AMY GOODMAN: This is Election Day 2012. Let’s go to a comment from a former top adviser to Republican Senator John McCain of Arizona’s 2008 presidential campaign. Appearing on MSNBC on Monday, Steve Schmidt dismissed concerns of ineligible voters casting ballots and said Republican-backed voter ID laws are based on mythology.

STEVE SCHMIDT: Whether you’re a Democrat or Republican, is you want everybody who’s eligible to vote to vote. And that’s how you want to win elections. And so, I think that all of this stuff that has transpired over the last two years is in search of a solution to a problem—voting fraud—that doesn’t really exist when you look deeply at the question. But it’s now part of a—

CHUCK TODD: Have you ever felt like you lost an election on voter fraud?

STEVE SCHMIDT: It’s part of the—part of the mythology now in the Republican Party that there’s widespread voter fraud all across the country. In fact, there’s not. But both sides are lawyered up to the nth degree, and they’ll all posture back and forth on it, but it probably won’t come down to the lawyers.

AMY GOODMAN: Again, that’s Steve Schmidt, who was the senior adviser to Senator John McCain when he was running for president.

Again, we are joined by Myrna Pérez. She is senior counsel at the Brennan Center in the Democracy Program at New York University School of Law. And we’re also joined by Brentin Mock. Brentin Mock is the lead reporter for Voting Rights Watch 2012, which is a collaboration between The Nation magazine and Colorlines.com.

Myrna Pérez, Steve Schmidt’s comment. He is a top Republican strategist, though I’m beginning to wonder if he’s going to switch his party affiliation, listening to him these days.

MYRNA PÉREZ: It’s certainly the case that there is no dispute that our election system needs to be free and fair and full of integrity. The dispute is over what means people are going to take in order to ensure that and how many people are going to be disenfranchised in the process. And the evidence documents that the kinds of restrictive laws that are being passed do not do anything to make—or do very little, if anything at all, to make our elections more secure. But what they do do is make it very difficult for eligible Americans to participate and to vote.

And the question that we, as Americans, have to ask ourselves is, how many barriers are we going to put in front of the ballot box between eligible Americans and their fundamental right? And we need to make sure that we are not the victims of manipulation by partisans who want to rig the rules of the game such that they can be making the decisions as to who gets to participate and who doesn’t.

One of the examples that I like to use is the Texas photo identification requirement that is not going to be in place. The list of acceptable ID was created with such like target precision that there was a decision made that if you had a University of Texas ID, you couldn’t use that to vote, but if you had a concealed gun license, you could. That’s a specific kind of targeting of certain voters to make sure that some people have a voice, and those voices that politicians don’t want to hear from—

AMY GOODMAN: But wouldn’t that be struck down by a court immediately?

MYRNA PÉREZ: Well, the court—the court did block the implementation of this, so it’s not going to be in place. But I think the—

AMY GOODMAN: But that’s not striking it down; it’s just delaying implementation.

MYRNA PÉREZ: Right now it cannot be implemented. It was challenged under the Section 5 of the Voting Rights Act, of the preclearance provision. And it had—did not—the state did not meet its burden that it was not going to make minority and poor voters worse off. So that is not a law that people have to worry about in Texas.

But you raise a very, very important point. There was so much back-and-forth of this, right up to the wire, that there’s great confusion in Texas over what the ID requirements are. We’re already getting reports that people during early voting are being asked for identification that is not required. The voter registration cards that the state sends out are misleading and suggest that the photo identification law, this stringent law that is not in place, is actually in place.

And we see examples of like that, of the voter confusion happening in a number of instances, also in Pennsylvania. Even though the law will not be in place, we saw two websites in the county, you know, still have the old information when the law was active. And that’s why it’s really important, when voters are unsure or hear something that does not feel right, they need to call 866-OUR-VOTE, where we have up-to-date information, and we’ll be able to help them out.

AMY GOODMAN: Brentin Mock, let’s go to Virginia. Now, Virginia is going to tell us a lot. Democracy Now! begins our broadcast tonight at 7:00 until 1:00 in the morning. That’s Eastern time. We’ll be broadcasting at democracynow.org online, and many public radio and television stations around the country will be running our election special. Seven o’clock is when we start. Seven o’clock is when the polls in Virginia close. Brentin Mock, talk about what’s happening in Virginia, a key swing state.

BRENTIN MOCK: Right, and Virginia mirrors Florida in a lot of different ways, particularly with its felony disenfranchisement law. You know, Virginia joins Florida as one of the states that permanently—permanently disenfranchises anyone who has a felony conviction in their background. And you—that person has to appeal directly to the governor to have their voting rights restored. Also like Florida, there is up to a five-year wait for you to even be able to apply to have your voting rights restored if you have that felony conviction.

But unlike Florida, Virginia didn’t have a early voting period. So, right now in Florida, which we understand—we already know is a much larger state than Virginia, but Virginia is not Rhode Island, by any means. I mean, there are a lot of people in this state who are going to be lined up to vote today. In fact, they’re probably already there at the polls. And we saw five-, six-, seven-hour line waits during—in Florida during early voting periods there. I can imagine what the lines look like here in Virginia, where there’s been absolutely no early voting.

AMY GOODMAN: Talk about Fairfax County elections board and the man they have spearheading their, well, voting rights laws and how they’re implemented.

BRENTIN MOCK: Right. So, Fairfax County, which is a very important county in this campaign—in this presidential race, so important that Mitt Romney is having his post-election—I hate to call it “party.” He’s going to have his post-election event tonight here in Fairfax County. That’s how important it is to the Republican Party.

AMY GOODMAN: Place it for us geographically in Virginia and why it’s so significant.

BRENTIN MOCK: Right, and—well, I’m sorry, what was the question?

AMY GOODMAN: Place it for us, Fairfax County, within Virginia, geographically, and why it’s so significant.

BRENTIN MOCK: In Virginia, right. I mean, it’s a swing county. For the most part, it’s—you know, how Fairfax goes is basically how Virginia will go. And Virginia itself is a swing state. It was important to Obama winning the election in 2008. And Romney, basically, for him to be able to win this year, he’s going to need Virginia and—but, you know, Fairfax is really going to be the weathervane of how Virginia goes.

And here in the election board, the Board of Elections, sits Hans von Spakovsky, who is—who has been the architect of a number of different voter suppression laws. He is a research fellow at the Heritage Foundation, which is a conservative think tank. [inaudible] He’s a huge proponent of voter ID laws. He’s been a huge promoter of the purging programs that we saw happening in Florida with Governor Rick Scott. In fact, Talking Points Memo reported earlier this year that when Governor Scott was being—Florida’s Governor Rick Scott was being sued because of his purging program, that he began to call on people to help really promote this, to really spin it in the media to make it sound like the purging was a good thing. And one of the—excuse me, one of the main people that he called was Hans von Spakovsky. And so, now Hans von Spakovsky is sitting in the Fairfax County Board of Elections with a huge amount of discretion over which votes will be counted and which will not.

AMY GOODMAN: And his significance, why he should have so much power?

BRENTIN MOCK: I don’t think he should. I mean, I think, you know, a lot of very smart election law experts believe that, you know, these kinds of election boards should be taken out of partisan hands and put into completely independent, nonpartisan, you know, operators.

But right now, we know for a fact that Hans von Spakovsky is by no means a nonpartisan person. He is a very conservative blogger who works with one of the most conservative organizations out there, with the Heritage Foundation. He’s one of the top advisers to True the Vote—one of their most trusted advisers, actually. And he has shared the stage, you know, not only with True the Vote’s founder, Catherine Engelbrecht, but also with some of the secretaries of states in some of the other battleground states throughout—throughout the nation, such as Colorado’s Secretary of State Scott Gessler. He shared plenty of thoughts and ideas on stage with South Carolina’s attorney general when they were fighting against the Department of Justice to have their voter ID law implemented. I mean, this is a person who, at least for the last 20, 30 years, has done everything in his power to try to restrict voting rights for citizens.

And Jane Mayer in The New Yorker wrote an excellent profile of Hans von Spakovsky to really detail not only the pure partisanship that he engages in, but also the drumming up of the voter-fraud mythology. He has been one of the main trumpeters of this idea that voter fraud exists. And, you know, she categorically debunked basically every single example that he provided where he tried to say that voter fraud had helped swing an elections.

AMY GOODMAN: Myrna Pérez, can you talk about what’s happening in New York and New Jersey? We have this crisis, Superstorm Sandy. In New York, 40,000 residents are displaced. Governor Chris Christie in New Jersey is saying that people will be able to email in their votes. Governor Cuomo has just issued an executive order you can vote anywhere, but that means you can’t vote down ballot. And you can explain what that means. You can vote for president, but not if, you know—if the place you’re going to vote has a state senator you would want to vote for, whatever, where you were living, you can’t then vote in someone else’s district for the state senator there.

MYRNA PÉREZ: Right. Well, I mean, I think there are a couple of takeaways. One is, this was an extraordinary circumstance. We had a terrible, terrible storm. Many people were displaced. Many rescue workers can’t be where they’re supposed to be, because they were trying to keep people safe and to put lights on and to make sure that people were found and have the basic necessities. And we saw two governors take creative and unusual measures to try and make sure that people’s fundamental right to vote could still be exercised.

In New York, the governor made it such that certain—certain counties and people, that live in certain areas that were federally declared to be emergency zones, could vote by affidavit ballot anywhere they were at. And, yes, it is the case that they will not be able to vote for what sometimes people call “down-ticket races,” and that’s a very practical reason. The ballots are—the ballots are created for the location that they’re at. And I think while there may be some lacking to that, what we do need to take away is that somebody was trying to account for the very unique situation that we’re in and trying to provide a means for voters to be able to participate and to not be shut out.

Now, in New Jersey, they did two things. One of them is getting more press than the other. One of them is the email. That is a—that is something that, in my view, is something that we shouldn’t look at right now as a long-term solution, because there are still technological kinks that need to get locked out, and as—worked out. And as a practical matter, if you don’t have power or you don’t have electricity, the fact that you can email or fax your ballot in is of cold comfort and not likely to be much good to you. But, like New York, there is a provision for people to be able to vote if they are somewhere else, as long as they’re in the state and as long as they’re registered. It is going to have to be provisional. What I do want to tell—

AMY GOODMAN: I mean, interesting on email is that, I mean, if they’re talking about any long-term solution, like people say, “Oh, why don’t we do that all over?” it goes to issues of privacy. People know who’s voting for who.

MYRNA PÉREZ: And it also goes to issues of technological security, and we need to make sure there’s not glitches in computers and that people can have—I mean, it’s something that certainly reformers and advocates—and some advocates look at as a possibility. But, you know, I don’t think we’re there yet as a permanent solution. Maybe one day the facts will change. But we cannot underestimate the importance, though, of the provisional balloting option, because that will not rely on electricity. It will allow people to vote from—

AMY GOODMAN: And that is?

MYRNA PÉREZ: That is, if they are displaced and they are registered to vote, they can cast a provisional ballot where—where that’s closest to them. And like in New York, it will be counted as an operation of state law.

AMY GOODMAN: What’s interesting in New York and New Jersey is they’re not considered swing states. They’re both believed to be voting for Obama. And if many fewer people vote, it sort of goes to this whole question of the Electoral College, the possibility that President Obama could win the Electoral College, which would mean winning the presidency, but not win the popular vote. And this would further that, that there would be fewer people voting.

MYRNA PÉREZ: Well, I think, as Americans, we should focus less on the horse race than about the voters. I mean, if there are fewer people voting because of a natural disaster, it is appropriate, I think, for the governors to take measures to make sure that more people can vote. And in my view, it doesn’t matter whether or not the elections are close or they’re not. People have a fundamental right to vote. The vote means something to people. Our democracy is more robust, the more people participate. And that’s what these two—these two measures are designed to do, to try and make it such that more people can participate notwithstanding this horrible natural disaster that’s happened.

AMY GOODMAN: Final comments, Brentin, for what people should understand about what’s happening right now? And we hope to have both of you back on tonight at some point during our special broadcast to report on what you’ve found throughout the day.

BRENTIN MOCK: Well, what I would like to do is just, you know, give my highest salute to the voters themselves. Sometimes reporters, such as myself, we’re doing what we’re supposed to do—we’re supposed to report on and expose people who are trying to suppress the vote—but at the same time, voters are not stupid, Americans are not stupid. They are resilient. We have technology at our hands. And people, you know, have been showing in—at these elections, that they are not going to let any obstacles come between them and the vote.

I mean, it’s true, we should not have seven-, eight-hour lines of voting. But the positive thing is that people are actually waiting seven or eight hours to vote, and they’re not letting anything—not True the Vote, not bomb scares, not people not disallowing water to be handed out to them—to stop them from going out to vote. And it’s a true testament not only to the voters, but also to groups like the Brennan Center for Justice, which has been putting out the information proactively and aggressively long before election time came, and also to the Election Protection teams who have been out there willing to help anyone who needed anything. But right now, what we’re seeing is democracy in action.

AMY GOODMAN: Very quickly, Myrna, on immigrants, a final comment for people who are afraid, you know, that they are absolutely allowed to vote, but what if they could be investigated? Their fear that someone in their family could be deported, the whole questioning of immigrants and their rights to vote?

MYRNA PÉREZ: OK. If someone is an eligible American and they are registered to vote and they have not been disenfranchised because of a criminal conviction or a mental adjudication, they have the right to vote. If someone is attempting to suppress that, there are people that will help you. Call 866-OUR-VOTE, report it. We will—we will do our best to counter the information. We will make sure that the election officials know about what’s going on. We will put media scrutiny on the issue. Every eligible American that is registered should participate.

AMY GOODMAN: And on the issue of prisoners in the states and ex-convicts, felons, the varying laws across the country.

MYRNA PÉREZ: Mm-hmm.

AMY GOODMAN: I remember speaking to a friend a while ago. When I said, “Are you going out to vote today?” he said, “I can’t.” And he talked about the state he was in, and he said he’s never been able to vote. And I looked it up, and he was actually able to vote.

MYRNA PÉREZ: Right, right.

AMY GOODMAN: And people do not know, because these laws vary from state to state.

MYRNA PÉREZ: That’s exactly right. The first time I was on your show, it was about that. We are a patchwork when it comes to how our state laws disenfranchise persons with criminal convictions. We have some states, like Maine and Vermont, where you never lose your right to vote.

AMY GOODMAN: You can vote from prison.

MYRNA PÉREZ: You can vote even from prison. You can vote from prison. And one of the problems that happens when you have this patchwork is that there’s misinformation. People don’t understand, you know, what the rules are in their state. And one—

AMY GOODMAN: The states where you never, ever can vote again?

MYRNA PÉREZ: Well, when there’s bright lines, that tends to be easier. Maine and Vermont, they tend to have not trouble, because they know that, you know. Kentucky and Virginia, they tend to know—they tend to be OK, because they know where the bright lines are. What you have—when you have the most problems are states like New York, where you can vote if you are on probation, but not if you’re on parole.

And one of the things that is really important is that people not disenfranchise themselves because they don’t understand the state law, because what frequently happens is somebody will have bad information, and then they’ll tell their cousin, and then they’ll tell their girlfriend, and then they’ll tell their girlfriend’s best friend, and then you have these entire communities being misinformed about what their rights are.

AMY GOODMAN: So what do you do?

MYRNA PÉREZ: You can call 866-OUR-VOTE, and we can let you know what the state law is. But you should do that before election time. You should look up what your state rules are. If you are eligible to vote, you should register to vote. There are people that can walk you through the process.

AMY GOODMAN: And you have to re-register if you were imprisoned? And—

MYRNA PÉREZ: It depends. It depends on the state. That’s a—

AMY GOODMAN: So you should just call.

MYRNA PÉREZ: Yeah, it’s a complicated issue that has to deal with what their list maintenance procedure is, and there’s no one right side.

AMY GOODMAN: I want to thank you both for being with us. Myrna Pérez is senior counsel in the Democracy Program at the Brennan Center for Justice at New York University School of Law, part of the Election Protection Coalition’s voter support hotline. Their number, 866-OUR-VOTE. And thank you so much to Brentin Mock, lead reporter for Voting Rights Watch 2012, a collaboration between The Nation magazine and Colorlines.com. We’ll link to your latest article, and we hope to speak to you both tonight to get the latest at the end of this historic day. This is Democracy Now!, democracynow.org, The War and Peace Report. Back in a minute.