HH: First, a decision came down yesterday in Wisconsin. The United States District Court ruled invalid the new voter ID law in Wisconsin, which could have an enormous impact not only on the 2014 election, Governor Walker’s reelection and Congressional elections there, but also on the 2016 presidential election, and indeed, if the logic spreads, other voting identification laws that have spread throughout the United States. Joining me to talk about what will become really the opening round of the lawfare, not warfare, but lawfare over politics at the ballot box adjudicated by judges is Craig Engle. He’s a friend of mine. He’s a partner at the law firm of Arent Fox. He’s the founder of its bipartisan Political Law Group. He’s worked in law and politics for 30 years. He’s represented many presidential candidates, pals and party committees. Most notably, he was general counsel to our friends at the RSC, the Republican Senatorial Committee for six years. He created one of the first superPACs in the 2010 elections. He’s worked on voting rights cases, the IRS scandal, redistricting, campaign finance, public corruption cases here in California and throughout the United States. Craig, welcome, good to have you on the program.
CE: Thank you, Hugh, it’s good to be with you.
HH: All right, Craig, yesterday a district court judge struck down this Wisconsin law. Can you tell us what that means and whether or not it’s likely Wisconsin is going to appeal that?
CE: It’s likely that Wisconsin is going to appeal it, and what it does mean is here is another judge in another state stopping these new voter ID laws from taking effect. The trend now is toward striking these laws rather than upholding them. Five, ten years ago in Indiana and in Georgia, laws were upheld. That’s not the trend now.
HH: Now this judge, of course, is a district court judge, Lynn Adelman…
HH: Appointed by Bill Clinton, for eight years, a member of the Wisconsin State Senate, Democrat, two times, three times a Congressional candidate for the Democrats in Wisconsin. Obviously, federal judges aren’t political, but obviously, a lot of people are going to be looking at that and saying huh, is this going to be a Democrat-Republican thing depending on who the judge is?
CE: It is, because this is now becoming not so much of a legal debate. I think the legalisms here are becoming kind of untethered to what’s happening in elections. This is more of a political debate now. Who’s side are you on? And it’s more emotional, political. It involves race and income, and not so much, you know, precise legal arguments anymore.
HH: Now a Walker spokesman, Laurel Patrick, told ABC News, we believe the voter ID law is Constitutional and will ultimately be upheld. We’re reviewing the decision for any potential action. And then ABC goes on to say the ruling could set a precedent for similar legal challenges in Texas, North Carolina, and that there are 31 states with laws in effect requiring some showing of voter identification. You were working for the RSC when they were doing the NRSC, National Republican Senatorial Committee, when they were doing a lot of this stuff. Do they get involved? Do the federal election committees get involved in this stuff?
CE: They don’t, and I think wisely so. I think that this is a matter for each state to determine how it wants to order and run their elections. I think it would be very unwise for the national or the federal party committees to take an aggressive point of view. This is what sate parties are for. This is what state candidates and state attorneys general are for.
HH: But now, you’re a specialist in election law. Does the attorney general of Wisconsin have the guns to go after…you know, these laws are important to a lot of people. I think they’re vastly important getting rid of fraud and future fraud. This judge said there wasn’t even an instance of fraud in Wisconsin, which I found a little stunning, actually.
CE: That was a pretty bold statement to declare there was no voter fraud in Wisconsin.
HH: Yeah. Is that your experience, Craig Engle?
CE: It is not my experience.
HH: So if this falls, I also think that ABC’s wrong. It’s not precedential, is it? It’s one district court with one state law.
CE: There are many decisions that are yet to be made by many judges across the United States. Sooner or later, they’re going to all collide at the big court in Washington, D.C. Right now, you’ve got precedent stacking up on both sides of the decision. The problem, Hugh, is both sides are finding it very difficult to prove their case. States are finding it difficult to prove there is election fraud, and advocates are finding it difficult to prove there are people who are being turned away from the polls. So these cases really aren’t a matter of proof anymore. This is more emotional. What side are you on in America? Are you on this side or that side? How do you feel about voting? How do you feel about race or Democrats or Republicans? This is something where the amount of proof is becoming much, much less relevant than the amount of rhetoric.
HH: Now up until 2000, Craig Engle, most elections were just decided, and people went home. Now we’ve had, of course, Bush V. Gore, and we’ve had Franken V. Norm Coleman. I think we’re going to have, I don’t know, a dozen of these challenges in the 2014 cycle? Do you think that, you know, post-election electioneering?
CE: Well, I think you’re right. I think that look, no one likes a close election except me as an election lawyer. I love them. But no one likes a close election because of this. The Constitution does not require a perfect election. It only requires a fair election. It’s like a trial. You’re not accorded the right to have a perfect trial. There is no such thing. Only a fair trial. Elections are a lot like trials. So what happens is when you have a very close election, the allegations of fairness and imperfection run wild.
HH: Now last night, I was at the Angels-Indians game, and the Indians were ripped off of their justifiably won election by an instant replay call that everyone who saw it knew the Indian was safe at first base. But they replayed it and they replayed it and they replayed it, and they called it for the Angels. Is that just the future? Is that, are you going to be the busiest lawyer in America?
CE: Well, I’m always on the side of the Angels.
HH: Okay, well, that’s a terrible pun.
CE: Sorry. But look, I think that I will be as busy as, you know, the emotions and law of America require. If people don’t care about elections, I won’t be busy. But because elections matter and elections have consequences, I am going to be busy. I actually kind of like the amount of attention that’s being drawn to this case, or the case in Tennessee a few months ago where a judge reached the opposite decision. This sort of attention is good. It makes us examine how we’re going about running our country, Hugh.
HH: Now the general principle, though, that you have to show an identification to vote, everyone is going to call this show today, to the extent we come back and take calls on this, is going to say you need an identification to get on an airplane. You need an identification to drive a car. You need an identification to do any…why not an identification to vote?
CE: Well, this is peculiar thing, because you ask yourself how did these people get registered to vote in the first place?
HH: And then lose the identification that is being required of them to vote in the Senate, the Congressional or the presidential election.
CE: That’s correct. And so you wonder if there is a requirement to show some form of identification to become registered to vote, then you’d think that you might want to maintain that identification as you vote. So I’m a little concerned about those people who feel so disenfranchised that they cannot vote after they had become registered to vote. And you know, the second thing is that we hear an awful lot about the highly-vaunted turnout models, the get out the vote cases, and the work that the national party committees are doing to get their people to the polls. One of the things that I think that parties could be well-schooled in is to get their people to the polls, and make sure that they get there with their ID, or get an ID and get them there, because part of this has got to be put on the party committees, to make sure if you’re going to have a get out the vote model, that you have the people eligible to vote when you get them out to vote.
HH: Now Craig Engle, in Colorado this year, they’re doing mail out ballots. And this is the first time that they’ve ever done this. They’re going to mail a ballot to every registered voter who’s had an election address for the last six years. And Cory Gardner was in the studio last year. He’s running against Senator Udall. It’s going to be a highly-contested election. All of these mailed out ballots are sitting around waiting for people to pick up and use and abuse. How in the world are election law lawyers going to advise their clients when you don’t even need ID to send those things in?
CE: This is probably the area of my greatest concern. I first started to work with mailing ballots in Oregon in 1995 as a matter of fact, where they started an aggressive mailing voter ballot program. The potential for fraud increases dramatically when the connection between the election official and the voter becomes greater and greater, and when you put a ballot through the mail, you lose custody. You lose that chain of custody that lawyers always like to talk about in trials, to make sure that the evidence is pure. Well, if an election is like a trial, you’re losing something in the chain of custody here.
HH: Craig Engle, I’m afraid we’re going to be talking a lot in the next six months about all of the various cases having to do with the probity of these elections, and it’s going to be lawfare at the polls as well as political warfare. Craig Engle, thank you for joining me.
End of interview.