John Blomster: Welcome to 红桃视频, a 红桃视频 podcast where we dive into today's biggest legal topics with the law school鈥檚 distinguished guests and experts from around the world. I'm John Blomster. And today we welcome on Lis Frost, partner at global law firm Perkins Coie. Lis is a renowned attorney with a wealth of experience representing voters, campaigns, political committees and others with an interest in political process in litigation. She has successfully litigated cases involving redistricting, voting rights and campaign finance, as well as those implicating important matters of First Amendment speech and association. Most recently, she served as the quote Chief Lieutenant and Air Traffic Control for Perkins Coie鈥檚 political litigation teams working in the 2020 election cycle. And she recently joined the law school for a special panel event to discuss the 2021 presidential transition, how the rule of law broke down and the role of lawyers must play in safeguarding American democracy in the immediate fight against voter suppression. We are thrilled to have her on to talk about all of this. So, let's get into it. Lis, thank you very much for joining us today.
Lis Frost: It's a pleasure to be here. Not least of all, because I'm a graduate of the UW School of Law, 2007. And it's great to be back talking.
JB: Absolutely. Well, we're really happy to welcome you back. First of all, can you just tell us a little bit about the work that you do at Perkins Coie?
LF: Yeah, absolutely. So, Perkins Coie has the oldest political law department in the country. It was founded in the 1980s by an attorney named Bob Bauer, who would later go on to be the White House Counsel for Barack Obama, and who actually just also served in the campaign for President Biden. Over the years, it has evolved. Some lawyers in our practice, do a lot of advising campaigns, we do a lot of campaign finance work. But my piece of the practice is, specializes in, litigation that involves the political practice. And this practice actually evolved out of, we were recount lawyers first. So, we do a lot of, we鈥檝e done a lot of recounts, we're probably most well-known for the Al Franken recount, which lasted many, many, many months. Our lawyers basically moved to Minnesota for that. And we've done recounts, kind of big and small since then.
In that process, it became very clear to us that there were a lot of laws that may seem kind of innocuous on their face, but that were disenfranchising lawful voters in the thousands. In Washington state, actually, a vote by mail state, signature match is an issue. But there's lots of different laws that when you see, when you get to see ballots in a close election being reviewed, you see where voters make totally innocent errors, and their ballots get tossed. So, that actually started to drive what we're now really well known for, which is our voting rights work. And the voting rights cases that we bring, sometimes challenge laws that are clearly on their face problematic for lawful voters. And sometimes they challenged some of these, these kind of more technical seeming laws, but that actually can make a big difference.
And then the other kind of work we do is obviously redistricting work. One of the first cases I worked with in the practice was a challenge to Florida's redistricting congressional map under a new state constitutional amendment that they had that made partisan redistricting unconstitutional. Redistricting cases tend to last several years. But they're fascinating cases. And in the end, we got a declaration that the map was in fact unconstitutional. And Florida had to redraw its congressional map to make it more fair.
JB: How did the pandemic affect the focus of your work this past year?
LF: So, we came into it鈥攊t affected it a lot in interesting ways. One of the things about my work is it's never boring, and you never know what's coming around the corner. And 2020 was that on steroids. So, we started the year thinking that what we were going to do was challenge, you know, a series of voting laws of the type that we kind of normally challenged. Ones that, you know, on their face are either very problematic for access to the ballot for voters, and particularly voters in communities that have tend to have had more obstacles directed to their being able to cast their votes. And we were sitting down, we were preparing for that. And then of course, the pandemic hit. And our focus immediately shifted. Well, I guess maybe not shifted, it's sharpened, I think it's probably the better way to put it. Because, as I mentioned, we already are, we're hyper aware because of the redistrict, or sorry, we're hyper aware because of the recount work that we've done in the ways in particular that voters can be disenfranchised in voting absentee and mail-in ballots. This is a particular kind of voting that all kinds of, there's all kinds of seemingly innocuous hurdles, depending on the state, that can end up getting a ballot tossed.
So, with the pandemic, it obviously became very clear that a lot more voters were going to need to vote by mail. We were very worried that a lot of voters who would be new to voting by mail were more likely to make innocent errors in the process that would result in their vote not being able to count.
So, we turned our focus to primarily to vote by mail issues. And we identified what we call the four pillars of vote by mail, which included signature matching issues; they included prepaying postage for ballots, actually, Washington state, King County did a really interesting experiment with this. And it showed that when you prepay postage on ballots, you get a marked improvement in voter turnout. And there were a couple other issues we started to look at. We also by the way, were looking at in-person voting, because there are always going to be some voters who are going to need to vote in person, or who frankly, just don't trust the post office or don't trust their government to count their vote unless they see their ballot going to the ballot box.
Now, this was all before we knew what was going to happen with Louis DeJoy and the postal service. So, we were kind of already laser focused on this. I can tell you a couple things that surprised us right out of the gate. We didn't expect there to be such a fight, a partisan fight over access to voting during a pandemic. This is the very first time that the United States has had to hold a presidential election in a pandemic. The 1918 flu actually impacted midterm elections, but never presidential elections. And there's a difference. There's a lot more voters who participate in presidential elections. We anticipated that actually this would be a time that you would start to see even state actors who are normally hesitant to enact voter friendly laws that ensure voter access to say, 鈥淎lright, it's a pandemic, let's kind of loosen things a little bit.鈥 No, it was a fight from the start. And it very quickly became a fight over things that frankly before 2020 were not issues they were there were things that were supported broadly by both parties such as drop boxes. The fact that drop boxes at some point became public enemy number one was like a huge surprise.
The other thing that we saw pretty early on that was frankly something we'd never seen before, was we started to see Trump's campaign and local Republican parties going into states, where like, a great example of this is New Jersey. New Jersey acted quickly to respond to the pandemic to make sure that their voters would be able to vote. And they passed a couple laws that, frankly, are not that unusual. They said that elections officials could start opening ballots, not processing, but opening them a little bit before the election, which is done in almost the majority of states. And it's in order to enable there to not be a lag in counting the ballots afterwards, so that you can turn on CNN and someone can tell you who won the election in New Jersey relatively quickly. And they did some other very simple voter friendly measures to make the election go smoothly, not only to help voters, frankly, but also to help elections officials who were just completely underwater in this completely unprecedented situation.
The Trump campaign and the New Jersey Republican Party sued in federal court to try and repeal those laws. With the exception of a few ultra-right wing, kind of, fringe organizations. We had never seen attempts to use the judiciary in this way to repeal voting rights. We've seen state legislators do it, certainly. It's been a part of the American playbook, frankly, almost since the beginning of the Republic. But we鈥檝e never seen campaigns in particular, parties going in to say, let's make it harder for people to vote, the states don't have the right to make it easier for their voters to vote much less than a pandemic.
So, that told us that something had really changed. We were seeing a monumental shift. And of course, it became clear that it was a part of this larger myth and story that was being sold to the American public. The story that, and the lie, that our elections are not secure, that you can't trust what's happening, that people are going to be voting who shouldn't be voting. And this has been also, frankly, a voter suppression tactic since the beginning of the republic throughout Jim Crow. You hear the same stories about voter fraud. And then, you know, over the past decades, when we've started to see again, kind of a resurgence of these restrictions on voting laws over and over and over again, you hear voter fraud. Over and over and over again, these stories have been debunked. And it is absolutely clear now that voter fraud hardly ever happens. I mean, it is an infinitesimal amount of the ballots that are cast in United States. The National Republican Lawyers Association spent a ton of time and money trying to find a lot of evidence of voter fraud and came up with very, very few incidences. And on the flip side, what is clear is that these measures that are justified by the voter fraud lie, disenfranchise lawful voters in the thousands, sometimes more. So, when you're talking about this balancing, you know, it's this bloodline that kind of runs through this fight. But it's very clear what's true and what's not. So, that's what we saw leading up to the election.
JB: Like you were saying these efforts to disenfranchise voters date back to the start of the republic in many ways. And it's really culminating in the extreme examples that you've seen now. So, specifically, what is some of the groundwork that has been laid that has led up to voter suppression becoming a political strategy for one party?
LF: Yeah, I mean, it's a sad鈥擨 think it's honestly, it's a sad thing to see as an American. But I think what's happening is you see this happening in particular, in locations where the demographics of the voting public are changing. Texas is very notorious for any time you start to see greater Latino or Black turnout, trying to get in front of it a little bit by tweaking their laws to make it a little harder. Georgia as well. Georgia actually has had a habit of redistricting mid-cycle. So, what that means is usually redistricting happens every 10 years, you actually saw in the past decade the Georgia legislature redistricting, I think was in 2015, about that. After you started to see the suburbs around Atlanta starting to diversify and turn more blue. And they would just move the map just a little bit to get ahead of it. So, I think, you know, that's what you're seeing. I think it's deeply unfortunate that the stories that have had to be told in order to justify what is effectively elected representatives attempting to choose who votes for them so that they can retain their power, I think our fulminating and what we saw in 2020 and I think, a historical moment we are still living in, which is they really do threaten the very foundation of our Republic.
JB: We see such a wide range of laws that have been enacted or that lawmakers are seeking to enact to make it harder to vote or to fully disenfranchise voters. But why are the restrictions that make it more difficult to vote almost more dangerous than laws that completely disenfranchise voters altogether?
LF: I don't know that I would say they're more dangerous than the laws that disenfranchise voters altogether. But I will say they are both extremely dangerous. I think that one of the reasons that laws that just kind of shave off voters on the edges in some ways are more threatening to the foundation of our democracy, is that it can be harder to convince a judge that they are as problematic as we know they are. And, you know, when you have a law that just says, 鈥淭hese people can't vote,鈥 then it's very hard for I think a court to look at that and say, 鈥淭hat's an acceptable law under our Constitution,鈥 right? That's like the very far end of that. But voter suppression, I mean, since its infancy, has always been extraordinarily creative. This was the, you know, this was true of literacy tests, right? They didn't say, black people can't vote. They said, 鈥淓veryone has to pass this test.鈥 And then they were given in the discretion of elections officials, when voters showed up at the polls, to black voters, and not to white voters, or white voters were, you know, if they were given the test at all, were scored in a more forgiving way. And it's always been that, I mean, this was the reason the Voting Rights Act was enacted, and why section five was so important, because it required that the Department of Justice or a federal court determine before the law went into effect, that it wasn't going to have a negative impact on the ability of minorities to vote. Without that, you find yourself in front of a court. And you say, 鈥淵our Honor, we know that because of the way that these laws behave, that this is going to have a negative impact.鈥 And the court will say, 鈥淏ut you don't have evidence of it because there hasn't been an election under it.鈥
So, you go into the election, and then it's like these natural experiments that you have to let play out. And then you get these experts in, and they鈥檙e warring experts, and a lot of these issues can become, they are very nuanced and difficult, right? They're not just pure questions of pure turnout, for example. And there's a lot of reasons for that. Number one, you actually sometimes see a bump in voter turnout聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 after a voter suppression measure has been enacted, where there's been a lot of media about it, there's a lot of organizing around it to try and target the communities that you know, are going to be hit the most. And so the numbers may not show it. But what we do know is that when you have these suppressive election restrictions in year after year after year, they have an impact on the turnout and the way that people vote in these communities that have historically had barriers put up to block and to make it harder for them to vote.
And the other thing we know that I think is really interesting, and really important, is that there's two things we know that are really interesting, really important. One is that voting is a habit. So, political scientists who study this will tell you that if you show up to vote, and there's a lot of issues, and it's really hard, you are much less likely to come back again, if you show up and it's you know, very easy, very user friendly process, you're much more likely to do it again. And this becomes very, very crucial when you're looking at, for example, the fact that in a lot of jurisdictions the parts of the state that have heavily minority communities have incredibly long lots. And then parts of the state that have mostly white voting communities, you pull up, you walk in, you cast your ballot, you walk out. Those are wildly different experiences that over time are going to have wildly different impacts on voter turnout and the way that communities interact with elections.
The other thing is that when elections laws change, the people they hurt the most are the people who are living in either communities where there isn't a very long, strong history of voting, and communication to, you know, to hear about the changes as they're happening. Because what we know is that people actually often learn about those changes, not necessarily from their elections officials, but from their neighbors. So, I might hear from my neighbor, oh, you know, there's a primary going on. And this year, you need, I just went and voted and it turned out, I needed my driver's license. Well, I know that now. If I'm, for example, a young person in a dorm in a state that I'm relatively new to my neighbor is much less likely to know these things. And I'm kind of flying blind. And there's all of these little pieces of knowledge that voters obtain through their interactions of history, not only with the voting process, but actually in their neighborhood. And voters who are less transient, who are more likely to live in a home that they own and live there for decades, are much less likely to be disenfranchised. All these little changes actually really have a serious impact over time, and in the aggregate on more transient communities, communities that are more likely to rent, communities that are less likely to have reliable sources of information about laws that are changing, less internet access, less likely to see something on Facebook, right? All of these things matter a lot.
JB: The January 6 capital insurrection obviously was a terrifying and sad鈥擨 mean, you can use all of all of the superlatives that you want鈥攎oment in our history. But the scarier part is what it means for our democracy going forward. What responsibility do lawyers have? And I mean, not just lawyers who are who are doing the kinds of work that you and your colleagues are doing every day, but in-house counsel, people that represent businesses. What role and responsibilities do lawyers have in protecting these democratic institutions going forward in the wake of the 2020 election and the capital insurrection?
LF: The attack on the capital was itself a culmination of, I think, frankly, decades of lies about exactly how American elections work and who's voting and whether there's voter fraud or not. But, of course, they were in the immediate aftermath of the Big Lie, and Trump and his allies really pushing this idea that he'd lost the election. And one thing that we saw that we'd never seen before was in the weeks after the election itself. We saw no less than 60 cases brought by Trump and his allies to try and discredit the election. None of those cases were successful. Over and over and over again courts found there was no evidence that they were based on absolutely scurrilous lies, completely ridiculous theories. Some of which involved Hugo Chavez and voting machines and all kinds of things that just don't have any basis in reality.
You then have the attack on the Capitol, which was terrifying. Thank God things did not go another way that day. But I think the what we all have to be aware of鈥攁ll of us鈥攊s that we are still living in that historical moment. And in a way, I think what's even scarier right now is what we are seeing in response to both all of that litigation that we saw after the election that was unsuccessful and the attack on the capital, we are seeing in many, many, many states鈥攊n fact, 47 states introduced suppressive voter bills, this cycle. And we already have lawsuits in Georgia, in Iowa, in Montana. I think next, we'll see Florida probably within the next couple of days, maybe by the time people hear this it may have already happened. And several other states, and they are based on the same theories. And these are very, very scary bills. They are going to make it harder for lots of people to vote. They are, if they stay in place, they're going to fundamentally change a lot of the ways that elections are happening in the states and a lot of who can participate in them and who can't.
In terms of what we can do about it, I think there tends to be sometimes a feeling among lawyers in particular, that if they're not doing voting rights litigation, then there's not much they can do about it. And I think that's absolutely false. Obviously, like, when elections are happening, volunteering to monitor at the polls, and all of that kind of stuff is great. But, actually, when elections aren't happening, lawyers are, you know, their corporate counsel, they are in-house counsel, they're working with businesses, they're working in the communities, they are respected members of their communities. And at this point, all of us have an obligation to speak up, and to push back. And to say, this is not what our nation is, this is not how our democracy is supposed to work. It is far past, I think, the time when we any of us can afford or justify, frankly, looking away from it. And I think one of the things that we are seeing is that state legislatures that are inclined to pass these kinds of voter restrictions, they don't really hear the civil rights communities in the same ways anymore. I mean, they are just like, hell bent on doing this. And it's鈥攄on't get me wrong, it's super important, all the work that all voting rights organizations and groups that have been doing this work forever, are doing, that super important work, and everyone should continue doing it鈥攖hat the business community, and lawyers who work in other areas of the law, not just voting rights, who work with businesses need to also back them up, they need to step into the fight, they need to start saying, look, this is unacceptable. We need to think about making decisions about political contributions. And we also need to start making other kinds of business decisions. And I think that is fundamentally, it is hugely important.
At the end of the day, it is something that I think has been lacking, and that we're now starting to see I think, you know, Patagonia is a great example. They really stepped out in front of this and I think are being a real thought leader in this way. But it is no longer a time to sit on the sidelines. This impacts all of us. And, frankly, a lot of lawyers who work in business, the best thing that they can do is work in the channels in which they already work, to make this a priority to help their clients find the way to navigate this, to make sure that we're on the right side of this. And I think support, you know, all the civil rights organizations and all the voting rights organizations that have been doing this work for years.
JB: Lis Frost is a partner at global law firm Perkins Coie. She recently joined the law school for a special panel event on the rule of law and the 2021 presidential transition. You can learn more about her work, find more information about what we discussed today and you can check out upcoming events like this one at 红桃视频 over on our podcast page at law.uw.edu.
Lis, thank you so much for joining us today.
LF: Thank you so much. It was my pleasure.
