Adjunct Professor Maggie Goodlander discusses how COVID-19 will impact elections and steps that are being taken to expand absentee voting and voting by mail. Produced and Hosted by A. J. Kierstead
Maggie Goodlander is a lawyer and adjunct professor of constitutional & administrative law at UNH Law School. Over the past decade, she has served in legal and policy positions in each branch of the federal government. After graduating from Yale University in 2009, Maggie worked for four years in the United States Senate. She first served as advisor for foreign affairs and national security to Senator Joseph Lieberman and later as a senior advisor to Senator John McCain and was responsible for assisting with the drafting and legislative strategy for the Senate’s 2013 bipartisan comprehensive immigration reform bill. Three years later, after graduating from Yale Law School, Maggie went on to serve as a law clerk to two federal judges: Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit (2016-2017) and Justice Stephen Breyer of the U.S. Supreme Court (2017-2018). She also served as counsel for the U.S. House Judiciary Committee and House Managers during the impeachment and Senate trial of President Donald Trump. Maggie maintains a robust pro bono practice in New Hampshire while also serving as an intelligence officer in the U.S. Navy Reserve.
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Legal topics include civil rights, elections, absentee voting, mail in voting, government emergency preparedness
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A. J. Kierstead (Host):
Adjunct professor Maggie Goodlander joins me to discuss the impact of COVID-19 on upcoming elections. This is The Legal Impact presented by the University of New Hampshire Franklin Pierce School of Law, now accepting applications for JD graduate programs and online professional certificates. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or hosts and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire.
A. J. Kierstead (Host):
Maggie, with the recent COVID-19 crisis, we're in the midst of a presidential election cycle, which is raising many concerns over handling voting while promoting social distancing and stay at home orders. Has there been instances like this in the past where something like this has happened around election time?
Maggie Goodlander:
I think the short answer is no. There are very few things that election officials across this country agree on, but I think it's fair to say everyone agrees that this is a truly unprecedented moment for our country, including for this upcoming election. I think in history, the one example of Americans going to the polls during a pandemic was the 1918 flu pandemic. And there, the lessons that I think we can draw from that, it was obviously a very different scale in 1918. Women didn't even have the right to vote in the United States, so the electorate looked very different.
Maggie Goodlander:
But what we learned from what did happen in that midterm election was that voter turnout was very, very low when presented with the choice between their health and their life in some cases and the right to vote, many Americans had to make the difficult choice to keep their lives and health. So voter turnout was very low. And the other data point on that election is that a lot of people got sick because they did make the choice to go to the polls. So I think the upshot is we haven't seen anything quite like this and from the one example we have seen, there are some pretty important lessons to be drawn.
A. J. Kierstead (Host):
Bringing it to the present, Wisconsin actually held their primary a few weeks ago and raised national attention with it. How did they handle it?
Maggie Goodlander:
Wisconsin's April 7th election I think is really sort of an how-to guide both on the one hand of how to avoid having an election like that anywhere in the United States again. But also I think it really points the way for New Hampshire and other states as to what challenges we're going to have to face and really contend with in the weeks ahead. So what happened in Wisconsin, there was a dispute between the governor and the state legislature over the timing of the election. And ultimately it proceeded unlike other States that had delayed their elections by a couple of weeks and in some cases a couple of months. Wisconsin proceeded in the middle of the pandemic in part because there was no agreement between the branches of the state government.
Maggie Goodlander:
And I think what we saw on the ground, what were challenges both in the in-person voting that took place on the ground. In the city of Milwaukee, for instance, there were only five polling places open. 175 out of 180 polling places were closed. And that's for a simple reason that most poll workers in Milwaukee, and the same is true across the United States, the vast majority of poll workers are over the age of 60. I think it's 58% of the poll workers are over the age of 60 and 25% are over the age of 70. So this is a vulnerable group of people and the polling places simply couldn't stay open, so that's the in person piece.
Maggie Goodlander:
There was also an effort, a very, very valiant effort, which I think in some ways can be characterized as a success in Wisconsin to scale up dramatically the absentee voting that took place for the election. So much like New Hampshire, in Wisconsin, historically, elections have been almost entirely conducted by same-day in-person voting, so I think in the past Wisconsin's never had more than 10% of votes cast by absentee ballot. On April 7th, it looks like from the data we're seeing, somewhere between 70 and 80% of voters actually cast their ballot by absentee ballot, but there are just a whole host of challenges and difficulties that we saw play out in Wisconsin with respect to how those ballots were cast, which ballots were counted. But I think to the extent that there were real successes, it's really thanks to the incredible work of election administrators on the ground and also the National Guard, which was mobilized in Wisconsin to assist with the administration of the election.
A. J. Kierstead (Host):
Now, New Hampshire is already making plans for how they're going to handle the elections through the rest of the year. What are they looking at doing at this point?
Maggie Goodlander:
The very good news is that, as you say, New Hampshire has already started and hit the ground running. The secretary of state and the attorney general have issued some very promising guidance as a first step to make clear that New Hampshire voters will not have to choose between their health and their right to vote, and that any person in the state, any eligible voter in the state who wishes to vote by absentee ballot can do so by claiming a disability. So it's a little bit of, not an entirely intuitive interpretation of the term disability, but I think it does work and it's a great first step that the attorney general and the secretary of state have taken. But I think they'd be the first to say that there's just a lot more work that needs to be done, on the one hand, to scale up absentee voting in New Hampshire.
Maggie Goodlander:
I think in the last couple of elections it's been less than 5% of ballots cast by absentee, so there are a whole bunch of questions about how certain statutes that would otherwise sort of narrow or complicate the absentee balloting process should be applied, whether they need to be changed and also a whole bunch of work that'll have to be done logistically on the ground to be ready. And this all will have to happen in a very short amount of time. We have, I think as of today, 147 days until the September 8th primary, and we're less than 200 days away from the November 3rd general election.
A. J. Kierstead (Host):
Yeah. I mean this is something people don't usually keep in mind when they're figuring out reworking elections is if you're going to be switching to absentee ballot, online voting, all these other, other than in-person voting solutions is the funding, staffing, security for all these is a huge issue. And if you're going to dedicate more and more funding into these non in-person voting options, you're taking away from facilities that will be available or materials that may be available for in-person voting.
Maggie Goodlander:
Yeah. I think it's going to be a delicate balance to figure out how to plan for it. We're operating in the shadow of unprecedented and extraordinary uncertainty here. We don't know what the world will look like on September 8th, and we don't know what it will look like on November 3rd. If it looks anything like it did on, on April 7th, then we're going to have to have in place plans that will allow us to have close to 100% of voters vote by mail, vote absentee by mail, but still have, and I think Wisconsin does show that you still need, no matter what, that backstop of in-person voting.
Maggie Goodlander:
And it's been exciting to see in New Hampshire towns across the state who are attempting to carry out their local elections, municipal elections. The town of Conway has experimented with drive-through voting. We saw that in some places in Wisconsin and elsewhere around the country. So this is going to require the most extraordinary creativity from all parts of the state.
A. J. Kierstead (Host):
What sort of role would the federal government in these States restructuring how they handle these? Especially, it's not, when it comes to government, this is very quick timelines that need to be put in place.
Maggie Goodlander:
Yeah, so I think the federal government, there are three, at least three kind of basic ways in which the federal government's going to be really important between now and November 3rd. The first is on funding. So already the U.S. Election Assistance Commission, which is the independent federal agency charged with election administration, has been responsible for giving out grants to states through a statute passed in 2002 called the Help America Vote Act. So there already was before the coronavirus pandemic a channel of federal funding that was coming into New Hampshire and other states. Last month with the passage of the CARES Act, Congress appropriated an additional $400 million to states specifically for COVID-related contingency planning and costs. So New Hampshire is eligible to receive a little over $3 million as part of that sort of fund through the CARES Act. But it's going to be, I think, important for Congress to continue to support states as they scale up. The costs are not insignificant, so funding is one.
Maggie Goodlander:
And the two others are related. The post office, the postal service, USPS is the most popular federal agency. I think I saw on a recent Pew poll. But it's also going to be a completely essential player in scaling up vote by mail for obvious reasons. But the postal service is almost out of money, and so Congress is going to have to act. We just simply can't hold an election without, in a pandemic scenario, without the post office, so that's going to be critical.
Maggie Goodlander:
And then the third way is related. I think we're going to see, because I would say probably over, between 45 and 50 states are going to be significantly scaling up. There are five states that already allow for universal voting by mail, but pretty much every other state in the country is going to be scaling up their vote by mail operations significantly over the next couple of months. And I think it's fair to say that we're going to see a range of supply chain issues that arise from the printing of envelopes, the printing of ballots. And so I think there could be a role for the federal government to play in ensuring that election administration supply chains are operating as they should be.
A. J. Kierstead (Host):
Do you have anything else that you'd like to put out there as a prediction for how things might happen or changes you might see happening as we get closer to November?
Maggie Goodlander:
Yeah. I think that my prediction is that we should, we need to be, and we'll have to be ready for anything, and this is going to require an all hands on deck kind of effort. I think the really good news and what keeps me feeling really positive about how things will develop for New Hampshire is that this is the state that's the home of the first in the nation primary and there is dedication on both sides of the aisle for keeping New Hampshire first in the nation. And so we've carried that responsibility, including most recently in February for the primary. Just a week after a very different kind of disaster in Iowa, New Hampshire really rose to the occasion.
Maggie Goodlander:
And so I think we should consider ourselves extremely lucky that February 11th didn't look anything like today looks. And the pandemic had not yet hit us in the way that it would in just a few weeks after that. And we should consider ourselves extremely lucky that that didn't happen and do everything that we possibly can to make sure that we're ready for both the elections that are coming up, statewide elections this fall.
A. J. Kierstead (Host):
Thanks for listening to The Legal Impact, presented by UNH Franklin Pierce School of Law. To help spread the word about the show, please be sure to subscribe and comment on your favorite podcast platform, including Apple Podcasts, Google Play, and Spotify
