Juan Ochoa

Welcome to the Michigan Minds podcast, where we explore the wealth of knowledge from faculty experts at the University of Michigan. I am an International Public Relations representative for the Michigan News Office. I am pleased to welcome Ekow Yankah, the Thomas M Cooley Professor of Law and the associate dean for Faculty and Research at the University of Michigan Law School.

Beyond his research, he served for years as the co-chair of the New York Democratic Lawyers Council, the voting rights arm of the New York State Democratic Committee and the coordinating arm of the DNC. In 2020, the New York Democratic Lawyers Council honored him with the Guardian of Democracy Award. That same year, he was appointed to the New York State Public Campaign Finance Board, which he chaired for nearly three years.

Welcome, Professor Yankah.

Ekow Yankah

Thanks for having me.

Juan Ochoa

We often hear talk about nationalizing our elections since the Constitution leaves election power to the states. What are the actual legal roadblocks that would stop the president or congress from doing that?

Ekow Yankah

You put your finger on it. The Constitution guarantees, as far as we can hold it, a Republican form of government, but makes explicit that elections are to be governed on the state and local level. That is, a state has its own power and control over how it’s going to execute that election without either a radical reinterpretation of that by the Supreme Court, which even an aggressively conservative Supreme Court would struggle to change the meaning of, frankly, a constitutional amendment.

I think any of these proposals that are swirling around the air, in particular the Save America Act proposed by the president, strike me as almost certainly constitutionally dead on arrival without radical reinterpretation by even an aggressively conservative Supreme Court that would struggle to change the meaning of that or constitutional amendment. I think any of these proposals that are swirling around, they can try to nibble at the edges.

But a real fundamental change strikes me as constitutionally dead on arrival.

Juan Ochoa

Would there be any scenario under the current law that would allow the federal government to legally step in and take over how a state runs the elections.

Ekow Yankah

To take over strikes? It’s very difficult. I mean, the only possibilities we hear about and to be really honest, these are kind of either dark possibilities bordering on nihilistic fantasies. Are these kinds of ideas where people think under certain kinds of emergency acts, that you wouldn’t so much nationalize the elections as you would stop them? I could imagine somebody trying to do such a thing.

If it was allowed, it would really be because we were watching our constitutional order collapse, not because somebody was legally carefully following the law.

Juan Ochoa

And if a federal takeover were attempted. What is the core legal argument for why that would be considered unconstitutional?

Ekow Yankah

The basic argument is the reminder that it’s not as though you have to find an argument as to why the government is not allowed to do something. In a real sense, you have to find an argument as to why the government is allowed to do something, and it’s just very hard to see what the government’s statutory power would be.

Now, again, if this were not constitutionally blocked, the government could make arguments that, you know, Congress should pass a law. It would certainly, you know, it would certainly look like it fit under the Commerce Clause. But again, these all run into a constitutional roadblock. But I guess we should take a moment just to remind ourselves. Look, I mean, I know that we are all caught up in our daily lives, but, you know, you should remind yourself whether you’re a lover of history for fun or a podcast or just remembering back to high school, that when you read about the ways in which political units collapse, the way in which empires crumble, the way in which

the Russian Empire turned into the USSR, these are not about what was written down in the books. It’s about whether or not people have the political will to enforce their political commitments. You know, armies can march through the teeth of a constitution. And part of the question is whether or not we as Americans are sufficiently dedicated and, frankly, sufficiently invested that we’re not going to allow every conspiracy theory and rumor to make us stand down in front of those who would, who would undermine our constitutional democracy.

Juan Ochoa

When we hear claims of widespread voter fraud in the news. What kind of high level evidence do courts actually require before they would even consider overturning an election result?

Ekow Yankah

We should be really clear about this. There is no evidence of voter fraud. I mean, people should just be really, really clear about this. It gets exhausting. Indeed. There’s something I understand that some of us who have worked in elections, election protection sometimes get frustrated because it feels like you’re fighting against imaginary dragons or something, even having to make these arguments.

So let’s just be clear. There is no voter fraud. Maybe in our history there have been some remarkable moments. You know, we all hear stories about a stolen Chicago election here or a mob. But in modern history, there is no voter fraud, even when those who are most skeptical. Take former high level politicians like Kobach in Kansas are given extraordinary powers to investigate and find this voter fraud, that they have convinced people exist.

They can’t find it. Even when President Trump argued over and over and over that something had gone amiss in the elections and sent disgraced mayors like Rudy Giuliani to make these arguments, they couldn’t find it ever. People brought countless claims in front of federal judges, whether those judges were appointed by Republicans or Democrats, including judges that were appointed by President Trump himself.

They were one after another after another tossed out of court. That is to say, under all the circumstances where people have looked long, winding audits that will come back with three or five, maybe eight mistaken votes in elections of millions are the closest we find. So unless somebody wants to tell me that five miscast ballots of 12 million is evidence of voter fraud, there’s just no serious conversation to be had here.

Juan Ochoa

There’s a group of people who will mention, oh, you know, there were five cases of voter fraud. But like you say, it’s not tipping the election one way to another. They’ll come back and say, why are you okay with any type of voter fraud? What would you say then?

Ekow Yankah

Look, I mean, I don’t believe in voter fraud. I think these arguments are somewhat odd. If I could take it down from three miscast votes to zero, I would. But here’s the question we should ask ourselves in really good faith. Because if people really are worried about this, and I understand that if people really think or if people think, there’s symbolic reasons, for example, to have an ID law, if there are other reasons, then we should talk about these things.

I want to take those who are worried seriously and credit them with good faith, but then they have to come to the table in good faith. They have to come to the table having a serious discussion about what we’re facing. So here’s the question. I say back to colleagues I’ve had, and I don’t think of these people just as opponents.

Some of them are because I think they are genuinely in bad faith. But I have worked in offices. I have worked for the state of New York, for example, trying to get our elections right. I’ve sat across from Republicans where we’re trying to figure out the best thing to do for all the people. And here’s the question I asked them: How much structure are we willing to put in place in order to stop three miscast votes?

If we know, absolutely know that this will cause, for example, 15,000 people who have the right to vote to be unable to vote. At some point, we have to have a real conversation about which one of these two procedures is protecting the people’s will. And I think it’s pretty clear.

Juan Ochoa

As a legal expert, how do you distinguish between a law that is genuinely designed to secure an election and one that ends up suppressing voters?

Ekow Yankah

Yeah, I think look, I think given where we are and given what we know about the actual minuscule to vanishing instances of voter fraud laws that build and place obstructions in front of voters, that stop people from voting should be treated with deep suspicion, especially when we see these laws over and over being aimed at minority communities, at poor communities.

When we see the way, for example, in Georgia, people are willing to pass regulatory laws that mean that we’re going to count black, Hispanic, and other votes differently than we count white votes. We have every reason to be suspicious. Indeed, the Republicans, who we should be proud of are the ones who say. And fair enough. I’m not going to change the way we count Hispanic votes.

Ekow Yankah

I’m going to go win Hispanic votes. I’m going to show you that you can’t just think if this person is Hispanic, Chinese, Asian, that they’re going to vote for you. That’s the way democracy should run. But if you want to tell me that what you really care about is protecting the vote, then you have to show me that you care about both sides of the coin.

So, for example, I’ve negotiated with Republicans and said, I’m willing to talk about ID laws that will make it harder for some people to vote. If you’re willing to show me that we as a state, will provide IDs for those who qualify in order to make sure that we’re not making it harder to vote. And when I get people with whom I’m negotiating who say they’re willing to put up roadblocks but not willing to make it possible for easier for those who are legally have the right to vote, to vote, then it’s hard for me to think that what they’re really interested in here is about making our elections safer and more accessible for everybody.

Juan Ochoa

Would you say that what this administration is doing currently, in terms of asking for the voter registration records from places like Detroit, would you say that that is one tactic that they’re trying to figure out on how to suppress these voters?

Ekow Yankah

Yeah, that’s a great question. So, look, I think there are two very important things happening here. And we should just be very clear about them. One is about our deep history. That’s always been the case and one is about our particular moment in our deep history. We should be clear that the political power of minorities has always been treated as though it’s inherently suspicious.

So we should be clear that it was really distressing. It was a five alarm fire when we had a Michigan elected official during the voting between Trump and Biden, who said, I’m willing to certify all the votes except for the votes that are coming out of Detroit. That is part of our long history, that political power is fair and justified, unless, for example, it’s black political power.

So when Donald Trump said, oh, we know what’s going on in these places in Philadelphia, in Detroit, in Maricopa County, it’s not an accident that he’s pointing at places where minorities vote. It is part of our long history of thinking that minority political power should be treated as innately suspicious. That has been with us for a long time.

But the second thing that’s happening is not about our history, but it’s about this particular moment, and there’s just no other way to put it. We have a peculiar and destructive president who has made his administration reflect just his peculiar and destructive fascinations and fantasies. So the fact that we just have a man who’s psychologically unable to process that he lost an election, means that the reaches of the federal government are constantly trying to calm and reassure him that he’s not a loser.

We are undermining people’s confidence in our national elections just to secure the ego of one particular man. The FBI is raiding. Let me say that again. The FBI is raiding the offices of election officials and voting stations in order to make one person feel better because they have not learned the adult lesson that I have taught my 12 year old, you win some, and you lose some.

Juan Ochoa

For those feeling a bit anxious about this November, what are the main physical and legal checks and balances that ensure every vote is actually protected and counted correctly?

Ekow Yankah

I mean, it really saddens me that there has been a years-long campaign to undermine people’s faith in the integrity of our elections. There’s a lot to worry about, and there’s a lot to worry about in terms of the way that we process and think about our elections. So it is really worrying that misinformation can spread all across the internet.

It is really worrying that people get their facts from not just internal parties that want to persuade you, but from external adversaries who have a real interest in us distrusting each other. There are just a million different ways in which our moment and our history has made it the case that people want you not to think as clearly as you can about what vote will forward your life and your community.

But outside of that, once you walk into the voting booth, the odds of somebody being able to manipulate what you actually vote and changing the way that’s counted, you know, the best way I put it is the amount of elegance and effort it took in a fantasy. Ocean’s 11 to pull off a Las Vegas heist would pale in comparison to what it would take to pull off a fixed election.

Our elections are intensely local. They have checks and balances all over the place. In order to fix an election, you would have to organize literally hundreds of officials from across the state of Michigan. By the way, hundreds of officials who themselves are checked by technology. The technology is checked by people. The technology cross checks each other. And if none of that makes you feel better knowing that in state after state, I can tell you how it works in Michigan, how it worked in New York.

All of these votes are counted in a bipartisan manner. So you often have an election official or a Republican and a Democrat in the case of Michigan, New York, who are there side by side counting and verifying these results. So unless you could convince all of those people, for some bizarre reason, to decide to fix an election for somebody else and keep it secret between all those hundreds of people, then you might be able to swing the election in one place, and even then, you would almost certainly trip all the wires of the technology.

And by the way, all outside observers would suddenly notice when one county swayed wildly one way, it borders on the impossible.

Juan Ochoa

You touched on a point that I was interested in terms of distrusting. We are taught to distrust each other. What are some of the ways that we can combat that?

Ekow Yankah

This is really … this might be the question of our moment. This might be the question, frankly, of this upcoming generation. It’s hard to know exactly how to fight against these things, not least of which because there’s a huge financial incentive in us actually not speaking about things with much clarity or subtlety. I’m not immune to it.

Right? It’s very easy. When I’m tired of getting on my phone, the algorithm will give me the most outrageous thing that somebody I disagree said. It will do it out of context and make them look outrageously stupid. It will then cultivate all the people, 99.9% of whom I don’t know, including Russian troll bots and Chinese trolls who will amplify that stupid thing.

And then it’ll become very easy for me to believe that anybody who doesn’t agree with me is an awful human being. I really think we need to think and rededicate ourselves to active citizenship. That means actually getting off your phone, getting out there, talking to people, canvassing with people, frankly disagreeing with people in person where it’s much harder to be a flamethrower, much harder to think that everybody on the other side is awful.

There are some awful people out there, and they’re way too many people who have allowed this moment to go unchecked. And I feel the pain and frankly, anger about that as much as everybody else. But allowing that to slip ever more into our phone and not talking to each other, and just assuming that the other side has to be written off.

It’s just very clear where that leads, and that is not a future any of us should wish for.

Juan Ochoa

Yeah, I agree with you when you say that we should be off of our phones. I recently stopped paying so much attention to what’s going on on my phone, and it just seems the world just seems a lot calmer that way. When you have the opportunity to just interact with some of these people who you think you know might not think the same as you, but once you start talking, you kind of start seeing that you guys are on the same page.

Yeah. Or even.

Ekow Yankah

If you’re not, you know, one thing I do. Here’s the trick I use even with people I really, really disagree with, I think of my nicest aunt or family friend who believes that, and that doesn’t mean I disagree with them any less, right? We can have really serious disagreements about religion, about politics, about the role of race in America, about security versus openness.

But when I think about my favorite aunt who thinks certain things that I really don’t believe in, I think about some family fights, I think about convincing them. I think about when it’s time to let the arguments go. But I don’t think they’re horrid human beings with no redeeming qualities. You know, every now and then we meet somebody who we just think is not going to be part of our conversation.

They are so toxic. They are so malevolent. But those are one out of a million. They’re not every single neighbor who disagrees with us. And believe me when I say I have to remind myself of that as much as anybody else, right?

Juan Ochoa

There’s a lot of debate around requiring proof of citizenship or specific IDs to vote. From a legal perspective, how do these requirements change the way a citizen is able to exercise the right to vote again?

Ekow Yankah

What they end up doing is they end up suppressing the votes of lots of people who have the right to vote, while trying hard to take the bizarre and kill the fly that is fake voting. You know, as I’ve said, I’ve negotiated with people to see if they’re compromises that could be made. If we’re going to have these kinds of requirements, then what do we do about making sure that citizens who have the right to vote get IDs in their hands?

And if we’re not willing to do one, then I don’t see why we would suppress so many legal votes. Actually, if you don’t mind, let me tell you a really quick story. So I had the honor of being in Cleveland, actually. So I was in Cleveland the night President Obama got reelected. It was really exciting because we knew Cleveland was, you know, essentially, as Cleveland would go, Cleveland, Columbus, a few other places, so would Ohio.

As Ohio would go, so would the election. And so there was kind of a feeling that you were in the place that was going to elect or not. The president was going to elect the president one way or the other. And I was speaking to the Democratic Party, and I was speaking to the woman who ran the Cleveland elections, and she was a Republican, terrifically professional.

Couldn’t have been more gracious, allowed us to do our jobs while we tried not to interfere with her doing her job. I hope she doesn’t mind me telling the story, but I’ll just say really quickly, just in one spare moment. And believe me, she didn’t have a lot of spare moments that evening. We just got in a conversation about voter IDs, and she told me she’d always been a supporter of voter IDs, and I told her I disagreed.

She said, yeah, I recently changed my mind. I was at a grocery store, she told me, and an older black woman was there to cash a check, but she couldn’t cash a check without the ID, and I’d always said, look, people need IDs for everything, so why wouldn’t we have an ID for voting? And I saw that this older Blackmon really didn’t have an ID and, you know, she didn’t have an ID because she had every incentive in the world to be able to access her check.

And it was only when one of the store managers who knew her very well said, no, no, I know who this is. Let her cash her check that she was able to access her money. This Republican official said it was only then that it really hit me how many people in certain communities, in certain places, just don’t have IDs, and I would never want to stop somebody from voting.

Not everybody’s going to agree with her. Not everybody’s going to agree with me. I was impressed by her thoughtfulness. Frankly, I was impressed by her before we agreed on this. But it is a story that shows you that even the good willed idea that, well, doesn’t everybody have an ID once you’re in the real world and you see how even under the most desperate circumstance where somebody needs this money for groceries, they may not have access to, it should at least give you pause as to why we would put up more barriers to people voting.

Juan Ochoa

This conversation is really interesting and I wish we could continue, but we’ve actually run out of time. What is the one thing that you want our listeners to keep in mind, so they can feel confident that the law is working to safeguard their individual vote?

Ekow Yankah

From my experience in not just Michigan, but in many states across the country, even people who disagree with you, who are working within the election system, are working incredibly hard to make sure that the vote is accurate, and not just because they often are people of great professionalism, but because the system, the infrastructure and the incentives are such that mistakes will be found, brought to light and frankly, embarrassing.

There are so many double and triple checks that mistakes are not going to pass, and the job of election officials up and down the line is to make sure that your vote gets counted. What you need to think about is, given how much work is put into counting your vote accurately, why are some people obsessed with either stopping people who have a legitimate right to vote from voting, or undermining your faith in advance for their own purposes?

Juan Ochoa

Thank you for listening to this episode of Michigan Minds, produced by Michigan News, a division of the university’s office of the Vice President for communications.