’re such great lawyers, and great lawyers are really good at what if when they’re planning a big litigation. What if the courthouse falls down? And they plan for everything, and you use those skills here. But you learned a lot from it. Don made this point, what you learned is how uncertain and uncharted many areas of the electoral structure are. It’s dependent on people following past practice and acting with restraint and that sort of thing. But what issues persist, would you say, one or two from your portfolio that you think we are likely to confront again in one way or another and we need to bring to some kind of resolution.
I’ll tell you one thing that I’ve heard from some judges, which is that in the run-up to an election, they are very uncertain about their authority to handle or to deal with different procedures. Let’s say in the three months before an election, should they act, not act, what degree of authority can they exert when the Constitution seems to give this to state legislators? They’re very uncertain about that. Are there other issues like that that you see as major and is likely to persist? So maybe we start with you, Don, if that’s okay.
Donald B. Verrilli: Sure. So that one is definitely one, and it’s got the dimension of what can federal judges do under federal law, and then the dimension of what can state judges do consistent with the federal Constitution. So there’s a lot of uncertainty surrounding that. I’m a little less worried about that being an existential threat in the future because so much of that this year came out of the pandemic. We shouldn’t assume that conditions are always going to be like that.
The thing that worries me the most is not so much anything that ended up in my bailiwick, but the one that Seth and Walter focused on about the role of the state legislature after the fact. I think if state legislatures were to say, after election day, “I’m changing the rules, we’re changing the rules, retroactively and claiming the power to award the electors,” I think I’m very confident that that would not survive judicial challenge. The problem will be is, if it’s a situation where the election in a given state is really close, and that state’s determinative, even Florida all over again, Florida 2000 all over again. What’s to prevent the state legislature from saying, “We can’t rely on these election results because there’s too much circumstantial evidence of fraud in the electoral process, and we are stepping in?” There’s no clear answer to that. There’s no clear answer to how that should get resolved. I see that as a big and real worry.
One thing I will say, too, is that I feel better about, with respect to January 6th, because of what Vice President Pence did, that there is now historical precedent that the answer is that the vice president’s role is only ministerial, and that probably will carry a fair amount of weight in the future. So I think that’s important.
David Levi: Seth.
Seth Waxman: I do think that there is a large unanswered question about the scope and force of what everybody has been calling the Purcell Principle, which derives from a Supreme Court opinion of that name, that posits that the general principle that in the immediate, the short-term run up to an election, federal court shouldn’t be interfering or even expressing any opinions about what the voting procedures should or shouldn’t be, notwithstanding plausible claims of a federal statutory or Constitutional violation. Nobody knows to your point, David, nobody knows how forceful that principle is, how unexceptionable that principle is, and what is “in the run-up period” mean. What does it mean?
I mean, I think Don is right that so much of what happened this last election cycle was driven by the exigencies of a pandemic, and state legislative and state court, state Supreme Court, and secretaries of state responses to that. It’s not likely to be persistent, but I do think that the uncertainty about where this principle comes from and what it stands for and what its force and breadth is are questions that are going to be with us and somehow need to get resolved probably unfortunately through more litigation in the Supreme Court.
I also think that there are lots of unanswered questions about the meaning of the provision of the Constitution that says that the time, place, and manner for choosing federal representatives shall be made in each state “by the legislature thereof.” We know from the Arizona redistricting case, that the legislature thereof can mean something more than the brick and mortar legislature. We don’t know, as in the case where Don was actually counsel of record for the Pennsylvania Democratic Party, the issue that came up to the U.S. Supreme Court, where the Pennsylvania Supreme Court had interpreted a provision of the Pennsylvania statute regarding the number of days after election in which a properly timely postmarked ballot could be received was consistent with the federal constitutional delegation of the rulemaking authority in that regard to legislatures. I think those issues continue to persist. There have been arguments back and forth about the constitutionality of the Electoral Counting Act. None of those questions were broached or implicated as it happens, but they’re still around.
Walter Dellinger: That’s really, I think, an area of serious concern. The January 6th meeting of Congress was governed by the Electoral Count Act of 1887, and there’s a large question about the extent to which Congress sitting in 1887 can tell the Congress sitting in 2025, or any other year, how they want to go about determining the validity of the electors.
I think we are heading towards a situation where two sets of electors are submitted. And we’ve ruled out the vice president as being the decision-maker by this new precedent, as Don noted. But the question is: Is the governor certification dispositive? The Electoral Count Act says so, but there’s nothing in the Constitution that mentions any role for the state government at all. The electors themselves submit their (indistinct). And you’re going to have two sets of electors claiming they are the electors properly chosen, submitting electoral votes to Congress, and a debate about whether it is Constitutional to the Electoral Count Act to require deference of that sitting Congress to the governor, for example. And the Electoral Count Act itself, apart from questions of its constitutionality, there is a sentence in the Electoral Count Act that goes on for a couple of pages. I remember Seth saying he searched in vain for a period, that is we did have elaborate memos on what that process should be like. And the critical phrase of the Constitution is one of those uses of the passive voice, and the vote shall then be counted, without saying exactly by whom, which is a very important question.
David Levi: I’d like to ask two sort of big picture questions that get a little bit bigger as I go, the second is bigger. But let’s just start with the election process. You’ve identified some pretty fundamental questions. And when I talk to people who have a great deal of knowledge about elections, one thing they will say is how varied it is.
We have this complicated system in every state, and sometimes every county is different. We’re now heading into the use of mail ballots like we’ve never done before. And we have a post office that no longer postmarks most for first-class mail. And so the states, say, it must be postmarked by such and such a date, but it turns out the post office doesn’t postmark. So we’ve got all these, I will call little, fairly fixable problems, and then we’ve got a Constitutional interpretation, but we don’t want to have a shipwreck. I mean, fortunately, thanks to your efforts and the efforts of others and maybe just good fortune, we had an election and we now have a president.
But you can see that gee, with a very closely divided country and with a willingness to test the boundaries, which is maybe the hallmark of our current era. How do we keep this from becoming a disaster? If you were the president or you are in control in some way or another, would you appoint a bipartisan commission? How are we going to get on top of this?
Seth Waxman: One way to get on top of this is for the Congress of the United States, finally, to implement the authority that the Constitution gives it to itself prescribe the rules regarding the time, place, and manner for choosing federal elected officials. I mean, that same provision of the Constitution that says that it shall be determined in each state by the legislature thereof has another clause that basically says, that is the case only in the absence of federal legislation. And of course, HR1 and S1, which are now pending and will be up for consideration in both the House and the Senate soon, do precisely that, and eliminate this completely bewildering and ever changing landscape in terms of who votes when, where, and under what conditions and with what safeguards and what preventative constraints in each, not only in each state but each county, and in many instances in each precinct.
One of the issues that the Supreme Court is going to be considering in the arguments tomorrow in Arizona is the legal validity of a state rule that basically says in Arizona, if you vote in the wrong precinct, none of your votes will count even for statewide and national office. That is a provision that the secretary of state of Arizona, herself, who is the chief elections officer has said is invalid, and in fact was not implemented because it arises in the backdrop of different counties and jurisdictions in Arizona, changing precinct lines very, very frequently to the point that people genuinely may be uncertain about which school they’re supposed to go vote at. If there was a federal law that basically said, “Look, these are elections for federal officials. We’re going to have a uniform set of rules.” Maybe we’ll have a federal commission that will make the rules or whatever. Life would be a whole lot fairer and more predictable.
David Levi: Don, do you want to add to that answer?
Donald B. Verrilli: I agree with everything that Seth just said. Another piece of it, too, would be substantial increase in federal funding for the apparatus of elections. We had situations in this cycle where private donors and then had hundreds of millions of dollars in grants to state, the county, local election officials to help them just pay for the cost of administering the election, that kind of under-investment. It’s important for the issues we’re talking about. It’s also important for the issue of the security from a cyber assault on the electoral process, which is something that’s out there for the future, too, so very substantive. We need to take the electoral process a lot more seriously in that basic way as well. We have to harden the infrastructure, get it in place, and make sure it’s secure and make sure it’s up to date. We’re a million miles from that now in this country.
Seth Waxman: David, can I make two points, which I think are really important, one is, and we appreciate both ALI and the Institute giving the three of us a platform to get the band back together and reminisce. But I think it’s terribly, terribly important for the public to recognize the degree of sacrifice and real devotion that, I mean, literally hundreds of volunteer lawyers made over the course of those nine months. I can speak to the lawyers and the dozens and dozens of teams that I was trying to coordinate. I mean, we’re talking about people whose names are never going to get a platform like we did, but they spent hundreds of hours as pure volunteers, no credit with their law firms, nothing to count toward anything else other than trying to do the right thing for representative democracy. And I just wished there were a better way that we could honor the people who made those sacrifices in an era of COVID where many of them are young lawyers working at home with spouses at home and their children at home and a full plate of law firm clients to represent, and still spending dozens of hours every week doing this. That was another aspect of the dream come true part.
Donald B. Verrilli: It was inspiring, it really was.
Walter Dellinger: Yes, yes. Absolutely.
Seth Waxman: The other thing I’d like to say is that you’ve asked questions about, what are the unanswered questions and how well did the court system work and what are the things that continue to worry you? I mean, what worries me most is what produced this, which is a level of social disintermediation in our political sociology in this country. That is, I think a mortal and very, very much enduring threat.
David Levi: That was my second big question, which is, we have a big part of our population which is very susceptible now to conspiracy theories and accepting assertions that are not fact-based and a huge distrust of the media and this gigantic role for social media. You’re concerned about it, and I am too.
Seth Waxman: I’m just concerned that we’ve developed into a society in which there are, this is not one republic indivisible. People get their news or what passes for news from utterly different sources. The atomization of our society has allowed people the freedom to essentially hear whatever they want to hear and only speak to people that say what they want to hear. And the net result is that, I just feel like our country is at a frightening crossroads of not becoming one republic indivisible, where people can have policy debates and talk about issues with the idea that we’re going to compromise and we have to be tolerant, and we have to very much recognize the voices of other people, but we have a shared conception of what the country stands for. And it’s that shared conception that triumphs over very, very heated divisions on particular issues, and how to reclaim that sense of we are Americans is a very, very perplexing and frightening challenge. And it’s one that lawyers, that legal skills are not even relevant to address. And I’m spending my time post-January 6 trying to figure out how as a citizen I can do something in my own little way to build back civil discourse and a sense of the American community.
David Levi: I agree with you, but I think you’re being too modest. I think actually lawyers and judges and others do have the skill of being able to disagree, make the arguments, shake hands, get a drink. Often you’re looking for a way to get to a consensus in a case, to a settlement, to some common ground. And lawyers are very good at that. So we don’t need to be our most divisive, but you’ve really teed it up nicely. And I know you have to go. But maybe Walter and then Don, maybe could you address this big picture for us? We have a very divided country apparently, and it doesn’t feel very good. And it’s hard to find a sense of common purpose. So how can we help, Walter?
Walter Dellinger: I think by practicing civil discourse is one way that lawyers can help. The problem has many sources, but one of them is that our parties are now becoming more ideologically pure. Parties where we often worked out these issues and wound up most of the years with the fairly centrist candidates from each party being the contenders. But a number of issues starting in 1965 led to the ideological purification of the parties, which I think is very, very sad. Coupled with the fact that geographically, it has been an extraordinary increase, and the fact that people are living only near people who agree with them. Every reoccurring census shows that is developing. And we need to find ways; communications people need to find ways of reaching people that disagree with other people. And then maybe lawyers could play a role, if we could actually get people to listen somehow.
David Levi: Don.
Donald B. Verrilli: I’d just add one more thing that I think we can do, which will address something that worries me a great deal. I think we can valorize acts of courage in this fear. The young man on the Michigan canvassing commission, the Republican who decided to vote to break the tie. He’s seen his career go up in flames as a result of that, but what he did was principled and right, and courageous.
Secretary of State Raffensperger in Georgia, he may have done irretrievable damage to his political future, but what he did was right. And honoring people who act that way, all of us as a profession, in particular honoring people who act that way, I think is going to be really important because if people who act that way find that their careers go up in flames, and that’s that, and then nobody ever thinks about them again, then who’s going to be willing to step in the next time and be equally courageous? I think it’s important, I think, to highlight those, which I think made a big difference over the course of the fall, and we want to honor people like that.
David Levi: Well, that’s such a great place to end. Thank you, the three of you, the three SGs, SG3, you played a very important role, obviously, and it’s been really interesting talking to you. You’re just delightful and you’re so talented. I admire, and we all admire each one of you, and as Seth said, the team of young lawyers behind you. So that gives us hope. We are in a so-called moment, and we know we have a lot of work to do, but it was such a talented bench. And with all this energy and incredible talent behind you, I think we can be hopeful.
This has been a production of the Bolch Judicial Institute and the American Law Institute. I’m David Levi. Thank you so much for joining us, and thanks to the three of you.