Republicans Look to Enact More Voting Restrictions

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Today we continue our May round of interviews with candidates for mayor of New York City. Coming up in a half-hour at 10:30, Scott Stringer will be on for that. I'll say just for transparency and context that this date with Stringer was set before the sexual abuse and harassment allegation against him by a former campaign volunteer, surfaced last Wednesday. Stringer has lost many endorsements but is staying in the race and did decide to keep this appointment on the show today.

We will talk to Scott Stringer about that and about our policy topic for this month, economic recovery meets economic justice. That's coming up in half an hour from now at 10:30. Also today, COVID conditions around the world. In countries that don't make the news very much like Nigeria, the Philippines and Serbia. We'll invite your calls if you have a connection to any country in the world and would like to inform Americans about how COVID is playing out elsewhere. New York state senator John Lu will be with us with a report from Albany and to tell a few stories from the past that you probably never learned in school, here in May, which is Asian American and Pacific Islander Heritage Month.

That's all coming up. We'll start with these two legal questions in the news, in New York and around the country. In New York, if a police officer is found to have lied in multiple cases that resulted in convictions, should all the other cases that officer testified in also be thrown out? Around the country, is the new Florida voting law even worse than the one in Georgia and how far will the GOP drive to make it harder to vote go without being stopped in court? With us first is WNYC legal editor and race and justice editor, Jami Floyd. Hi, Jami, welcome back to the show.

Jami Floyd: Good morning, Brian.

Brian Lehrer: What are the most restrictive parts of the Florida law that passed last week and how do they compare to the new Georgia law which has gotten so much publicity and blowback?

Jami Floyd: Right. First, Brian, I'll say there are hundreds of these voter suppression bills circulating in statehouses across America. I count about 250 such bills in 43 states. I'll do my best [laughs] to analyze them with some fairness and clarity, especially, as you say, Florida, Georgia, Georgia. Also top of radar, Texas, and Alabama. These are the places people are focused on. I'm not an election lawyer and you know, Brian, part of the reason that this is so fraught is that election law is a really highly specific area of constitutional law. It's a subsection, and there are people who spend their entire careers digging into the hundreds of provisions in each one of these laws.

Then to answer your question specifically, and doing my best, Florida passed in April a sweeping, multifaceted voter restriction bill. It's a Republican controlled legislature, of course, there in Florida, and it's known as SB 90, Senate Bill 90. It delivers to republican governor Rhonda Santas his promise to severely restrict access to the ballot. This all came about, of course, after former President Donald Trump lost the election nationwide but narrowly won in Florida, after saying that election security was a major issue in elections. Like laws in other states, you mentioned Georgia, SB 90 adds additional, and I would say unnecessary, burdens to voting and could potentially disenfranchise thousands of eligible voters in the state, most notably African American voters, but others as well.

Just to mention one provision that lines up with Georgia, Brian, the bill bans the distribution, get this, of food or water to voters waiting in line by anyone other than state poll workers. That's a provision they borrowed directly from the voter suppression bill in Georgia, SB 202. The bill is now headed to DeSantis' desk and he has promised to sign it. Of course, voting rights groups and Florida activists speaking out strongly against it. We can dig into some of the other provisions that go directly to vote by mail, which is really the main target of this bill.

Brian Lehrer: I think personally bringing water to somebody waiting in line to vote is a form of election fraud, but we'll pass over that.

Jami Floyd: [laughs]

Brian Lehrer: One thing that struck me from the reporting about the Florida Bill that seemed different and extremely relevant to the events of 2020 than the Georgia bill is restricting voting by mail in particular. Have you been able to take a look at that, how the Florida bill would restrict voting by mail compared to, obviously, the large amount of people that voted by mail in 2020?

Jami Floyd: Yes, that's exactly the primary focus of the bill. It would require voters to request their vote by mail ballots more frequently. It would ban drop boxes. They would go around the state and remove all of the drop boxes currently in place. It would allow only immediate family members to drop off vote by mail ballots, for people who are unable to do that themselves. It would remove every Florida voter who has an active request for a vote by mail ballot once it goes into effect, which would be by July 1st. Now, I want to just emphasize again, Brian, that election security was just not an issue last November, even though Donald Trump spread misinformation on that, lies I would say, about the stolen election.

Again, he won in Florida and officials there, the election officials who actually run the election rather than the people in the statehouse, are emphasizing that their voting systems represented, "the gold standard." This bill is not about the security of one election, it is not about the security of mail-in voting, despite those new provisions that I just read to you in this bill. It is really about preserving the GOP party control of the state.

Brian Lehrer: Tell me more about those Florida election officials. It was one thing that was very interesting to me in a New York Times article on this last Friday, a lot of our listeners will remember the Georgia situation with the Secretary of State there, Brad Raffensperger, who's an elected Republican, who certified the legitimacy of the 2020 election results and has been vilified by other members of his party who wanted to politicize them but. He was an elected election official, a Republican who stood on the integrity of the Georgia count. It looked to me, from a few lines that I read, that the same thing is happening in Florida. Is that what you were referring to?

Jami Floyd: Yes, that is precisely what's happening. A very similar divide on the ground in Florida as we saw in Georgia. Most republicans support the bill, especially those closest to the State House and the center of power, but local electeds, many of them the people who actually work the running of the elections, are coming out against the bill. First of all, Brian, it's going to cost taxpayers of Florida somewhere between $12 and $16 million to implement this bill. Beyond that, here's one very high-profile example. Mike Bennett, the Pascoe County GOP Supervisor of Elections, has come out against it. Brian Corley issued a statement as well, another Supervisor of Elections in another county.

I've spent a lot of time in Florida by the way, Brian. I was there for the entire Tallahassee recount. I know every county across the state. He issued a written statement which pretty much sums it up. This is Brian Corley. This sums up the way local officials feel about the bill, "I am literally befuddled as to why we would tweak a system that performed exceedingly well." He writes. "The current vote by mail statutes, policies and procedures, as well as the established security procedures with regards to vote by mail and drop boxes, worked extremely well in Pascoe County and, to my knowledge, all of Florida."

Then he goes on to talk about the new bill, "The provision that voids all vote by mail requests will not only impact millions of Florida voters but will cause an unfunded mandate of millions of dollars to the taxpayers of our great state." I could go on, Brian, to read similar quotes from other elected officials across the state but then Bennett it did say about this when asked by a reporter about the removal of drop boxes, so they have to go around the state to rip out the drop boxes as mandated by the bill. He says, "What the hell are you thinking?" [laughs] The bottom line, Brian, is that Florida is now being looked at as a national model for how an election ran so well.

Security, efficiency, why mess with all of that to implement a bill? If it's not broke, then why fix it? There are some good answers to that question.

Brian Lehrer: Well, does it look like these provisions would have disparate impact by race or that that appears to be the intent?

Jami Floyd: The answer to that is, yes. Yes, this is about race. It's clearly a grab about race and some other people who have traditionally been disenfranchised in the state of Florida and elsewhere. Traditionally our community, my community Brian, the African-American community, has expressed its power in two important ways, through protest and through voting. I think it's fair to say that what we're seeing from Florida lawmakers is a power grab to minimize Black voices because they fear the emergent Black power in the state and view it as a threat. This vote, I would say, Brian, and I've really tried to view it objectively, but I don't see it as anything other than a vote by the state legislature to usher in a new era of Jim Crow in Florida.

As much as they publicly insist that there's no racial motivation behind the bill, it can't be seen as anything else. There's no rational factual basis for it, especially when you see republican elected officials, many of them, most of them white, coming out against it. There's no doubt that it will directly impact Black voters who overwhelmingly vote Democratic.

Brian Lehrer: Listeners, we could take a few phone calls from anybody connected to Florida will get first priority right now. If you're in Florida, living in Florida right now, even visiting Florida for a period of time right now, and want to tell us how this looks from on the ground there, 646-435-7280. Maybe from Texas, which is going to be the next epicenter of this, it looks like. 646-435-7280, or tweet @BrianLehrer with our race and justice editor and legal editor, Jami Floyd. Jami, if it can be shown that these laws are targeted at African-Americans, is there enough left of the Civil Rights Act that they can be overturned in court as violating federal law?

Jami Floyd: You and I, Brian, we always like to talk about the Supreme Court, don't we? I know that's where you're going. I think we would rely here, Brian, on the Voting Rights Act rather than the Civil Rights Act. Then the real question is whether the Supreme Court has so dismantled the Voting Rights Act to render it ineffective for purposes of challenging any pernicious or unconstitutional voting laws. I just mentioned, there are hundreds of them now circulating in statehouses. There will certainly be challenges. As you and I discussed, Brian, the Voting Rights Act of 1965 was challenged in the famous Shelby case, Shelby versus Eric Holder. Shelby County challenging the Voting Rights Act, which was originally enacted as a response to the long history of voting discrimination.

The part of the Act most relevant here to your question, Section V, Subsection IV(b), prohibits certain parts of our country, districts, from enacting changes to their election laws and procedures without gaining official authorization, meaning they had to show whether the change was "neither has the purpose or will have the effect of negatively impacting an individual's right to vote based on race or minority status." That's exactly what we're talking about here, but then the Supreme Court said, Brian, in Shelby, that these pre-clearance requirements were unconstitutional. They strongly suggested that Congress go back and look at the law and revisit that part of the law, which Congress is now doing.

Brian, even though Shelby was a devastating decision in many ways for voting rights advocates, the court did not entirely invalidate the Voting Rights Act. It still outlaws discriminatory voting practices adopted in many southern states after the Civil War, and it still can be relied upon to challenge unconstitutionally burdensome laws. If these laws are unconstitutionally burdensome, that is targeting voters based on race or any unconstitutional status, then the Voting Rights Act is there for us to use it as intended. I guess it's a wait-and-see situation, Brian. It's going to be a long hard path, but it's rooted in our very challenging and ugly history of race and racism in this country.

Brian Lehrer: Andrew in Clearwater, Florida, you're on WNYC. Hi Andrew. Thanks for calling in.

Andrew: How's going, Brian? A longtime listener, called you once before way back when the high school shooting occurred down here. I work in the education system. Moved down here about a decade ago to take care of mom who's 99. She can only vote by mail, because realistically it's not practical to get to the polls anymore. I voted by mail, we've never had a single problem with any of the voting down here. I worked elections for several cycles down here as well. The system is flawless. I was actually running the polling machines. To me, as somebody who's been on both sides of this equation, this is nothing but an attempt to suppress the vote.

Brian Lehrer: Would it be fair to say that your mother at her age would still be allowed to vote by mail, you if you're healthy would not unless you've had some other excuse?

Andrew: I'm not sure how the system is going to evolve because, frankly, I think there's way too many voters in the state for that to not be challenged. Now, I'm pushing 60 myself and work with the school systems, and do not get a day off in order to vote. Voting is not a holiday down here for educators.

Brian Lehrer: Got you, Andrew. Got it, so you're going to figure that out for yourself. Jami, by the way, did I see this right? Did they just remove Election Day as a holiday in the New York City public schools?

Jami Floyd: That's a question for Jessica Gould, our education reporter. I have to say about Election Day as a holiday, I've often thought, Brian, I would run for office on one issue and one issue alone. I believe that Election Day should be a holiday for everyone. For everyone, not just educators, not just students, but certainly them and their families and you and I, Brian, all of us should be encouraged through a federal holiday and encourage the states to do the same. Everyone should have the day off work in a celebratory joyful way as we celebrate, say, July 4th.

I just don't understand why. I know that's not what we're here to talk about, but when I heard [laughs] Andrew mentioned that, it's the one issue I want to campaign on, but sadly, and I don't know the answer to that question, but we'll get it from Jessica.

Brian Lehrer: I was actually playing the old lawyers' game of never ask a question that you don't already know the answer to. The answer is yes. It will be a remote learning day now.

Jami Floyd: My question is whether it was removed because of all the changes related to COVID to the calendar, and whether it will come back in the future at some point when we get back on to a more regular schedule. There have been so many changes and losses for students, teachers, families, related to COVID, and they may have had to adapt. We'll dig into that.

Brian Lehrer: I think though they decided that they learned from the success, question mark, of remote learning apps that they don't need snow days anymore. Those are going to just go to remote learning days if it's too snowy to go in person. Same with Election Day, so that's for another segment.

Jami Floyd: Well, that's another segment for another day. I certainly have thoughts.

Brian Lehrer: Joanne in Miami, you're on WNYC. Hi, Joanne. Thanks so much for calling. Hello from New York.

Joanne: Hi, Brian, how are you? I love your show. I listened to it. I just want to say that they're doing this because we have a situation. A couple years ago, the people in the state of Florida voted to get convicted felons who did not have a violent crime or certain type of crime the ability to regain their voting rights back. That's another group of people that are predominantly voting Democratically. Then you have a generation of people with three, four generations of immigrants, and their children and their grandchildren, they're at voting age. That's another situation, they do not want that vote. Most of these people, they're voting predominantly Democratic, and that's an issue.

We are on the move, people are not just being saturated in living in Miami anymore, or just Broward County. They're moving throughout the state, therefore, it's more diverse, it's more broad, and that's where the problem is. Our current governor of Florida, he's looking to get reelected. He's going to try to do what his best buddy Donald Trump wasn't able to do, do two terms. We're a pickle. They're trying to suppress the vote and they're trying to do it any way they can.

Brian Lehrer: Joanne, thank you very much. Please call us again. One more on this then we're going to pivot with Jamie to something else. Victoria in Palm beach county, you're on WNYC. I think Victoria is calling in with a great point. If our screener got it right. Hi, Victoria.

Victoria: Thank you, Brian. Let us recall that in 2020, when Donald Trump was trashing vote by mail generally, even during a COVID crisis, when people were told not to leave home, he himself said, "Except Florida because their vote by mail system is great," and he votes by mail there and has. Whether that's legit or not given his questionable residency, but digression. Florida, where I moved five years ago and had never voted by mail in my life coming from New York city, has been such a pleasant surprise. I loved the system. I get the ballot about a month before the election. I get to do research, talk, discuss Google, take my time.

I've never had a problem because you can check with the board of elections to see if they have calculated your ballot. If they have not, and you've checked early enough, you have time to cure. In fact, you have time to cure after the election if for some reason, nefarious or otherwise, your signature has been rejected. This is unconscionable because Florida is a role model state when it comes to vote by mail and has been for a lot of years. We who live there are just beside ourselves with what DeSantis and the Republican legislature's doing. We feel we have nowhere to turn.

Brian Lehrer: Obviously there are a lot of Republicans there who are for it. Victoria, thank you. She reminds us of a detail of the 2020 presidential campaign that I remember now that she brings it up, which is that Trump was originally saying the vote by mail systems where you have to request an absentee ballot are fine. It was the vote by mail systems where some governors were mailing out all these absentee ballots to every registered voter where he thought there was a problem. That's no longer the standard. Now they're going after vote by mail as it existed. We're going to let that be the last word for this thread of the conversation. Thank you all of you.

I see it's easy to get calls from the sixth borough of New York, Florida. We'll continue with Jamie and our reporter, George Joseph in just a second on something else.

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Brian Lehrer: Brian Lehrer on WNYC with our legal editor and race and justice editor, Jami Floyd. Also with us now for the final part of this segment is WNYC and Gothamist reporter George Joseph. His latest article is called 22 NYPD officers were convicted of Dishonesty, Corruption, and other Misconduct. Should Convictions They helped Secure Stand? Hi, George. Welcome back to the show.

George Joseph: Hi. Good morning.

Brian Lehrer: Let's begin with what has already happened. Last month, the Brooklyn and Manhattan DAs announced they are moving to dismiss nearly 200 convictions involving just one lying cop. Can you remind us briefly of who that was and what he was found to have done?

George Joseph: Sure, Brian. In 2019, a veteran New York detective who worked in narcotics named Joseph Franco was indicted for lying in multiple drug cases. He had been caught because of video surveillance camera to be seen doing things and claiming things in sworn paperwork that were actually contradicted by video evidence. Manhattan prosecutors indicted him in 2019 and the question was, well, what happens to all of his other cases going back years? Subsequently, earlier this year, the Brooklyn DA announced that it was going to move to dismiss almost a hundred of his previous convictions that he had worked on or helped make in Brooklyn.

Then the Manhattan DA came out with similar news about more than a hundred convictions tied to Franco. Now on Monday, the special narcotics prosecutor came out saying that they're going to toss a couple dozen more. Hundreds of cases potentially linked to this single detective are now probably going to be erased.

Brian Lehrer: Now you report a coalition of criminal justice reform advocates has written a joint letter asking the DAs to revisit the convictions associated with 22 other New York City cops. Who are these officers as a group?

George Joseph: The legal aid society, the exoneration project, and a whole host of other exoneration wrongful conviction organizations have said, "Well, look, if you're doing this for one officer who was indicted for perjury, what about all the other officers over the years who've actually been convicted of crimes that speak to their credibility? Whether it be for false statements, working with drug dealers things relating to corruption generally. If we can't trust these officers because of what they were subsequently found to have done, why are all their thousands of convictions that they helped secure over their careers remaining on the books?" They asked the DAs across the city to summarily toss all of those convictions which relied on these officers' word.

Brian Lehrer: Have the DAs responded to that letter?

George Joseph: The letter was just sent and all the DAs responded that they are reviewing it. Obviously it's a really big ask. In the case of Franco, that detective, we mentioned earlier, in some ways, politically, it was a bit easier for the DAs just to toss his convictions because a lot of them were drug convictions. We don't yet know with these officers, are some of the convictions more relating to violent crimes. Would that be politically feasible for Das to just, without doing a case by case labor intensive review, throw out all those cases, even if that method would be following the same logic?

Brian Lehrer: Jami, as our legal editor, what does the law say about when perjury or other evidence fraud committed by a police officer witness has to result in the case being thrown out as opposed to just that witnesses testimony being disqualified?

Jami Floyd: Right? There were two, obviously, if it happens in the course of the trial the judge makes a decision in the moment. That's not what we're dealing with here. After a case, there are two ways it can be analyzed obviously on appeal and appellate court considers whether or not that officer's testimony was germane to the case. We have something called the error is either harmless or not. Very often appellate courts will say, "Well, that error was harmless." In other words, the person would have been convicted whether or not the officer had testified in that manner or had not testified at all. This person would have been convicted and so the conviction stands.

Very, very rarely are convictions reversed for harmful error. In this case, there is a request that is being made that George just talked about. The DAs could just make what would be a political rather than a legal decision to toss out a large number of cases. I've seen that happen before, Brian, in the course of my career, not often, but occasionally, where they will simply, for optics purposes, dispatch with a lot of cases rather than fight them out in court and or in the press.

Brian Lehrer: What does the law say about when a police officer witness is caught lying about one case or in multiple cases what responsibility the state has with respect to other convictions that included that cop's witness testimony or providing evidence from the same cop? Specifically to the ask and this letter for all the convictions that any of these cops had anything to do with to be revisited.

Jami Floyd: Well, the obligation of the district attorney's office in any jurisdiction is to justice and to do right by anyone who comes through the system. If they have an inkling that you may have been wrongfully prosecuted because of the testimony of a dirty police officer or even a police officer who may have just gotten it wrong, they're supposed to investigate all the cases tied to that potentially fraudulent or perjurious officer. Famous cases include the Rampart, famous Los Angeles Rampart, a series of cases where hundreds of cases were reopened and tossed out because of police corruption in a particular division of Los Angeles.

Another series of cases was in Austin, Texas, where Ronnie Earl, then the lead prosecutor in Austin, which is a very big jurisdiction. Not as big as New York, but large in Texas. He threw out 500 cases because of pretty much one detective who'd been working there for 15 years and turned out to be highly corrupt, perjuring himself, planting drugs on people and just outrageously dirty. It can be done and it should be done but think about the flip side, how often do officers perjure themselves or otherwise engage in bad behavior that we do not know about?

If we did not have this reporting by George and others, if we did not have aggressive investigations, aggressive defense attorneys advocating on behalf of their clients. If we did not know about Franco and Scarcella, another very notorious and YNPD detective, if we didn't know about them would these cases simply stand? The answer is yes, they would just stand. I don't know that district attorneys are doing this kind of investigation on their own.

Brian Lehrer: Yay for journalism. Jami, I know you got to go. I'm going to keep George on for a couple of closing questions. WNYC legal editor and race and justice editor, Jami Floyd. Thanks as always.

Jami Floyd: Thank you.

Brian Lehrer: George, before you go, one of the advocates you spoke with said the way these cases are handled needs to change in this era of criminal justice reform. Is that a matter of law or of politics?

George Joseph: It's completely a matter of politics, Brian, because one path that DAs could take in response to this demand is say, "We're going to do a case-by-case review. We're going to deploy our investigators to go back and try to track down old witnesses, find video tape, potentially in cases that are years to decades old. Then see if we can find actual innocence." That is fairly high burden and very cost and resource and time-intensive. What this advocate that you referred to was arguing was saying, "Well, what about all the people whose cases may not be able to have that evidence be found or who are simply suffering from the penalties of a conviction, such as not being able to get jobs, not being able to access housing, et cetera, because of that lag period?"

Their argument is just cleanly purge them all right now so that people can get relief. On the other hand for DAs, they don't necessarily want to get rid of serious convictions that they would argue potentially were legitimate until they've actually validated those reasons.

Brian Lehrer: Final question on the political side, do you know if the candidates for Manhattan DA, such a high profile race that's peaking right now before the June primary, are responding to this letter with any campaign promises related to it?

George Joseph: Yes. After the story came out, we did see several Manhattan DA candidates amplifying that call. That being said, I do not have clarity necessarily on how far they would go. Would all of these officers who are in this letter and other officers who have been flagged by the district attorney itself, as you may recall from our previous reporting, for credibility issues, would these candidates go further, expand this list themselves and then proactively purge thousands of these past convictions? That's the broadest possible possibility here but the exact plans for how to do that are unclear.

Brian Lehrer: WNYC and Gothamist reporter George Joseph. His latest article is called 22 NYPD Officers were convicted of Dishonesty, Corruption, and other Misconduct. Should Convictions they helped Secure Stand? George, keep it up. Thanks a lot.

George Joseph: Thanks, Brian.

 

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