Bob Bauer and Ben Ginsberg occupy opposites sides of the political spectrum, but they share a belief in the importance of free and fair elections.
When former President Barack Obama created the Presidential Commission on Election Administration (PCEA) in 2013, he named Bauer and Ginsberg as co-chairs, tasked with recommending ways to improve the voting experience. The former general counsels for the competing presidential campaigns of Obama (Bauer) and Mitt Romney (Ginsberg), the pair have co-authored op-eds that highlight their shared dedication to election integrity, even as their careers have taken parallel but opposing political tracks.
Before he was a lawyer, Ginsberg was a reporter at newspapers on both coasts. He worked for U.S. Representative George E. Brown (D-Calif.) while at Georgetown Law School, then spent eight years as counsel to national Republican organizations. As national counsel to the Bush-Cheney presidential campaign in 2000, Ginsberg played a central role in the Florida recount that put George W. Bush in the White House. Ginsberg reprised that role in 2004 and went on to serve as counsel to Romney for President in 2008 and 2012. He has represented the campaigns and leadership PACs of members of the Senate and House, as well as the national party committees. A popular cable news commentator on election issues, Ginsberg recently retired as a partner at the international law firm Jones Day.
A graduate of Harvard and the University of Virginia School of Law, Bauer became Obama’s White House counsel after serving as general counsel to both his campaigns. He served as counsel to the Democratic leader in President Bill Clinton’s impeachment trial and co-counsel to the New Hampshire State Senate in the trial of Chief Justice David A. Brock. Bauer now teaches at New York University School of Law, where he is Professor of Practice and Distinguished Scholar in Residence and co-director of the university’s Legislative and Regulatory Process Clinic. Bauer has written several books on campaign finance and election law; in 2020, he co-authored “After Trump: Reconstructing the Presidency” with Jack Goldsmith, former assistant attorney general in the George W. Bush administration.
The pair sat down with Wendy Underhill, NCSL’s director of elections and redistricting, to talk about the lessons of the 2020 election and how the past might inform the future of voting.
From 2000 to 2020, more people were voting by absentee or mail ballot with each election. How do you account for the change?
• Ben: Well, I think a pandemic will impact behavior (laughter).
• Bob: There’s that, and something else that Ben and I observed when we were co-chairing the PCEA that shouldn’t be discounted as a huge source of bipartisan agreement on these issues: cultural expectations. Americans are used to convenience for their essential services. They want 24-hour urgent care clinics. They want to be able to have their groceries delivered and file their taxes electronically. And there are Americans whose basic view is, “I don’t know why I have to stand in the rain for seven hours to cast a ballot. Mail me the damn ballot, and I’ll mail it back. Or provide me with two weeks or whatever of early voting. Give me some options.” That was a clear-cut source of bipartisan support for some of the recommendations that we made, like online voter registration and adequate early voting opportunities.
• Ben: This election really busted a number of myths. It was the highest turnout election in our history, and while Republicans lost the White House, they did better than expected in the Senate, they picked up lots of seats in the House of Representatives, they picked up legislative chambers. So Republicans should take away that they actually can do well in high-turnout elections, and Democrats should realize they won states, at least on the presidential level, with some of the strictest voter ID laws: Georgia, Arizona, Wisconsin.
Talk about the differences between 2000 and 2020, the only two presidential elections that brought election administration to the front page of the paper on a daily basis.
• Ben: I think 2000 was an incredibly close election, and it pointed out some flaws. But everybody in it acted in the best interests of the country. But 2020 and the way it was brought to the fore, especially since it was not a particularly close election, really had more to do with Donald Trump and his rhetoric and his charges. I’m not sure that it was the same sort of systemic problems that you saw in 2000.
• Bob: The allegations of partisan overreach in 2000 didn’t go to how the election itself was conducted.
Here you have the battle right at the source, about how the rules are drawn, the role of courts and changing the rules, the role of state executive officials in implementing the rules. And so it is a very different fight. And the particular role that suspicions of partisanship and so forth played is very different in the two cases.
• Ben: Any time you have a 537-vote election (in 2000), you’re going to have lawyers making really strong arguments on both sides that are going to be kind of valid. When you’ve got a 7 million-vote difference, and you’re saying the election is rigged without any evidence, you’re in a completely different sphere and plane.
Is it time for another report like the PCEA’s? Do these reports make change?
• Ben: I think they can help if they’re done right and don’t turn too political. I think that there is one overriding issue that a group or a commission of some sort needs to deal with, which is the fact that 30% of the country and 70% of Republicans don’t believe in the election results.
So if there were to be a commission, there needs to be some way to vent that issue and see if the proof is there or not. And then I think there are a number of laws where it is shown that it would be helpful if there is clarity and some models that states might adapt.
• Bob: I agree—with one exception. I’m not keen on the idea of a commission that’s designed to persuade people who don’t believe that the election of 2020 was lawful or accurate. The moment you set up a commission, it appears that you’re conceding that there’s an argument to be had on this point.
I do agree with Ben that there are other constructive changes hopefully that you could reach on a bipartisan basis, as we tried to do in the PCEA. Whether you can get to that objective or not depends on how carefully you define your task. You’d have to figure out where the middle lies—where the pathway to consensus would be.
This interview has been edited for length and clarity.