How Protecting Voter Safety With Mail-In Ballots Became A Partisan Issue

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. Assuming the pandemic has not ended by Election Day, will you be able to vote by mail? And if not, are you willing to risk your health, maybe your life, by going to the polls in order to exercise your constitutional right to vote, like many people in the Wisconsin primary did last month? My guest Emily Bazelon has written a new article titled "Will Americans Lose Their Right To Vote In The Pandemic?" It's published in this week's edition of The New York Times Magazine. She focuses on many of the financial and political obstacles that are likely to prevent many Americans from voting by mail. She writes, the U.S. prides itself on its democracy in theory, but this year, not necessarily in practice.

Bazelon is a staff writer for The New York Times Magazine, where she writes about legal issues. And she's the Truman Capote Fellow for creative writing and law at Yale Law School. Her latest book, "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration," was just published in paperback. It won the 2020 LA Times Book Prize in the current interest category.

Emily Bazelon, welcome back to FRESH AIR. It's a pleasure to have you back on the show. How are you? Before we get started, just reassure me everything's well, that you're OK.

EMILY BAZELON: Yeah. Thank you for asking. I'm fine. I'm with my family in New Haven. My children are slightly up and down as they deal with some uncertainty about the summer and going back to school. But honestly, given all the things happening in the world, I am not complaining.

GROSS: So let's look briefly at what happened in Wisconsin on April 7 during their primary, when people, you know, literally risked their health, maybe their lives, to go to the polls and vote. A lot of people probably would have voted by mail if given the option. But there were a lot of things that went wrong with that, that prevented people from voting by mail. Can you give us, like, one or two examples of things that prevented people from voting by mail in Wisconsin, and that are examples of things that we might face on Election Day in November?

BAZELON: Yes. This is a long tale of woe. But I will just pick a couple of pieces of it. So one thing that happened is Wisconsin has divided government. They have a Democratic governor and a Republican-controlled legislature. And the governor and the legislature couldn't agree on postponing the day of the election or on mailing everybody an absentee ballot who is a registered voter. The governor wanted to do that. The Republican legislature said, no. Then a second thing that went wrong was there was a court challenge in which a federal judge had ordered an extension of six days for people to return their absentee ballots.

And the idea here was that election officials were just swamped. There were tens of thousands of more people asking for absentee ballots - really, hundreds of thousands more - than they'd ever seen before. And they had a big backlog. When this court challenge got to the United States Supreme Court the day before the election, the Supreme Court said, no, you can't have extra time. You only can have your absentee ballot counted if it's postmarked the day of the election. And so what happened because of that was that thousands of people who'd gotten instructions that they had six extra days and followed those instructions, their ballots were not actually counted.

GROSS: So did everything break down on party lines, with Democrats wanting more access to mail-in ballots and Republicans, both in the judiciary system and in the legislature, saying, no?

BAZELON: Yes. Unfortunately, that is exactly what happened. And this is really a running theme in my story and a fear about November, which is that this question of exercising one's right to vote, this very basic principle of enfranchisement, has become polarized. And so you see Democrats looking for more funding from Congress, more access to mail-in voting. And you see some Republicans saying, no.

Now, I should say that in the states - in states like Ohio and Iowa and New Hampshire, Republican officials have come forward and supported expanded vote by mail. But what you see in Washington, in particular, are a lot of Republicans trying to shut the door.

GROSS: In Wisconsin, where a lot of people showed up at the polls, risking their health because they couldn't vote by mail, there were fewer polling places. And that added to the lines. This was especially true in Milwaukee. And one of the reasons why was that a lot of the poll workers are old enough to be in the high-risk category. And they didn't want to take the chance of exposing themselves to the virus.

So give us a sense of how this played out in Milwaukee and the state in general - in the state of Wisconsin in general - and if this is the kind of problem we might be looking at in November, where there isn't sufficient opportunity for a mail-in ballots.

BAZELON: Yeah. This was a huge problem, especially in Milwaukee where there are only five out of 180 polling places that are usually open in the city. And in Green Bay, only two out of 31 opened. And people actually stood in line until midnight. The cause of this was that, as you were saying, it turns out that retirees are really a backbone of election staff on Election Day. And for good reason, they were nervous about staffing the polls.

GROSS: Since the election is likely to be decided in the swing states, how many of the swing states have easy access to mail-in ballots on a broad level, you know, on a big level? Because there might be easy access, but the states aren't prepared to process a lot of ballots.

BAZELON: Yeah. Well, let's take a bunch of swing states - Wisconsin, Michigan, Pennsylvania, Florida, North Carolina and Arizona. Of those six, only Arizona is a place where a lot of people have voted by mail in the past. In Arizona, it was 79% of people voting by mail in 2018. In Florida and Michigan, it was 25 to 30%, so that's like a kind of middling range. But then in Wisconsin, Pennsylvania and North Carolina, very few voters have voted by mail before in a general election. We're talking about a range of three to 6%.

And so when you think about that very low percentage, which is actually true for a total of 27 states in the country - right? So you have 27 states where fewer than 10% of people have ever voted by mail before. Even if you have the legal right to do it, that's just a giant, giant task for your state election officials to pull off. And the clock is ticking. We only have six months to go.

GROSS: Yeah. It seems like, oh, it's the easiest, cheapest thing, you know? You just mail it in. But there's all these behind-the-scenes expenses when you're doing mail-in ballots on a massive level. Can you describe what some of those expenses are?

BAZELON: Yeah, absolutely. I learned a lot about things like high-speed scanners to count votes and tabulate them for reporting this piece. You need to buy secure drop-off boxes so that people who don't have stamps can easily return their ballots. And most of all, you have to sign a contract with the vendor that makes the ballots and the envelopes.

And in order for them to be able to vastly increase their volume - because we'll be talking about tens and tens of millions, new ballots and envelopes. Those vendors need time to order expensive machinery. So there's this whole supply chain issue here, which is a lot like some of the other supply chain challenges the country has faced in responding to COVID-19.

GROSS: And a lot of the states can't afford the cost. They might have had a hard time anyways. But states are really suffering, like so many people are suffering financially, because of the pandemic. So they - the states need to step up because of the pandemic, but they don't have the money to do it.

BAZELON: That's right. The states are under a lot of pressure to make these changes. These are expensive changes to make. In the long run, voting by mail can save money, but not when you have to make this big switch to your system. So one example I found was, in Michigan, they've received $11 million for all election expenses from Congress. There has been a little bit of funding so far. That's all election expenses related to the pandemic. They've already calculated that it would cost them $40 million just to supply mailing costs for November and then another special election they have in August. So you can just see here that the costs are much greater than the resources the states have on hand.

GROSS: How many states have universal vote by mail now?

BAZELON: There are five states that currently have universal vote by mail. And what that term means is that all registered voters receive an absentee ballot. They can return it through a secure drop box or in another - to a polling site, but they get it through the mail. And the five states that currently have that rule are Utah, Oregon, Washington, Colorado and Hawaii.

GROSS: So what can we learn from them?

BAZELON: Well (laughter), we can learn how to do it. And the secretaries of state, the chief election officials in the states, have been giving lots of advice to other states - you know, you need to place your orders now, and let's talk about how we check the signatures on these ballots and how we tabulate and count them. But another thing, a kind of cautionary note some of these election officials sound in the vote-by-mail states is that it took them years to get it right. They had the luxury of being able to roll out this switch over several different election cycles. And so some of them are really nervous about the prospect of this huge sudden shift to vote by mail for one election.

GROSS: Let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is Emily Bazelon. And her article "Will Americans Lose Their Right To Vote In The Pandemic?" is in the current issue of The New York Times Magazine, where she's a staff writer. We'll talk more after we take a short break. This is FRESH AIR.

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GROSS: This is FRESH AIR. Let's get back to my interview with Emily Bazelon. Her new article "Will Americans Lose Their Right To Vote In The Pandemic?" is published in The New York Times Magazine, where she's a staff writer.

The Brennan Center for Justice estimates that the pandemic-associated costs of properly running the 2020 elections, including primaries, would be $4 billion. And so far, Congress has promised $400 million, as opposed, again, to $4 billion. Democrats are pushing for more money. Republicans, you say, are blocking their bills. Why is this a partisan fight? Why are Republicans blocking more money for making changes to the election system so that people can vote without exposing themselves to the virus? Why are Republicans also opposing, like, voting by mail during a pandemic?

BAZELON: Well, this is a great question because it seems like a kind of commonsense solution, and there are some Republicans who recognize that and have said that in states like New Hampshire and Ohio.

In addition, I should note that, in the past, voting by mail has not given a partisan benefit to either party. But what it does do is increase turnout. And so what you see in some of the remarks President Trump has made in opposing more funding and really railing and ranting against vote by mail, President Trump said that the Democrats' proposal, quote, "had things, levels of voting that if you ever agreed to it, you'd never have a Republican elected in this country again." Now, that's like saying the quiet part out loud because usually a party doesn't say if more people participate, we're going to lose. But that's what Trump is saying here.

And this is part of a long tradition among conservatives and Republicans of doing things that have the effect of suppressing participation in elections. So I'm talking about voter identification laws at the polls. Republicans in some states have moved to roll back early voting or same-day registration. And so what you see here, I think from the evidence, is assumption on the part of Republicans that it's better if fewer people participate.

GROSS: And I should say the comment that you referred to that Trump made - this was not at a closed-door meeting. This was on "Fox & Friends" on Fox News.

BAZELON: Yes, this was very much on television. Trump has shifted to the kind of standard justification for reducing participation, for making moves that reduce participation, which is to talk about preventing fraud. But before he shifted, he made that remark on television about being nervous on behalf of Republicans if more people vote.

GROSS: Do you know if Trump thinks that he benefited from a decreased turnout in 2016?

BAZELON: I'm not sure he's talked about that directly, but it is certainly true. There was a decline in voting in some key Democratic strongholds, in cities like Detroit and Milwaukee and Philadelphia, from the historic rise in voting that helped lift Barack Obama into office. And because Trump won those states - Michigan, Pennsylvania, Wisconsin - by very, very small numbers, that decline in voting was one of the factors that contributed to his victory.

GROSS: How much has voter fraud actually been a problem in vote by mail?

BAZELON: It's unusual, but it has happened. And, you know, when you think about it, it sort of makes sense. It's really, really hard to sway an election by having people show up at the polls and vote twice. Like, the numbers of people are just so tiny. But in theory, if you collected bags of absentee ballots, you could try to swing an election. Note this doesn't happen very often. And I should say, in the states that have universal vote by mail, they have a very clean history and a good track record, and they know how to do this securely.

But there have been instances of absentee ballot fraud. And the most prominent one is among Republicans in 2018 in North Carolina. There was a congressional race where the bipartisan state election board threw out the results because of absentee ballot fraud.

GROSS: In February the Trump campaign and the Republican National Committee announced that they'd spend $10 million on litigation and election monitoring in the 2020 cycle. And soon after that announcement, legal attacks on expanding voting by mail began. So is the Trump campaign using a lot of its election money to try to limit voting by mail, even though we're in the middle of a pandemic?

BAZELON: Well, we do see these lawsuits. So, for example, the Republican Party in New Mexico is suing to prevent a vote by mail shift for the June primary. And there is a conservative group called True the Vote that tried to stop Nevada from conducting an all-mail primary. That effort was not successful so far at least. A federal court rejected that True the Vote lawsuit. But you do see on the part of Republican officials in a couple of states, in particular Texas and Georgia, efforts to warn voters about voting by mail.

So the attorney general in Texas said that the law there that requires an excuse, like you have to be sick to get an absentee ballot, he said, well, if you tell someone that they can get a mail-in ballot because of the threat of contracting COVID, you could face criminal sanctions. And that's the kind of move the voting rights advocates say, hey; wait a second. You're trying to intimidate voters out of exercising their right.

GROSS: And you write that the new secretary of state in Georgia raised the specter of fraud by announcing a new absentee ballot fraud task force for 2020, and 9 of the 12 members on this task force are Republicans.

BAZELON: Right. So from the point of view of voting rights groups in Georgia, that also looks like an intimidation tactic because one of the things that the secretary of state in Georgia said when he set up that task force is, we're going to investigate every mismatched signature, as if there aren't innocent reasons why someone's signature wouldn't match the ballot from the signature that a state has on file for them.

GROSS: Well, this leads to an issue that you're very concerned about - I know a lot of people in the election world are very concerned about this - in mail-in ballots. If there's any contesting of the ballots, signatures will be compared, or maybe they're just compared as routine, and a lot of people's signatures change over time. So it's a question - there's several questions here. Like, who's analyzing the handwriting? And also, what's on record? Because if it's on record from a signature from, like, 25 years ago, I mean, chances are your signature has changed a little bit since then.

BAZELON: Yeah. So this whole business of verifying signatures is a rabbit hole that I went down for this piece. And I have significant concerns that this could turn into the hanging chads of the 2020 election if the election is close. The hanging chads, of course, come from 2000, when the Florida election that George Bush eventually won over Al Gore - this question of how you punch out the holes in the ballots and these little hanging pieces of paper seemed to have a huge impact on the results of the election in Florida.

So signature verification, there are best practices for it. In a lot of states, though, that don't have really strong vote-by-mail traditions, there isn't one uniform practice or even a way of training poll workers. And so you could worry about a lot of disparity in how signatures are verified. And one basic thing is whether the state has a law that requires voters to be notified in advance if there's a problem with their signature so they can come in and fix it. That's called signature curing. Not every state has that. So Pennsylvania and Michigan, for example, legally speaking, don't require notice if you have a problem with your signatures. And there are just these questions about whether people are going to face disparities in the rejection rates.

GROSS: Is signature verification an issue for every mail-in ballot or is it only when a ballot is contested?

BAZELON: What happens in a lot of states is somebody reviews every signature. So there's human review. Other states, that happens by machine. Then if a signature gets flagged, what the best practice is for it to kind of go up the line to a higher level, a professional view, people who have more training. And then ideally, what you want is for a public vetting of any disputed ballots by a local canvassing board. So they would sit there, like, on - they could be televised or there can be other reporters there watching them as they decide which ballots to reject. And that kind of transparency can really help with reassuring the public that people aren't having their ballots rejected because they're from one party or the other.

GROSS: And there's a possibility, like, your ballot would be - if there isn't transparency, that your ballot would be rejected and you wouldn't even know it.

BAZELON: That's right. And, you know, the difference between having a rejection rate in a state of, say, 1% or 2% or 3%, that sounds small. But in a big election, that's thousands of votes. And so that can easily determine the outcome. There's a lot at stake here.

GROSS: So do you think for a lot of people, their vote would be more secure if they actually went to the polls rather than voting by mail? Is that something people should be thinking about?

BAZELON: Well, I think the main thing to think about is that if you want to vote by mail, just follow the instructions really carefully. So you have to sign the ballot. You have to date it properly. Make sure whatever other information they have about you is accurate. And often the ballot comes with this certified envelope that you have to return the ballot in, and you have to sign the envelope. So I think that you can vote by mail successfully. You just have to think about every step of the way, especially if this is something you've never done before.

GROSS: OK, let's take another break here, and then we'll talk some more. If you're just joining us, my guest is Emily Bazelon. Her article "Will Americans Lose Their Right To Vote In The Pandemic?" is published in this week's New York Times Magazine. We'll talk more after we take a short break. I'm Terry Gross, and this is FRESH AIR.

(SOUNDBITE OF MARCUS SHELBY ORCHESTRA'S "REMEMBER ROCKEFELLER AT ATTICA")

GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with Emily Bazelon about her new article "Will Americans Lose The Right To Vote In The Pandemic?" It's published in the latest issue of The New York Times Magazine. The safest way to vote will be by mail. Bazelon focuses on some of the financial and political obstacles that are standing in the way in many states. She's a staff writer for the magazine, focusing on legal issues. She's also the Truman Capote Fellow for creative writing and law at Yale Law School.

You write that now officials could use the virus as an excuse to shut the polls selectively to the benefit of their party. Explain how that could happen.

BAZELON: Yeah. This is a kind of nightmare scenario for democracy. But imagine a world in which there is an outbreak in a particular city, Las Vegas or San Francisco or a city in a swing state, like Philadelphia. What if election officials, especially in a state that's controlled by the party that stands to benefit from this, shut down the polls in that city at the last minute? They could say it was a public health emergency. But that's the kind of move that could have a determinative effect on the outcome. And so that seems like something that would be very bad for just our basic right to vote.

GROSS: Is there any way of preventing that from happening?

BAZELON: Well, the political pressure on state officials to make sure that they are being upstanding in how they make sure people have access is a really important protection. And this is also where voting by mail becomes so important because the stronger the system that a state has for that, the less threat to enfranchisement from closing polling places. That said, I want to make clear, we can't just rely on vote by mail for this election. There are a lot of people in this country who don't have stable mailing addresses. And that's a particular issue at a time of economic downturn like the one we have.

The more people are moving around because they, you know, can't pay their rent or they move - need to move in with family, the more you need to be able to show up at your polling place. And then another issue is people with disabilities. There are people with disabilities like blindness who need assistance at the polls to vote. So we need to make sure that we don't make the mistake of solely relying on vote by mail in this election.

GROSS: As you mentioned - I live in Philadelphia. That's where FRESH AIR is produced. And of course, Philadelphia is in Pennsylvania. And as you point out, June 2, the day of the postponed primary, will be the first test of whether large numbers of people can successfully vote by mail, because it was just last year that the state legislature passed a law that provides absentee ballots without an excuse.

You used to have to explain why you couldn't physically go to the polls. You no longer need to do that. And in one week, Pennsylvania got 160,000 applications for mail-in ballots versus 19,000 in the same period in 2016. So we'll see if the state is equipped to deal with the huge numbers that they're going to be getting compared to the numbers they've gotten in the past.

BAZELON: Yeah. So one of the interesting phone calls I had in reporting this piece - I called Richard Gebbie, who runs a company that can do the kind of bulk mailing that election officials need. And he said he'd been calling around to counties in Pennsylvania to say, hey - looks like you could have a big increase demand in absentee ballots. Are you looking for a vendor to make sure you can produce everything in time?

And he said only one county, Mercer, said, yeah. Can you send us a quote? Everyone else said, can you call us back in a month? And the problem for people like Richard Gebbie is that the longer you wait as a company to get those orders, well, then you might not have time to order the machines that you need to fulfill the orders. And so I think, states that are looking at a huge increase in volume - and cities and counties because in the end, this comes down to local officials - it's a real mistake to wait to start setting up all these systems.

GROSS: Are there ways that we can make it easier, with just a few months left before the election, for people to vote by mail and to be confident that their votes will count?

BAZELON: I mean, I think, honestly, the most important thing is for Congress to fund the states. And that's a tricky thing for me to say as a journalist because that's become a partisan issue. But when you just look at the logistics, like, what's it going to take to really properly prepare for this election? The states need the money to do it. And the states are going broke right now dealing with the pandemic.

So there is just this way in which releasing the funds, giving the states the money they need so that they can place the orders that they need to place now, confident that they can pay for them, that would actually just be a huge lift for running the election properly. And as I said, there are Republican officials who recognize this. A lot of the Republican secretaries of state, who actually have responsibility for running the elections, they are in favor of this additional funding.

GROSS: So several states have decided that they're going to do mail-in ballots for everybody. Like, if you're registered, you will get a mail-in ballot. So what states recently decided that they would do that?

BAZELON: Well, my home state of Connecticut, the secretary of state just said, yes. We're going to mail every registered voter a mail-in ballot for November. There is talk of doing that in Massachusetts. The legislature is pursuing that possibility. And Governor Cuomo has mentioned that idea in New York. So what you're seeing here is a kind of move among some states. Another one is New Hampshire, where the governor has talked about doing this - a recognition that mail-in ballots are just going to be a much easier way to go.

And, you know, one additional point to make is, even if you still think it's important to have the polls open, you reduce the burden on the polling places. There are fewer people there. And so if voters know, OK, lots and lots of people have requested absentee ballots, they can be assured that the polling places won't be as crowded, which, of course, helps with safety and social distancing in light of COVID-19.

GROSS: My guest is Emily Bazelon, a staff writer for The New York Times Magazine. Her new article is titled "Will Americans Lose Their Right To Vote In The Pandemic?" Shortly after we recorded the interview, California Governor Gavin Newsom issued an executive order in response to the coronavirus, saying every registered voter in that state will automatically be sent a mail-in ballot for the November election. After a break, we'll talk about how the post office's financial crisis might affect mail-in ballots. This is FRESH AIR.

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GROSS: This is FRESH AIR, and if you're just joining us, my guest is Emily Bazelon. We're talking about her new article in The New York Times Magazine, which is called, "Will Americans Lose Their Right To Vote In The Pandemic?" You know, a lot of the article is about the expansion of mail-in ballots for this election during the pandemic, and the political opposition and the financial obstacles that may prevent it from happening on as massive a scale as it could.

So, Emily, you know, we were talking about expanding voting by mail. But if the states are going to expand vote by mail, they'll be relying on the U.S. Postal Service, which is projecting a $13 billion shortfall by the end of their fiscal year in September. The Postal Service and the Treasury Department have been negotiating over a $10 billion line of credit that's part of the coronavirus relief package. But President Trump has threatened to block future funding unless the postal service meets his demands. Meanwhile, a new postmaster general was just named who's a major Republican donor and a Trump donor and ally. So what is Trump demanding of the Postal Service?

BAZELON: Trump has been having a feud with the postal service for a while now. He is demanding that they raise their rates for packages. And according to administration officials - this has been reported by major news outlets - Trump is especially taking aim at Amazon, which is owned by Jeff Bezos. Bezos is also the owner of The Washington Post. So according to reports in various newspapers, when Trump gets angry about a Washington Post article about his administration that he doesn't like, he starts to get mad at the idea that the post office, in his view, is not charging Amazon enough money to deliver its packages. That's the kind of core complaint here.

GROSS: So are there problems that the post office is having or might have that could prevent it from delivering and returning mail-in ballots for the November election?

BAZELON: Well, the post office is warning they're going to run out of money by the end of September if they don't get some help from the federal government. And yes, in an election that depends heavily on mail-in ballots, the post office becomes a kind of de facto election administrator. So threatening its operations this fall in this crucial time does pose a kind of threat of its own to the election.

GROSS: President Trump has been very suspicious of mail-in ballots. He's talked about the possibility of fraud. He's also talked about how it would be bad for Republicans. So knowing that he is not a fan of mail-in ballots and that he thinks it might work against him or against his party, is, like, withholding funding possibly a way for him to make it less possible or less easy to go to a more widespread use of mail-in ballots? Could this be, like, a political tool?

BAZELON: I mean, I think it would have that effect whether or not he's thinking about it that way. To sort of close the loop about the post office's charges for packages, the post office actually runs a profit on its package delivery service. That's not the financial problem that the post office has. The post office also points out, as do lots of other people, that if they have a huge rate hike - I mean, Trump has asked them to double or even quadruple their rates for packages.

Well, if that happens, the post office will lose a lot of business to UPS, to FedEx and even to Amazon's own package delivery services. So there's a kind of problem with the market here that Trump does not seem to see.

GROSS: Since the end of the fiscal year in September is so close to the November election, and if Trump follows through on his threat to withhold funding, the post office would be hard hit just before the election, just before the expansion of mail-in balloting because of the pandemic. Are there any legal restrictions that you're aware of in threatening to stop funding the post office just a few weeks before a presidential election?

BAZELON: That's a great question. The Constitution says that Congress can establish a postal service. But it doesn't say it must. And so the postal service is, basically, a voluntary organization that the government performs. It's a kind of quasi-governmental entity that relies on fees rather than taxes. I'm not really sure what legal protection we would have if it went under even in a precipitous way before the election.

You know, it is also important to point out how much rural communities in particular, which have supported President Trump in the past election, would suffer without the post office. Those are the parts of the country where the post office is often the only provider of mail services and package delivery. And we're also talking about the most popular federal agency we have. The post office has a 90% favorability rating among Americans. So the politics of this are odd from the point of view of thinking about Trump's appeal to his supporters and to the American electorate in general.

GROSS: What do we know about Louis DeJoy, who is the new postmaster general, who's expected to actually take office in mid-June?

BAZELON: He's a big donor to the Trump campaign and to other Republican causes. He gave more than 2 million to the Trump campaign and other Republican causes since 2016. He's the owner of a real estate and consulting firm in North Carolina. And he doesn't have any experience in postal services.

That would be a big shift. For the past 20 years, the postmaster general has been someone who came up through the ranks at the post office. And for comparison, the current postmaster general who is leaving, Megan Brennan, she started 32 years ago as a letter carrier. So this is a different kind of appointee, someone who is a Trump ally, but who does not have experience as a career professional running this agency.

GROSS: So this throws just a level of uncertainty surrounding mail-in voting. I mean, there's so much uncertainty. Who knows? And to have this added as more uncertainty right before a really critical presidential election during a pandemic - I don't know.

BAZELON: You're right about creating a great deal of uncertainty. There's another way to think about this, which is that it's a bargaining chip in the negotiations over money, over funding from Congress. We've had this dynamic in the last couple of months where it's Democrats who are trying to protect essential services, parts of the government - this includes the election funding we were talking earlier - and Republicans who have been resisting. And so sometimes, you know, when you take an unreasonable position at the beginning of negotiations, you force the other side to rush in and say, wait. Wait. We need that. And then something that should be kind of obvious becomes a concession that you're making to the other side. And I wonder if that is also informing the dynamic that we're seeing here with the post office.

GROSS: The Postal Service is in financial trouble in part because of competition from private companies, like UPS and FedEx. But isn't the post office supposed to be a kind of public service. And even if it loses money, isn't it still a public service? Like, is its value measured by whether it's in debt or makes a profit?

BAZELON: Well, I think one of the things that's important that you're getting at is that the Postal Service has a responsibility to operate in every single corner of the country. UPS and FedEx don't have to have storefronts open in tiny communities where there's less business. We do expect that from the post office.

And the other important thing to understand about its finances is that, in 2006, Congress imposed a responsibility for the post office to fund in advance all of its pensions for 75 years to come. No other government agency has anything like that. You look at the Pentagon. They have pay-to-go for their pension funds, not some idea that very far into the future they have to be guaranteed. If you took out that additional burden on the finances of the Postal Service, they would not be operating at a loss. In other words, their annual operating budget and performance is fine. It's this additional pension burden that they're saddled with that helps explain why they're in so much trouble.

And the other thing is right now, this year, they are facing this $13 billion shortfall in large part because of the pandemic. Even though people are relying on them for home delivery, overall, mail service is down by about 30%

GROSS: Let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is Emily Bazelon. Her article "Will Americans Lose Their Right To Vote In The Pandemic?" is in the current issue of The New York Times Magazine, where she's a staff writer. We'll talk more after we take a short break. This is FRESH AIR.

(SOUNDBITE OF BEYONCE AND JAY-Z SONG, "BONNIE AND CLYDE 2003")

GROSS: This is FRESH AIR. Let's get back to my interview with Emily Bazelon. Her new article "Will Americans Lose Their Right To Vote In The Pandemic?" is published in The New York Times Magazine, where she's a staff writer.

So, you know, you've talked about a few things that can really go wrong. What are some of your nightmare scenarios that could play out during the pandemic on Election Day?

BAZELON: Well, my real nightmare scenario - and I want to say, I do think this is unlikely - but the Constitution actually still gives legislatures, lawmakers the power to pick the electors who cast the votes in the Electoral College. Those are the people who actually choose the president. The - every state legislature gave this power to the voters in the 19th century. And so that's why when we cast a vote for president, technically, what we're doing is electing our representatives to the Electoral College who then pick the president on behalf of the state.

If the legislature tried to take that power back - for example, they said, well, the pandemic is too big a threat - we can't figure out how to have everybody vote - we, the legislature, are going to pick the electors, that would be just a terrible transgression of American democracy. But there's nothing in the Constitution that prevents it. So when I'm really thinking nightmare scenario, that's where I go.

GROSS: That's (laughter) a pretty nightmare scenario. What would it take for that to happen?

BAZELON: I mean, it would just take a state legislature trying to test the boundaries of its constitutional power, honestly.

GROSS: You're concerned that warning in advance about, like, the specter of voter fraud, especially in mail-in ballots, can be a real problem. It - like the way the president has been warning about that. What do you see as the problem that his warnings might ultimately create?

BAZELON: When you start, as a politician, talking about an election with a lot of distrust and you're kind of talking about chaos and disorder and you make it sound like something's going to go wrong, you're really sowing the seeds for your supporters to see the results as illegitimate if you don't win. And that is disastrous for democracy. I mean, we see that in authoritarian countries, where rulers refuse to give up power.

We have a very polarized electorate in this election. More than for many years, Republicans and Democrats are really divided in how they see trust of the government in the media sources they pay attention to. And so when you see one politician breeding this kind of distrust, you can really worry about the outcome in terms of whether people will trust that the election was done properly and was fair and, ultimately, was legitimate.

GROSS: So the Voting Rights Act was gutted in 2013. The act used to make states with a history of voter suppression - if you made a change in your voting system, you had to get it approved first. And now that the Voting Rights Act was gutted, the states can do what they want. They don't have to get approval first. How do you think the gutting of the Voting Rights Act is affecting what the plans are for 2020?

BAZELON: Well, one really important effect of the Supreme Court's decision to effectively gut this key part of the Voting Rights Act is that states can close polling places. And so what we've seen since 2013 is more than 1,600 polling places around the country have been closed. Often, we see a particular interest in closing those polling places in cities, parts of the country that have more African American voters, especially in the South. So that's a real concern. Again, it's important that people have some polling places that they can go to if they can't easily access vote by mail. And closing polling places has a real effect on voter participation.

GROSS: Do you think it's too late for us to have an organized election that we can really be confident about assuming that the pandemic continues during November?

BAZELON: No, I don't think it's too late. And I'm glad you asked that because I don't want to convey that impression at all. I think we need to address this with urgency in the coming months. We cannot wait and try to play catch-up in the fall the way we did with the pandemic to begin with. But if we start paying attention, if the states have the resources they need, if local election officials properly plan for this election, it is absolutely within our power to have a well-run, organized election in November.

GROSS: So finally, you are the Truman Capote fellow for creative writing and law at Yale Law School. Yale Law School, like most colleges now, is closed. What does that mean for you as a fellow?

BAZELON: Well, Yale Law School finished its semester online. I was not actually teaching this semester. So I was more watching my colleagues and other people who teach at Yale figure out how to do all their classes on Zoom, try to make sure that they were available for students. I think it's just been a really hard semester, generally, for colleges and universities.

The biggest burden has really been on the students. And I think that COVID has revealed a lot of inequality because students who go home then have to deal with their home environments as they're trying to study. And, you know, it's really different to be in a pretty affluent, comfortable environment versus going back to a home where maybe you don't have a lot of access to the Internet or it's harder to have quiet when you need to do your work. So I think that's just been a real challenge this semester that a lot of students have been struggling with.

GROSS: It makes me so sad, too, because in addition to the academic part of college, there's a very profound social part of it. And, like, that is just being denied now to students.

BAZELON: Yes. I have a son who's a sophomore in college, and he has been very sad about losing that part of his education, and it really is a part of his education. We've created residential colleges because we can see what a benefit it is for students to learn from each other about all kinds of things on and off the curriculum. And so I think for a lot of students, this has just been a real sad loss.

GROSS: Well, Emily Bazelon, please stay well. I wish you and your family good health. And thank you for your reporting.

BAZELON: Thank you so much. Thank you so much for having me. And I wish you back the same, Terry.

GROSS: Emily Bazelon's article "Will Americans Lose Their Right To Vote In The Pandemic?" is in the current issue of The New York Times Magazine, where she's a staff writer. Her latest book "Charged: The New Movement To Transform American Prosecution And End Mass Incarceration" just came out in paperback.

Tomorrow on FRESH AIR, my guest will be Michael Arceneaux, author of the new collection of personal essays "I Don't Want To Die Poor." The title is a reference to the student loan debt that he's still paying off 13 years after graduating from Howard University. His first book, "I Can't Date Jesus: Love, Sex, Family, Race, And Other Reasons I've Put My Faith In Beyonce," was about growing up black, Catholic and gay in Houston. I hope you'll join us.

FRESH AIR's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Sam Briger, Lauren Krenzel, Heidi Saman, Therese Madden, Mooj Zadie, Thea Challoner and Seth Kelley. Our associate producer of digital media is Molly Seavy-Nesper. Roberta Shorrock directs the show. I'm Terry Gross.

Today is our show's 33rd anniversary. We made the transition from a daily local to a daily national show on May 11, 1987. We devoted part of that first broadcast to a concert of songs by Irving Berlin, who turned 99 that day. Yes, he was still alive. So many people who have something they would be celebrating with others - an anniversary, birthday, graduation, wedding, et cetera - are celebrating at home in solitude or semisolitude. But while we quietly celebrate in pajamas, sweatpants or old jeans, we can listen to a great Irving Berlin song about stepping out in elegant clothes. Here's Fred Astaire singing "Top Hat, White Tie And Tails."

(SOUNDBITE OF SONG, "TOP HAT, WHITE TIE AND TAILS")

FRED ASTAIRE: (Singing) I just got an invitation through the mails - your presence requested this evening. It's formal - a top hat, a white tie and tails. Nothing now could take the wind out of my sails because I'm invited to step out this evening with top hat and white tie and tails. Oh, I'm putting on my top hat, tying up a white tie, brushing off my tails. I'm dudin' (ph) up my shirt front, putting in the shirt studs, polishing my nails. I'm stepping out, my dear, to breathe an atmosphere that simply reeks with class. And I trust that you'll excuse my dust when I step on the gas. For I'll be there, putting down my top hat, mussing up the white tie, dancing in my tails. Transcript provided by NPR, Copyright NPR.