David F. Levi recently lead a conversation with three former U.S. solicitor generals 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 three 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. In many cases, the team had correctly anticipated Trump campaign legal actions and had responses quickly ready.
Dellinger is a longtime faculty member at the Duke School of Law and currently a professor emeritus. Here are excerpts from the conversation. The full video is below and the full text can be found on the Bolch Institute website.
Preparing for election challenges
Waxman: 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?”
Verrilli: 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.
The role of the courts
Dellinger: [The courts] really did an extraordinary job. I haven’t 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.
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.
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. 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 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.
The Role of the Vice President in Certifying Electoral Votes
Dellinger: 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.
Bringing Clarity to Election Laws
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.
Meet the Experts:
- Walter E. Dellinger, who served as acting solicitor general during the Clinton administration and as a Professor of Law Emeritus at Duke Law school;
- 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;
- Donald B. Verrilli, who served as solicitor general during the Obama administration, and is a partner with Munger, Tolles & Olson LLP.