Around The Table: Election Laws

KDKA Political Editor Jon Delano leads a discussion with political experts from both parties, on proposed changes to election laws

Video Transcript

STACY SMITH: Welcome to another edition of "Around the Table-- Politics 2021." The aftermath of the 2020 election is still with us, as state legislatures around the country are debating and enacting new election laws. One state that has already done that is the state of Georgia, and the debate is heated-- to the point the President of the United States has called it Jim Crow on steroids.

So let us begin our discussion. And joining me today are two astute political analysts who have played the game at the highest level of state politics. On the Republican side is former Governor of Pennsylvania, Tom Corbett. Mr. Corbett also served as the State Attorney General for the State of Pennsylvania and also as the US Attorney for the Western District of Pennsylvania. The governor now teaches law at Duquesne University.

On the Democratic side, we find Jim Burn. Jim is a former Chairman of the state Democratic party. He also served as Chairman of the Allegheny County Council and elected numerous times as Mayor of Millville. Jim, by the way, now practices law here in the city of Pittsburgh.

Before we begin this discussion, though, I have to say this-- that ViacomCBS, the parent company of KDKA TV has publicly expressed opposition to George's recently passed voting bill, adding its name to a list of corporations that are speaking out on this new law. So now that I have that out of the way, let's do this. OK, Jim, I'm going to start with you. "Jim Crow on steroids"-- is that maybe just a little over the top?

JIM BURN: Well, it's an emphatic point being made. It's a very extreme point, but unfortunately there is some applicability. Any time you enact or attempt to enact legislation that is putting additional compliance or restriction on voting, and when you look at the demographic that any attempts in that regard affect the most-- and in this case, in all analysis I've seen, African-American and minority voters-- immediately red flags go up. And you have to do the due diligence to see what the real motive is behind the legislation.

Republicans in Georgia have purported that this is to prevent widespread voter fraud, that there were anomalies or irregularities. But your viewers certainly remember that only a few months ago, it was Republican governors who signed this legislation, and secretaries of state who said there was no fraud in Georgia, there were no issues in Georgia-- they pushed back on President Trump's allegations of same.

But yet, then they turned around and they enacted some legislation that when applied will have a significant risk of suppressing minority votes. So it's a very extreme statement, but unfortunately, one that seems to have some applicability in this case.

STACY SMITH: Governor.

TOM CORBETT: Well, I agree. Not only is it an extreme statement, it is one that is aimed to try to get everybody's attention. It's over the top. And if you go back and you look at some of the legislation-- I've looked at a little bit of it-- this is a Jim Crow, a black couldn't vote. It was made impossible. And he's comparing it to that, when he says that Jim Crow law. Is it a restriction in some areas? It is. I would note that in the area of getting an absentee ballot-- and that's a good question to follow up on, maybe not today but in the future, about how we're going to do absentee ballots versus mail in voting-- they reduce the amount of time that somebody could request an absentee ballot before the election. But they reduced it still to a period of time that is longer than what we have here in Pennsylvania, so every state does it differently. And I think it's very hard to just give a blanket statement, "back to the Jim Crow days," when it really isn't the case.

JIM BURN: Stacy, I think the point I was trying to make-- I think the governor did it excellently-- is what the president tried to do is shoot up a flare. He made an extreme statement to draw attention to an issue that brings him and many others concern. Many of us in positions of executive office have at one time or another done something similar on an issue where we think people need to start paying attention.

If you come at that issue in a moderate tone, or a matter of fact tone, you will not get the attention that you think the issue needs or deserves. So a statement like what the president made, or one that perhaps the governor had made in his career, or one that I had made in mine, are necessary sometimes to get people focused to hear what your concerns are.

STACY SMITH: All right, now the governor of Georgia says that this is not restrictive at all. Tell me how this is more restrictive, Jim?

JIM BURN: Well, absolutely. And Governor Corbett touched on it. You're talking about additional restrictions with respect to Identification requirements-- pre-existing forms of photo ID or driver's licenses, and I'm generally speaking, I don't have the nuances of the subdivisions, but you're talking about identification issues.

You're talking about less amount of time to get the ballots-- it's cut in half, I believe. And when you look to see the demographic that is affected, those who may not have these prerequisite forms of identification, you'll see that it has a disproportionate effect on minority voters, and those voters who more often than not will vote for Democratic candidates.

And that fact, to my first point, to your first question, is the type of issue and concern that raises red flags for constitutionalists and those who believe that we may be crossing some lines with respect to the constitutional right to vote.

STACY SMITH: Governor.

TOM CORBETT: Going back to the previous question-- there was a soundbite that he created with that. You take that soundbite into this discussion, and I believe that Georgia did have a form of voter identification law. I remember when I was governor, I was trying to get voter identification law and was killed for it. We don't have it really here in Pennsylvania, so we're less restrictive than anybody. And I've always had the belief that we should have some form of identification because we have identification almost in this day and age to go anywhere. If you want to get into a building, you've got to show some kind of identification.

So if they've gone from having identification to maybe a little more requirement, is that Jim Crow law? I don't know. I think what happens though-- what's happening, is it's occurred after this presidential election. Everybody's tempers are still high. It's an evenly divided-- almost evenly divided country. And I think the Republicans misplayed their hand by making so many changes in Georgia in this election year. They would have waited another year-- this would probably be a ripple as compared to a wave.

JIM BURN: That's a great point. And when Governor Corbett introduced the legislation in Pennsylvania, I was chairman of the state party at the time. And we put together a very coordinated campaign, pushing back on what we thought were constitutional concerns. The governor may not want to comment on this, but I suspect that he wasn't too pleased when former Speaker and leader Mike Turzai, at a Republican state committee meeting, knocked off a list of accomplishments and saying voter ID would allow Mitt Romney to win Pennsylvania.

That supported the narrative that we had, that the attempts-- and I'm not saying that the attempts were politically motivated to suppress Democratic votes-- Mr Turzai didn't help the governor's efforts. But one of the things that pushed our narrative was the disproportionate effect of some of these identification requirements, and what they were going to have on minority voters. Many minority voters in Pennsylvania at that time didn't have the ID or the identifications that would have been required had that law stayed on the books. Now, we were prepared to do what we had to do to go door-to-door if necessary to make sure people would be in compliance, if we were not successful in court.

But once you get to an issue that affects a constitutional right, walking-- and the difference we tried to make then to these arguments about identification being used in other situations, not every situation that requires identification is a constitutional right. Voter ID is. Or, voting is. So if you're going to have ID for voting, it's a constitutional right. You need-- the bar goes up. You need to have a very, very compelling reason to ask somebody to have identification to exercise one of their constitutional rights, versus walking into a club with an ID to show that you're 21. Night and day. And we were able to convince the court, and the state wasn't able to convince the court, that they could surpass that higher constitutional threshold. Many states that are starting to do this, you're going to see that argument take place.

And the governor's point is excellent. Why did Georgia move so quickly after everything that happened last year across America, but in particular their state. Georgia was the flash point-- the National flash point. And then within months of this settling, they go right in and try to change their voter ID laws. So they brought a lot of this on themselves. You're right, Governor, I think if they would have waited another year or so, there may have been push back there-- would have been pushback. It would not have been as vociferous is what we're seeing here.

TOM CORBETT: And I would say that my recollection-- I don't have the legislation we had introduced in of me-- that in that legislation, we were going to provide voter ID cards to any voter who didn't have some form of ID. Which, I think, solves that constitutionality issue. It would be very easy enough to provide that, if they're willing to take it. And I never understood the pushback of, well, we don't want voter identification cards.

JIM BURN: A couple of the concerns where the timing of it, of many concerns. In addition to the constitutional issues, the demographic, the effect on voters who vote Democrat, the disproportionate effect number one. Number two, the timing of it, Governor, it was being rolled out in the spring into the summer of 2012, when we had less than six months to get millions and millions of Pennsylvanians into compliance. One of the arguments we had--

TOM CORBETT: I'm going to argue with you about the millions and millions, there you're exaggerating.

JIM BURN: A lot, a lot of folks. And we got up into the tea, how are we going to get these folks to these locations that you had made available for them to be in compliance. It was a gargantuan task. I don't have the number. I'm doing a Joe Biden there, but I don't have the number, and it was going to be a yeoman's work. So one of the arguments we had also made, next to constitutionality, was the narrow window in the locations and the practical impossibility of accomplishing that.

TOM CORBETT: So, here's my argument back to you. What is the percentage of people that go to vote? Particularly if you're talking about the Tea, because you know the Tea's in a Republican area, that don't have a driver's license. That's the category of people that you're looking at, and that's why I argue with you. It's not millions and millions. It may be tens, twenty of thousands but it's not that number.

JIM BURN: I wish I had my playbook out. I wish we both had our playbooks out, so we could revisit what we did eight years ago. But I do know one of the examples I made on the talk shows that summer, and that had national attention, we did everything from local to National. Sophie Maslov, who voted at her same high rise in Squirrel Hill for decades, she would come down that elevator every year and go over to the station and cast her vote. Under that proposed law, she would not have been able to do that. She did not have the criteria. She would have needed-- we could have gotten it for Sophie, but how many Sophies were out there that we may not have been able to get to across Pennsylvania in time to vote. That was a big argument for us.

STACY SMITH: Well, I want to ask this question. Basically are Democrats they want anybody to be able to vote no matter what is that really where we're coming in on this thing. I mean, if there's no identification, as far as voter registration goes, it's proposed some places on the flip side of Republicans, same day registration, and you can vote the same day as you register. I mean, where does it-- shouldn't there be some sort of rules in effect?

JIM BURN: There are rules in effect. And there have been rules for 200 years, there have been rules for 200 years. Rules before you were able to take a picture of someone. And you know what? They've worked. Because when you look statistically at voter fraud, and that's the argument being made to do this primarily, show me how many cases of voter fraud in proportion to hundreds and hundreds of millions of votes that are cast-- and that's a real hundreds of, how many, 83 million for Biden and 75 million for Mr. Trump?

OK. You're almost up to like 200 million right there. How many cases of voter fraud statistically? You have a better chance of walking out of the KDKA studio and getting hit by a piece of the space debris or the Space Station than you do of finding all of this widespread voter fraud that necessitates photo identification. There are compliance issues in place currently, and guess what? They work. They work.

Oh, are you going to catch people doing things? Inevitably, you will. One out of thousands every time. But does that-- is that offset by the need to produce photo ID and get people into compliance, who it's more difficult to do, and when you have a disproportionate effect on minority voters who tend to vote Democratic? And, Stacy and Governor, for the most part, the courts have ruled on our favor because of the constitutional thresholds-- the proponents have failed to justify and have failed to meet.

TOM CORBETT: Let me express two observations. Number one is a lot of things changed this year because of COVID in the election of 2020. It will be interesting to see what goes, transpires, afterwards. The number of drop off boxes-- we didn't have drop-off boxes before. And now they're complaining in Georgia that reducing the number of drop boxes-- well nobody was complaining before this election that we didn't have drop-off boxes.

So that's one argument. Another argument, and this personally happened me. I received in the mail from the Department of Elections here in Allegheny County an application form to register to vote. Now, I'm already registered to vote, but all of a sudden in the mail-- that kind of mailing like that, I have a concern if those kind of mailings going out everywhere-- and I've not called the department of elections. I probably should have before I came on TV. How do you do that? And how do you ensure that the person who signs your name as Tom Corbett is actually Tom Corbett.

JIM BURN: The introduction of the boxes interjects a variable that the governor and I did not have in 2012, absolutely. It's new, yes. Do we need to see how it works? Yes. Do we just turn a blind eye and assume it's humming along without incident? Absolutely not. You have to be sure that it works. If there are issues with it, you tweak them. Issues does not immediately equate to voter fraud, however. So you look to see what works.

The governor got over an application to register to vote. I would suspect had he filled that out and sent it in, it would have been flagged. Somebody would have caught it, because they had-- and that's across Allegheny. That's across the state, across the country. That is the type of glitch that you correct. But if some nefarious individual received that and thought that he or she had an opportunity to vote twice, I can assure you they would have been flagged. They would have been caught. It would have been found when those ballots came in.

Because when those forms came in, they were checked against-- they were cross-referenced against lists of already registered voters. And it would have been caught. People were doing one thing over here, sending those out, while people are doing one thing over here. That's the type of coordination and confluence you need because you're rolling out these new methods to try to vote in a pandemic situation.

STACY SMITH: All right, one final question on this, because I want to move on to another aspect of it, but I have to ask this. What should be done if you show up in person as I did the vote in 2020 in November, my signature was checked. But the mail-in ballots, the courts decided, well, if it's eligible or whatever this might be, just let it go. So isn't that putting an undue burden on me if I show up to vote as opposed to those who mail in a ballot?

JIM BURN: Are you asking me or the governor?

STACY SMITH: Yeah, either one of you, or both of you.

JIM BURN: No, it's not an undue burden when you're going in. Now, if you're saying that signatures are not required to be checked for the mail-in ballots, there were-- and do I have the specificity? No. But there were still compliance procedures in place when the ballots got put in.

I don't have the verbiage of the court decisions that you're reciting to give you a more detailed explanation as to why the justification was given, but it is not my understanding that if you chose to just mail it in, that somehow your signature was not going to be looked at by someone at some point. I do not believe that to be the case. So I don't believe it's an undue different burden, I just think it's the same burden analyzed differently based on the nature of how you voted. And it may be if I looked at the case, I could be corrected, but I'm trying to get into the same church of justification that the court gave for that.

STACY SMITH: I guess it wasn't so much as justification as much as as--

TOM CORBETT: Observation.

STACY SMITH: Pardon me?

TOM CORBETT: Observation. It's an observation, and you're right. And Jim, I'm going to be putting my cynical nature in as a prosecutor, to say they have tens of thousands of ballots coming in envelope, that we're coming to absentee or by mail in voting. I would be very surprised if they were sitting there looking and comparing the signatures. They're opening those ballots, and putting them in a stack, and they're feeding into a machine-- which is what I would do.

JIM BURN: That's a little bit of a different point but yes you know so many were coming in there is a compliance protocol in place. The question that you raise is did they do it? Did they do the due diligence? We don't know. They're going to say they did, but do we really know? So if you take the next step, well if they didn't, does that immediately constitute or equate to widespread voter fraud? And I would say that it does not.

And Donald Trump attempted to make that argument in over 65 cases in federal courts, where judges he appointed were presiding. And they all said no, that's not 1 plus 1 equals 2. You would need of those 10,000 or more vote mail ins that you're talking about coming in, and you assume people didn't do the due diligence. That would have been a conspiracy of epic proportions and a coordinated attempt to disrupt the system, and hoping that people in the courthouse were not paying attention. And that was just not an argument that any lawyer put in front of a judge.

STACY SMITH: I want to I don't want to get too much into the weeds of all these things, but governor why don't Republicans just embrace the changes that have been made, and work as the Democrats have to bring more Republicans, and using these different aspects of the drop off, the mail in voting, and all these sorts of things.

TOM CORBETT: I'm not in the legislature now, and I'm not out there, but one of the things I think is prohibiting that is the legislatures here in Pennsylvania, around the country, and the Congress, can't get together on anything. I would say let's look at something, and let's see if we can find a happy medium in between. We're never going to agree on everything on that.

And for instance, I'm going to look at-- let's talk about absentee voting. Absentee voting is only supposed to be when you know you're not going to be available, or you got sick, and you can get an emergency management, emergency ballot here in Pennsylvania. It's very limited. Because of COVID, everybody became absentee. What's going to happen? I mean, have they discussed, are we going to have that expanded absentee in 2021? Or 22?

| are we going to go back to what the rules were here in Pennsylvania? I suspect that the legislature has not talked about that yet. Secondly, with the mail-in voting-- the length of time to send it in, here is an issue that I always said. What happens if somebody voted for Donald Trump the very first day of mail-in voting, and by two days before the election, decided no, no, no, no.

You know, I don't want to do that. Can they go in, are they going to stand in line and go in and say, yeah, I mailed in a vote, but I want to change my vote. That's a small side issue but all these changes came about because of COVID, without any real thought process as to how it was going to go we're resolving an issue that really had nothing to do with elections, that had to do with health. And now when we get through the COVID, what's going to happen when we get to even the primary that's coming up? What are we going to do there? What are we going to do in November?

JIM BURN: I agree. You know, it was a necessary evil to loosen up the absentee ballot requirements. And for health reasons, you're going to have to have a conversation if you're in the legislature about what you do once we get past this. I don't necessarily think it's a good idea to keep it as is. You get out of the health crisis, you've got to roll some of that back. If not all the way back to where it was, you've got to roll back to some extent.

Because like you said, Governor, you write a law, then you have case law and regulation to further put meat on the bones. We don't have that here yet. And the sooner we roll it back, the less compliance we'll need, because inevitably people are going to start looking for ways to challenge it, or to kick the fence, or to test it. And unless you can show under these new guidances, that you have an excellent compliance system in place, to be sure these are accurate votes, you're going to invite arguments and you're going to encourage legislators to create voter ID laws.

And courts may be more receptive, if you don't roll this back and/or show the courts what you're doing to be sure that there isn't any change.

STACY SMITH: I just want to be clear-- clarify here, Jim, what you mean when you're talking about rollback, because you have earlier kind of embraced some of the changes that have been made.

JIM BURN: I've embraced them. The governor made a point about how we just went wide open. Anybody could do absentee ballot because of the virus. I get that, I appreciate that, and I think we need that because of the health reasons. When we get past the health reasons, one of two things. Keep it as is, which I like-- but you better have a lot of compliance around it. Or roll it back somewhat, and you still better have a lot of compliance around, because if you don't, legislators across the country are going to see an opportunity to enact voter identification laws, and they could get away with it if you don't show that you have a good compliance system in place for these loosened restrictions on absentee ballots. That's the point I'm trying to make.

STACY SMITH: All right, let's move on to what else has happened here in regards to the Georgia election laws. That is, of course, the corporate reaction from Coca-Cola to Delta and to Major League Baseball pulling the all-star game from Atlanta and moving it to Denver. Governor, your reaction to this.

TOM CORBETT: You know, I was watching CBS This Morning just today and watching last night. And noticing that the mayor of Atlanta and the Mayor of Augusta, they're not happy with the boycotts because it's going to affect them economically. I believe to a certain extent, it is a reaction to what is going on, certainly understand that. Jim and I take the long view-- this is the short view. The long view, in my opinion, would have been if I was Major League Baseball, I would have said, we're still going to have it, but we're going to address it. We're going to talk about it, but we're not going to deny all the citizens of Georgia the opportunity to host all star game the economic impact and that's there. Now, I know there's a lot of people who disagree with me, but we're entitled to have our disagreements.

JIM BURN: I suspect that the accountants in these corporations did some analysis-- I still think they're making a business decision. I don't think it's necessarily as political as they may purported for it to be. I think they saw the demographics that were being effective. I conversed the governor arguably you could say that if they chose to stay the outcry from so many Georgians who were adversely affected by this would have been so toxic for their business, that it could have had a much worse impact on their bottom line than if they had pulled out.

Somebody advised a corporate board or boards that was a likely outcome of not taking the action that they took. But now you interject corporations into the political fray by doing this, and both parties have to be guilty of-- have to be cautious of their situational ethics when this happens. With their booing or their cheering of corporations making political decisions. We saw the Democrats cheering certain corporations who said they would no longer give money to those who voted against the will of the electoral college.

Now the Democrats are booing those same corporations and trying to boycott them, because they're now giving money to Republican PACs who in turn give money to those who voted against the electoral will. So, and I could talk about Mitch McConnell too doing the same thing. You guys better be careful but still write checks to us. So it creates it creates a lot of gray area, but I still at the end of the day my answer Stacey, I think these corporations are still making business decisions when they do these when they put these political triggers.

STACY SMITH: Basically, I think you might be on to something there, Jim, but for Major League Baseball, a business decision to move it from Atlanta to Denver-- it's estimated that we're talking tens of millions of dollars that Atlanta is now going to lose. Denver has a white population of 53.6%, Atlanta is 37.3%. So the reverse of that is Atlanta has a black population of 51.8 Denver a black population of 9.2%. When we're talking about tens of millions of dollars, that means a lot of these businesses in Atlanta are run by African-Americans. They're going to lose out on this deal.

JIM BURN: Is that for me, Stacy?

STACY SMITH: Both of you.

JIM BURN: Very quickly. I hogged up the last segment pretty good there. I think if you were to go to those businesses in Georgia and in Atlanta and in Fulton County, and to the demographics who would have been affected by this voter ID, I think you're going to see high, very high, percentages of those demographics applauding the decision of Major League Baseball to take the game out of there for the reasons we discussed. I mean, Hank Aaron's family's already stepped up big and big time support of Major League Baseball's decision to move the game.

STACY SMITH: All right, Governor.

TOM CORBETT: You know, I keep going back to think that they could have done this in a better way by going there, but bringing this issue to the forefront. I think they did the economic thing. We're going to get out of here because this is going to bother us. Eventually, those economics are going to change again, as we go through the season as we go through this year and next year. I just go back and note that the turbulent last four years continue into this administration, and a lot of the reaction of the administration is based on what happened four years ago as compared to what's happening today.

STACY SMITH: All right, gentlemen, we're going to wrap it up at this point. Thank you so much, if you're hearing some banging around here, it's because they're doing some gutter work trying to get me out of the gutter for once in my life.

TOM CORBETT: I didn't know you bowled.

STACY SMITH: And it's always in the gutter, when I do that. Gentlemen, thanks so much. We'll be doing this again relatively soon. Well maybe we'll start talking about that other stimulus thing called the infrastructure that the Biden administration is pushing and some Republicans are opposed to, on the next time we get together.

TOM CORBETT: Let me add one thing. I'm very disappointed our counterparts didn't show up with us.

STACY SMITH: I know. I am too.

TOM CORBETT: And I'm going to say publicly, they didn't want to get into this conversation. I'm going to tease them.

STACY SMITH: All right, thank you guys. Talk to you soon.

- Great to be with you both. Thank you