(bright music) - [Announcer] This is a production of PBS Charlotte.

- Tonight, on "Unspun," a power struggle at the heart of American democracy.

Should elections be run by the states or by Washington?

Calls from President Donald Trump to nationalize elections have reignited a long-simmering debate about federal power, state authority, and where the constitution draws the line.

Plus, we'll discuss the State of the Union address.

In today's America, welcome to the spin game.

(screen whooshing) Believe me, I know.

I'm Pat McCrory.

(screen whooshing) When I was governor and mayor, I played the spin game.

(screen whooshing) I was played by the spin game, (screen whooshing) but aren't we all done being spun?

(screen whooshing) Let's take the spin out of the world we're in (logo whooshing) here on "Unspun."

(dramatic music) (logo whooshing) Good evening, I'm Pat McCrory.

For more than 200 years, elections in this country have been run by the states, but pressure from both parties over voting rules, ballot access, security, and trust is pushing that system into new and untested directions.

The question isn't just about politics, it's about confidence in the vote and whether centralizing power fixes problems or creates new ones.

Tonight, we're joined by someone who has been inside the election system at its most consequential moments.

Ben Ginsberg is one of the most experienced election law attorneys in the country, a longtime legal advisor to national campaigns, and a key voice in the debate over how American runs its elections.

He worked at the highest levels of presidential politics and served on bipartisan efforts to improve election administration.

Joining us from Washington, DC, please welcome Ben Ginsberg.

Ben, it's great to have you on "Unspun."

- Thank you, great to be with you.

Thanks for having me.

- So this new debate, and it's really not a new debate, but an old debate that's coming up just recently regarding voting, who has control of voting at the federal and state level?

And right now, President Trump and the Republicans want more control out of the federal government.

What are the constitutional issues with regard to this?

- Well, the Constitution is pretty straightforward and plain.

Article I, Section 4 gives the states the power to set the time, place, and manner for elections.

There is a clause in the Constitution that says Congress can pass laws, especially to deal with federal elections, those for the Senate and the House.

There is no mention of the president of the United States in the Constitution, so the idea of the president being able to decree a voting law simply doesn't have authority in the Constitution.

- So this is very similar to the executive order debate that we've had during the last four administrations on executive power versus having to go through Congress, in addition, state power and local power, but it has to do with voting, am I correct there?

- Yes, I mean, honestly, the voting sections of the Constitution are much plainer than many of the other executive order controversies that we've had recently.

And, you know, governor, it's worth noting that for years and years, Republicans have been opposed to a federal approach to election, that the theory of the party, the doctrine of the party has been that this should be a state and local function, and so this current round of the debate is really atypical for what's been argued in the past.

- We've had some recent flip-flops on both parties on state control versus federal control, and there is no consistency with either party, but you're right, among Republicans, we were the ones, I'm a Republican, who said elections should be controlled by the states, and in North Carolina, for example, the counties have a great deal of influence on how we hold elections, also, among our own constitution.

So what are the practical issues?

Not just the constitutional issues, what are the practical issues regarding the federal government having more control over the state government on voting issues?

- It's always been sort of a given in the election law area, election administration, that one size doesn't fit all.

There's simply differences between what happens on a very local level and what happens on a statewide level, that the way you would set up an election for Charlotte is pretty different than the way you would do it for some of the more rural counties, and you shouldn't impose a uniform structure across the state, let alone every state in the country, that people on the local level actually know what's best for their communities.

- Now, one of the major issues that's arising, especially since mail-in voting, is when do you count the votes?

And when does the public know when the election is over?

And it used to be on Election Night, we knew when the national elections were over, and now, I think much of this debate started is some states are going, "No, we'll wait to count," or get some of the votes coming in, especially from overseas, could occur two, three, four, five days after the election is over.

And the president is saying, "No, we need to find out now.

They need to get the votes in at a certain time."

So what do we do if there's a renegade state who could determine the election, especially a national election, and is kind of off the reservation in counting their votes?

- Well, there are a number of different facets to that question.

First of all, recognize that the outcome of elections are never final on election night.

Each state has a procedure to certify the results in local communities and then come up with a statewide number, and that determines the winner.

And that takes place two, three, or four weeks after the election according to each state, and that's very much up to the states to do, so the the number on election night is really a formality.

Now, having said that, there are two parts to the issue.

One is the practical part, that we want to know the outcome on election night, that there's a tradition of that.

The many of the incidents that have occurred in recent years that have caused election dysfunction and credibility to come into account happens because the result is done on election night.

Now, as a matter of law, each state has the authority under the Constitution to decide that question.

Although there is now a case that's gonna be argued next month before the Supreme Court that could stop the counting of ballots received after Election Day, but as a matter of law, as it stands now, each state has the ability to extend its deadlines for ballots postmarked on Election Day, but received after.

- What's your- - President Trump and I think many think that's a bad policy, that it's better to get it done, but there's clear legal authority for states allowing the delay.

- What is the historical perspective of this argument about federal control and state control, in fact, where the Republicans and Democrats have rather flipped, what's the most important historical perspective on who controls elections in some of the past struggles?

- Well, that's the Constitution, which has pretty plain language on the time, place, and manner being allowed to the states, and in the highly-partisan world we've been in for the last 15 years, sometimes the principles that the parties have argued has gotten reversed to find pragmatic outcomes.

You know, Republicans opposed the Democrats' election bill in 2018 and '19, the misnamed For The People Act, on the ground that it would federalize elections, so, you know, things have changed.

- Now, is there some civil rights history, though, of the federal government stepping in on some of major election issues to ensure that we have fairness regarding equality, especially among the African American community in our country?

- Well, that always had to do with access to the polling place, that if there were barriers that denied people their ability to cast votes, then the federal government would step in.

And certainly, passage of the Civil Rights Act and the Voting Rights Act in the 1980s had a great impact on that.

That's different from sort of the policy decisions in the states on whether ballots received after Election Day should be counted or not.

- So you talk about the Supreme Court ruling on, I think, a very important case coming up regarding can you count votes after the Election Day is over or can you receive votes after the Election Day over?

What do you see with the court's current makeup happening in that case, and what are the major arguments gonna be presented?

- Well, interestingly enough, the arguments are not based on the Constitution itself.

It's based on some 1800s statute called The Elections Act, and it has to do with the legislative interpretation of what Election Day means.

The people bringing the case or saying that Election Day means only Election Day and not days after the election.

You know, the history of the country has been to allow absentee mail ballots, certainly was always true for military voters, and then got expanded in the name of making it easier for people to vote.

So the court will decide on the basis of the legislative language and the legislative history, which makes it a little bit harder to predict where the court will come out on this case.

- You're with an organization called Right Count, which is trying to increase the confidence and trust that people have in our election system.

What do you think we need to do as a country to increase the trust of people having confidence in our election system?

- I think the key to that is for people who don't trust the election system to actually go kick the tires of the way they vote and the way people in their state vote.

The difficulty of the crisis incompetence is really poisonous on a national level, but I think people find that when they take the time, they care about the issue, to really go into local communities in their states and ask their election officials precisely how the the system works.

That's a great means, the best means, of reassuring people that our elections are reliable.

- In the remaining minute or so, what is the one thing that you would recommend that we do to increase the trust of our elections?

- Well, I do think it's more than anything else that if people don't trust the elections, they should get involved themselves.

Go be a poll worker, go be a poll watcher, help out your favorite political party, look at elections on Elections Day.

See if the way the votes are being cast in your community and your state really are fair, and if when you kick the tires, you see that the system is either reliable, or if you see a fault, then get help for fixing those problems.

- Ben Ginsberg, it's been an honor to have a man of your skill and background on "Unspun."

Thank you very much.

- Thank you for having me, Governor.

(dramatic music) (text whooshing) - All right, right now for the "Unspun" Top Five Countdown, and the subject is the realities of voting that most people really don't know about.

We'll start out with number five.

Number five, name recognition is often the thing that gets a candidate to win an election.

That's why candidates put their name on yard signs, because especially on down ballot, those ballots underneath the president, and governor, and US Senate, the judges, the city council, the county commission races, we don't know who these people are, but we might go, "Oh, I recognize that name, Jones.

I'll vote for Jones, because I saw their yard sign."

Number four, neighborhoods tend to have the same pattern of voting.

Let me warn you about this.

You live in a neighborhood, probably, where most people vote the same way you do.

Isn't that interested?

Well, we as candidates know that you live in a neighborhood in which you vote the same as your next door neighbor in most cases.

Therefore, we know if you're a Democratic neighborhood or a Republican neighborhood, or an independent neighborhood.

that determines where we knock on the door to get your vote out for a primary or a general election.

We're very all predictable.

We are predictable in how we vote based upon where we live.

Number three, gender, race, and age actually sway people's vote.

So if you're a woman or a man, and a candidate is a woman or a man, you might vote for them because they're the same gender as you are.

It's a sad commentary, 'cause you're not supposed to do that when it comes to, for example, hiring.

That's against the law, but on voting patterns, candidates see that often people vote for people that look, or act, or are the same age as them.

It's a very interesting pattern in voting in our country.

Number two, nonpartisan elections are still partisan.

In Charlotte, for example, the school board elections are nonpartisan.

There are no Republicans or Democrats on the ballot, but guess what?

The Democrats and the Republicans know which ones are Democrats and Republicans, so they'll only send flyers to you to remind you which ones are the true Democrats, especially in Mecklenburg County, where almost the entire school board is Democrat.

The politicians know this, the voters don't.

Number one, coattails still impact low-profile race success and turnout.

The fact of the matter is history shows us that high-profile candidates like Trump or Obama help other candidates down ballot.

If their popular, they'll bring out more voters, and therefore, they may impact city council or county commission elections down the ballot.

Believe me, I know this as a gubernatorial candidate, also.

(dramatic music) (text whooshing) Time now for "Unspun 1-on-1."

Joining me now is WFAE's politics and government reporter, Steve Harrison.

Welcome back, glad to have you on "Unspun."

- Thanks for having me on.

I guess let's start with this, we were just had a segment on elections, and I want to ask you, you were in the governor's chair, and you know, recently, the General Assembly in Raleigh shifted control of elections in North Carolina from the governor's office to the auditor, a political power play, of course, 'cause the auditor's Republican.

When you watched that unfold, what were your thoughts?

- I'm disappointed, because I think the governor, not just because I was governor, but because I think the Constitution gives the governor authority over these executive branches that don't report to the other members of council state.

It was a pure power move by the Republicans in Raleigh, which the Democrats used to do when they were in control, taken away a lieutenant governor's power when he had a Republican lieutenant governor - I remember that.

- Back in the day when Jim Gardner was elected lieutenant governor.

It's just constant power plays, and I think it's harmful to the long-term stability of government and trust of government, so I hate to see it.

And I joined previous governors from Jim Hunt to Jim Martin, the late Jim Hunt and Beverly Perdue, and the others to fight this in the state Supreme Court.

So I think it'll be a long-term mistake, especially for the Republicans, 'cause sooner or later, the Republicans will take control of the governor's branch and lose the legislative branch.

- Yes, that's true.

I was thinking of a Democratic auditor and a Republican governor, and then you can just flip it back, but yes, if you lose - Absolutely.

- A legislature, you have a real problem.

One more on elections.

The Trump administration has talked about... Trump has thrown out this vague idea of nationalizing elections in 15 states.

Presumably, North Carolina would not be one, because we are under Republican control, et cetera.

Again, your reaction when you read about this?

- More hypocrisy by both parties.

The Democrats used to be for strong federal control.

In fact, just two or three years ago, they tried to pass a bill with federal control over state elections.

- [Steve] HB1, I think.

- HB1, and the Republicans cried foul, "No, it belongs to the States."

Now, it's in reverse.

They've completely taken opposite positions, have flip-flopped, and none of them admit that they have flip-flopped.

They just pretend the history doesn't exist regarding the record.

- I think one thing on the issue of nationalizing elections, the White House, you know, the communications team has tried to soften that a bit and focused on the Save Act.

Trump has not, but the White House seems to realize there's a problem.

Okay, let's shift just to the big news a couple nights ago to the State of the Union speech, the longest ever.

Did you see anything (Pat sighing) from the president that will change the trajectory, you know, he's got low approval numbers, change the trajectory going into the midterms?

- He probably built the base up back a little bit more, but the independent vote's what's gonna control the future elections, and I don't think he appealed to the independent voters.

Believe me, I know this.

I had independent voters at one time in an election and then I lost them, and if you lose the independent vote, for example, North Carolina, you lose an election, because the independent now out-registers the Democrat and Republican vote.

So what discourages me more about the State of the Union address, and this has been 20 years in the making, is the decorum.

We've lost the decorum.

It feels like junior high cafeteria.

- Yeah.

- It feels like a food fight, where people are yelling at each other, people are immature.

You know, if you acted that way in a classroom, you'd be suspended from school.

- And I guess- - And it's maddening to me, 'cause I believe in decorum, and I believe in respect for that room in which that speech is held.

And ever since, I guess, in my political time period, when someone yelled at Obama?

- Joe Wilson, "You lie."

- Joe Wilson yelled, "Liar, you liar."

- "You lie," yeah.

- That was kind of the beginning, and then later on, Obama lectured, President Obama lectured the Supreme Court, which was very much out of the ordinary, when they're sitting on their hands and they're being lectured to by the president, very inappropriate.

And then we had, you know, Trump, and then Pelosi tears up his speech.

You just don't do that, and this is from someone who's given several state of the state addresses.

You should be respectful to the people in the audience, including the TV audience, and they should be respectful to you.

We're seeing neither one right now in Washington, DC, and that does not help the Republicans this coming election cycle in the midterms.

Now, one thing in the State of the Union, the president talked about Iryna Zarutska, The young woman murdered on Charlotte's light rail line.

He falsely said, kind of added to his speech, that he came in through open borders, that is incorrect, but moving on from that- - No, he winged it, and he made a good point.

I hated that Charlotte, and from the person who brought light rail to Charlotte, we did better improve our public safety in all of Charlotte and on light rail, but it had nothing to do with illegal immigration, it had to do with public safety.

- But I thought it was interesting, I mean, this was a national speech to a national audience, but I think that in the Senate race coming in November for Michael Whatley, the likely Republican candidate, Iryna Zarutska will be the main issue.

That's just my opinion.

I don't know how you feel.

- No.

There'll be several million dollars, maybe 10 or $20 million of ads reminding all of North Carolina about that terrible crime that happened on our light rail line, and it'll try to move the emotions.

This is not new in politics on either side of the aisle, but he needs to get his facts right if he does it.

- While we were talking about the Senate race, I want to just talk a little bit about early voting in North Carolina overall.

- Yeah, yeah.

- A lot of people are turning out, a lot of Democrats (Pat sighing) are turning out, 59% of the voters who have cast early ballots so far have pulled the Democratic ballot.

If you go back to four years ago, when you were in the primary, it was 50-50.

It was an even split.

This primary looks a lot like 2018, which ended up being a blue wave year.

Does any of this surprise you?

Is it just kind of confirming what we see in the polls?

- Well, someone who's a registered Republican, it doesn't look good for Republicans based upon the voting trends right now, and the registration and early voting, and you're right, you can reflect to 2018, and it doesn't look good for the Republican Party, it looks good for the Democrat Party.

- And remember in 2018, there was no US Senate race on the ballot.

Republicans, in a way, dodged a bullet by not having to run, and this time, they do.

I think the early vote is not really surprising.

It's just kind of one more piece of evidence of where we're heading in November.

- I think your reporter instincts and your data is accurate.

Steve, it's been an honor to have you on "Unspun."

Thank you very much.

- Good deal, thanks for having me on.

- Thank you very much.

Appreciate it.

(dramatic music) (text whooshing) As we've been talking about state and local control of election, it should remind all us of something we too often forget.

State and local government has the biggest impact on our daily lives, education, public safety, transportation, job creation, and yet most of our political conversations and press coverage, and many political ambitions, are fixated on Washington, DC.

That's one reason I'm often so disappointed when people come up to me and say they want to run for office, they want to go to Washington, DC.

They think that's where all the action is, where you can really change people's lives.

Well, I think they're wrong.

What they see is the glory, the titles, the ego, the TV cameras, the flights to Washington.

What they don't see is how little influence a freshman member of congress actually has and how long it can take to make a real difference.

In fact, I usually warn them, "If your goal is actually to fix problems, you'll probably get bored in DC."

Back in 1994, I almost ran for Congress.

My dad asked me a simple question, "Why?"

I said, "Dad, it's Washington."

He looked at me and said, "You'll be one of many, and you'll wait many years before you have any real influence."

Then he said, "Pat, you have a chance to become mayor of Charlotte," and then he asked the question that changed everything.

"Where can you make more of a difference, as a mayor or as a congressman?"

Well, my ego said, "Washington, as a congressman."

My soul knew the answer was right here in Charlotte as mayor, so I decided not to run for Congress.

A year later, I ran for mayor and became the 53rd mayor of Charlotte.

My dad lived just long enough by one week to see it happen.

No regrets, Dad was right.

So to anyone out there thinking about running for office, here's my advice.

If you really want to make a difference, don't start by looking up at Washington.

Look around your own community.

Run for school board, run for county commission, run for city council.

That's where government is closest to the people and where your decisions actually show up in their lives.

Well, that's the truth is I'll see it.

I hope you'll join us next week on "Unspun," where we'll tell you what politicians are thinking, but not saying.

(bright music) (bright music) - [Announcer] A production of PBS Charlotte.