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tv   Washington This Week  CSPAN  March 30, 2015 3:59am-6:01am EDT

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supreme court arguments and free-speech challenges. then, q and daa. the last crossing of the lusitania. >> tonight more international consumer electronics. >> if there is something you want to capture, take it off. it will be simple and it will expand. it will be as easy as gesturing. it is autonomous. there is no remote required. there is a direction and if you throw it, it will go further away. it will take a photo and come
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back. >> the communicators. nmed [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2015]
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visit ncicap.org] guest: good morning. we are welcoming you here today to talk about the president plus commission on election commission which a little over a year ago issued recommendations, and here we will talk about progress being made and where to go from here. my role is very simple, to introduce the commissioners and quickly introduce and then turp it over to them. -- turn it over to them.
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thank you. this past year, you have actually been and honor privilege and pleasure to work with bob and nate and all the pleasure to come up with our series of recommendations and best practices. the truth of course is that bob and i have battled over many very partisan battles over more years than bob cares to admit. and it really was a tremendous
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opportunity for us to be able to come together over these issues. because republicans and democrats agree that the ability of all qualified voters to cast their votes fairly and without barriers is a fundamental part of our system and needs to be encouraged everywhere. one of the things that all of you taught us is that we have a very interesting system with 8000 jurisdictions that have some responsibility for putting on elections. so that uniformity is extremely challenging, one of the things the commission saw. but for the few number of jurisdictions where there are problems, there are many more jurisdictions who do the individual parts of voting, whether it's lines for registration or proper polling places, very, very well. so the great opportunity that we had and the great educational experience that i think bob and i were able to share was to talk to so many election officials around the country see the great skills and dedication that they have to the problem. so i hope our report is a testament to being able to find solutions to problems and then having them implemented in those jurisdictions among the 8000
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that do have problems in one of these areas. it is certainly worth noting what a great process it was to work with my fellow commissioners and with nate and then all the folks who came and talked to us at the hearings we had around the
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worth noting what a great process it was to work with my fellow commissioners and with nate and then all the folks who came and talked to us at the hearings we had around the country. so i hope this report is the start of something that will now be implemented, thanks to john fortier and the bipartisan policy center and tammy and don palmer as we go forward. it is certainly true that it is a difficult process to get all the elements of this report implemented, that it really is a state by state operation, and that's both with the successes and the challenges that the bpc project will lie your so with that let me again thank john for what's going on, and bob for this terrific year, and nate for making us all smart. and all the commissioners for your wisdom and insights on how to solve these problems. >> during the day we are going to delve more deeply into four issues which the commission made major recommendations. i haven't counted how many literal recommendations there are because there are definitely very specific recommendations but the four areas we're going to talk about today are improving the polling place experience of reducing polling place lines, second, the voting technology issues associated with the new generation of voting machines and that we certify and test them, the possibility of early voting and how states are moving to that and might move to that more effectively, and a number of issues related to voter registration, including online registration and data sharing across states and working with their dmv's. we have a little time in this initial panel which touches things off to say something about those issues, and maybe i can ask some of the commissioners to pick one of those and say a little something about that. i know maybe the voting technology issue i think is one that i
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thank you. this past year, you have actually been and honor, privilege and pleasure to work with bob and nate and all the pleasure to come up with our series of recommendations and best practices. the truth of course is that bob and i have battled over many very partisan battles over more years than bob cares to admit. and it really was a tremendous opportunity for us to be able to come together over these issues. because republicans and democrats agree that the ability of all qualified voters to cast their votes fairly and without barriers is a fundamental part of our system and needs to be encouraged everywhere. one of the things that all of you taught us is that we have a very interesting system with 8000 jurisdictions that have some responsibility for putting on elections. so that uniformity is extremely challenging, one of the things the commission saw. but for the few number of jurisdictions where there are problems, there are many more jurisdictions who do the individual parts of voting, whether it's lines for registration or proper polling
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places, very, very well. so the great opportunity that we had and the great educational experience that i think bob and i were able to share was to talk to so many election officials around the country see the great skills and dedication that they have to the problem. so i hope our report is a testament to being able to find solutions to problems and then having them implemented in those jurisdictions among the 8000 that do have problems in one of these areas. it is certainly worth noting what a great process it was to work with my fellow commissioners and with nate and then all the folks who came and talked to us at the hearings we had around the country. so i hope this report is the start of something that will now be implemented, thanks to john fortier and the bipartisan policy center and tammy and don palmer as we go
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forward. it is certainly true that it is a difficult process to get all the elements of this report implemented, that it really is a state by state operation, and that's both with the successes and the challenges that the bpc project will lie your so with that let me again thank john for what's going on, and bob for this terrific year, and nate for making us all smart. and all the commissioners for your wisdom and insights on how to solve these problems. >> during the day we are going to delve more deeply into four issues which the commission made major recommendations. i haven't counted how many literal recommendations there
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are because there are definitely very specific recommendations but the four areas we're going to talk about today are improving the polling place experience of reducing polling place lines, second, the voting technology issues associated with the new generation of voting machines and that we certify and test them, the possibility of early voting and how states are moving to that and might move to that more effectively, and a number of issues related to voter registration, including online registration and data sharing across states and working with their dmv's. we have a little time in this initial panel which touches things off to say something about those issues, and maybe i can ask some of the commissioners to pick one of those and say a little something about that. i know maybe the voting technology issue i think is one that i know our esteemed co-chairs probably didn't think they were going to come into this commission and say, this is the thing we are going to mix a major recommendations about, but do you want is a little bit about that issue or a couple of others of you may be jump in
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say broad things about the others? >> john is right in this technology and problems with our existing machines, was not something that we anticipated talking about at the beginning of the process. but in our various meetings and hearings around the country, it was clear that every election official faces the problem of machines bought in the early 2000's, now kind of running out of juice. there was an additional problem in that the technological standards that had to be passed to bring new equipment to market have not been updated since 2007, which is before the ipad was invented. and by the way, you ought to be able to cast a ballot on an ipad these days. that's a fundamental problem
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that we saw that we got a tremendous amount of help to come up with some recommendations. matt masterson and christy campbell and the folks at -- and tom hicks have got a lot of the lion's share of getting all this put into place so that it can, there can actually be a solution to it but i think it is one of the things that came out of the commission was hopefully being able to put some focus on it. certainly, chris thomas who is one of our commissioners has been a tremendous amount of time in his role in michigan in dealing with the issue. >> maybe i can turn to chris. i was going to ask you with saying something a registration. i know you care deeply about many aspects of registration but in particular the department of motor
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vehicles in michigan is >> a model. do you want to say a little bit about that? >> there's a lot of the things on the table. voting systems is one of them. maybe i can turn to chris. i was going to ask you with really a model for working with the election office and sharing lists. do you want to say a little bit about that as a key recommendation? >> it is a key as my co-chair indicated there's a lot of things on the table. voting systems are certainly one of them that we all see approaching. but an ongoing one has been the national voter registration act which really has not yet occurred. this report helped highlight that. every person who's eligible ought to be a
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registered voter and have that opportunity offered when they're doing business with department of motor vehicles. what the data shows is that that's just not the case. so we have highlighted that as a way of really across the board to get a higher registration rate to make it more convenient for voters. what this report is all about is the voter. it's not about political parties. it's not about election official. it's about the voters making this experience a better experience on election day. the worst thing is you show up on election day and your name is not in the book. but your driver's license will have your proper address on it. when the dmv's step up and fully implement this, we'll get rid of lion's share of the provisional ballots which also cause lines on election day. john: would one of the commissioners like to say a little bit more about the recommendation regarding polling place lines? that was the initial comments from the president that spurred the creation of this commission. one of the areas. and we'll have a panel later, but one of the areas we're trying to work, the commission with specific counties on these issues. you would say something about your findings online? >> sure. i will. good morning, everyone. it is great to see everybody again and to get the band back together here at the table.
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that's correct that the lines really spurred the commissions genesis, but what was on executive order was that it laid out 10 very discrete areas to look at, and one of those tied directly into resource allocation and what causes lines, whether it's the inaccuracy of our voter rolls or it's malfunction of voting equipment. and what we found as we went around the country was that lines occur for various reasons at various points in time during election day sometimes in the same polling place. so it's a very tough nut to crack and to decide exactly what are causing the lines, but what we're finding and will result in our hearings in some of those local election investors are here today is that election officials are looking to try and discern why these lines are occurring and looking to the facts on how they can mitigate that from
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occurring in the future. so which one thing to kind of cut through there are problems with a line at a particular polling place because machines have broken down, but then you find out had nothing to do with machines breaking down, but it was, in fact, a problem with poll workers workers liking and being kind to each other and listening to what they're supposed to do. so there's a wide reason that lines occur. so what we have to do, it was okay, how can we provide tools to local officials to figure out why they're getting lines and how to address them when they occur. and we did make the recommendation in the report that voters should not have to wait longer than 30 minutes in order to get to a point where talking to an election official to get their ballot, that sort of thing. that was really for the means and when you're doing a resource allocation, and poll workers to our, how many pieces of equipment, how many ballots should you order, to try and
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think about it in terms of want to process these people than 30 minutes. we provided some tools. they are out on support the voter.com is the website so it is www.supportthevoter.gov and the tools there that allow election officials to go when or in what really, public available, putting the expected turnout or the registered voters, however you want to cut that up, and anything joe going >> and how many things you are going to be allocating. what we come from election officials is that the challenges of resources. and some resources into lack of resources. some cases it's the quality of the resources that they have. in other cases it is the point of allocation of the resources. so putting what you have in the right place is the best way to serve the public and were hopeful these tools that we provided will help the local administrator in doing that. and i think that's part, for me, the commission in this report we really thought of having three separate audiences. there's an audience
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that would require state legislation to enact, like online voter registration. but then there's also things that state election administrators can do via rules and things that local administrators can do just by made in adjusting some of their processes. that's what we really want to make sure the tools being provided to everyone engaged to make sure the voters are well served. john: let me quickly turn to nate, the research director because tammy mentioned dave and i think this commission was data-driven, and one person made that call more than anybody else. it was nate persily calling for more metadata and really getting out into the field and engaging political scientists and other scholars and other sources of data. can you say a little bit about your efforts to remake this commission data-driven? nate: well, thank you again for having me here, and i'll talk a bit about that. i am both
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hoarse and wistful. bringing, as tammy said, the band back together but does overcome me. and i will say the research efforts of the commission while i was up on the research director, was a product of the work of so many political scientist, charles stewart being among them, as i've said on other occasions. there are few people in academia generally who are so invaluable to a profession as charles stewart is to the field of election administration that we don't know what we would do without them. he and others led a team of researchers whose research actually is featured this month in the "election law journal." go to your local newsstand and get that. and the effort included a survey, national survey of election officials. it also included a series of
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research papers on all of the topics in the executive order. and we had about a dozen between one and two dozen political scientists and other empiricists working with the commission to provide them the best data. notably, in the report, toward the end, there was a plea for more and better data from jurisdictions and to try to sort of replicate what we were doing in the commission, to bring information, to make it a more professional data-driven exercise. there is, as charles stewart is fond of saying, this is not intended would don't have all that much data. there is a lot out there, it's just that easily accessible to allow the professionals who would like to use it to improve elections. let me just say one
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final thing, and this picks up on what bob ben said, about the success of the commission. there's a sense in which at the end of this process it seemed like it might be inevitable that we would all, the commission would all come together unanimously in recommendations. but it really is a testament to their efforts and the design of the commission that the commission was able to do what it did. and it is sorted unique i think in this era of polarization to have two the people like bob and ben who are trusted by the parties and who can lead an effort like this with professionals who are on the commission to come together really to sort of deal with the problems that are widely known in election administration and to deal with them in a nonpartisan professional way. and that spirit that you see in the report is one that we recommend and hope continues after the report's release, you're one of the main recommendations as bob said was to begin to think of election administration as a profession a problem-solving profession that is data-driven, along those lines that i was saying. >> i think we have a little
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more time, if we could take, one obvious point is the commission itself had some boundaries and limitations. it didn't take on every issue. the parties have strong disagreed about some, but there was a lot that the parties could find common ground on. and primarily, the report really looks to state and local changes in law, rules, activities, and not really so much looking at the federal role. but the couple other areas may -- maybe we can briefly touch on, touch on later in the day. that is early voting and is one of aspect of voter registration chris talked about the d&d aspect of the commission recommended online voter registration as well as a number of ways in which states could share data across states to improve accuracy of lists. bob, would you like to say
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something about one of those areas speaker certainly? bob: one in particular i think is worth mentioning is the role of voter choice and of voter preference. one of the clear-cut signals that we got from election administrators and we certainly picked it up during the hearings, is the voters have a certain set of expectations about how they will be treated during the voting process. they would like the voting process to operate the way other spheres of their lives do. they have sort of a desire in their lives for a certain degree of sort of flexibility. they certainly would like to be treated by the electoral process as, if you will, customers can given the same sort of consideration that businesses give to their customers. so to a significant amount, to a significant degree in the course of our
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conversations, it was very clear that the voiceovers -- the voices heard loudest in the room was the voice of the voters. this goes to the question of multiple opportunities to vote which one of our recommendations. early voting if you will is one way to describe it but there's a whole host of other ways that voters who have an opportunity to cast their ballots in advance of election and there's an alternative to trying to schedule the voting moment during that one tuesday when many other people, particularly for example, a federal presidential election, may be voting at the same time. we just found that time and again the question, we are confronted with was what are we doing to improve the voting experience? are we listening to what voters are telling us? we found election administrators sensitive on a bipartisan basis to voters in blue as well as red states or in between, and what they were saying about what they needed. the multiple opportunities to vote is a good example of that. however it is structured, those are choices that voters are asking for. that, along with making sure that our decisions were
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data-driven, we didn't worry about that because we are driven by nate to make the data-driven, and by charles. we were listening to the voter. >> ann or ben, do you want to jump in on one of those topics? ann: sure. i'll jump in just as a few comments about early voting, which bob very articulately explained that was interesting was that no matter where we went, we got uniform consensus that it would be good to alleviate the congestion on election day. if you have to force all voters to vote within a 12-hour period on a single day, that's an invitation for problems and can contribute to long lines. what we saw was not one size fits all. some states have expanded and created early voting in person, which gives voters multiple opportunities, chances, not multiple times to vote, but have multiple opportunities to take advantage of early voting when it's
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convenient for their schedule. we also heard from northwestern states, colorado, that it had huge success with voting by mail. so the recommendation from the commission was not just saying it has to be early voting by personal appearance, but what works for your jurisdiction with limitations within your jurisdiction. and what we also heard was that in addition to alleviating the pressure points on election day, voters really love the opportunity as bob was saying. voters appreciate that choice. at in texas we've been doing early voting since 1987 and we could never do away with it because the voters would demand. we will be talking more about early voting today but that was a highlight. ben: just to emphasize one thing. multiple opportunities to vote means getting to vote once, but having lots of different ways to do it. sometimes gets confusing. and we did find
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very interestingly that different locations in different jurisdictions have different preferences about precisely what that means. so that what one jurisdiction means by multiple opportunities to cast your one ballot in one part of the country is quite different in another. and that just emphasizes the local nature that we have of elections generally, and that solutions or fixes to the problems we articulate to have -- do have to come state-by-state and jurisdiction by jurisdiction, that make this an ongoing challenge for election officials and people who care about the issue. the other issue i might note, john where we found a large degree of agreement, really complete agreement across the political spectrum, was the need for clean voter rolls. that, in fact, republicans and democrats
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agree that the election process works better, there are fewer long lines, there are fewer confusions over who should be able to vote and not vote if the rolls are clean. one of the things we did agree on in the report is that there are two programs out there that help states clean up their roles so that when voters go into the ballot box to cast their votes that there are not confusions over whether they should be there or not. and i think those are important bipartisan improvements that can be made. john: great. i think we are going to shift to a second part. we will not have a break, but will shift to a second part of the session. we have a visiting speaker, neil eggleston, who was the white house counsel who will be with us. i'm going to do a very brief introduction. we're not
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going to break for just a quick shift of seats were neil will come and join us and talk to us forgive us. will have a few questions and wrapup of the 00:28:17 w. neil eggleston session. as i mentioned, neil was the white house counsel, previously served as associate counsel in the clinton administration. also is assistant attorney in the southern district on your end formally a law partner. so we are very pleased to have a neil eggleston with us. again, this was the president's commission on elections. the president came up and appointed his commission and happy to have your in love to hear from you. neil: so thank you very much and thanks to bob and ben as well, into the bipartisan policy center for this. i always -- whenever i see bob i think to myself that it's clear that i wouldn't be white house counsel without bob's support. and there are many days i thank them for that and many days i curse him for that.
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so it's great to be here and next to bob. so thank you very much for that kind introduction. it's a great pleasure obviously for me to be here today. this is a matter and issue of imports to me and it's a matter of significant importance to the president. and i know it's important to everyone in this room. first, i want to take a moment to thank the bipartisan policy center both for hosting this retrospective, and for taking initiative to assist the presidential commission on election administration in working with states and jurisdictions across the country to advance the commissions important recommendations. let me go off on a riff and i will come back to make it clear while i'm doing this in the second, but i read this report what first came out and i read it again in connection with today's appearance. i was heavily involved in selecting the people to be on the president's policing task force, policing in the 21st century, and as i was asking those people to serve, i said two things to them, which is we want this done quickly. this is a matter
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of enormous importance. and the second thing we said was that we want this to be practical recommendations that can be implemented. and as i was reading your report again in preparation for today, i was struck how much of this report actually accomplishes those same two goals. it was done quickly with a lot of input, but in addition the recommendation you came up with are the kinds of recommendations that can be implemented that are important and the kinds of nuts and bolts running of the voter system that are so important and very thankful for your work on that. in america, as we've talked about, there are more opportunities to vote than in any other country in the world but more and more, as this group is all too aware americans are making the decision not to show up at the polls, particularly a non-presidential election years. as you know, in the 2014 midterm elections, voter turnout reached its lowest point since world war ii. i find that astonishing, and it's
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something we simply cannot tolerate. but maybe it is not so surprising in some ways because of the kind of work you have been looking into, that in the 2012 presidential election over 5 million voters wait in line are more than an hour come in many waited in line for six hours to cast a ballot. some studies have said that 750,000 people did not vote because the line was too long and it was simply going to take too long. as americans, we should set the gold standard for election administration and these statistics show that we are not there yet. and hopefully with the work of this commission and the kind of recommendations that you've made we can get much closer to the gold standard. in the 2013 state of the union address and subsequent executive order, the president established the commission on election administration and cast it with identifying nonpartisan ways to improve american election administration, to shorten lines at polling places,
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promote the efficient conduct of elections, and provide better access to the polls for all voters. i was struck again as i recently read the report, the accent on the necessity to have poll access for americans with disabilities, who obvious we need as much accommodation as anyone else to be able to vote. today, i would like to thank and congratulate the commissioners and the many who contributed to your report and to celebrate what you've already accomplished, with the help of our host, the bipartisan policy center. after six months, everything from election officials, academic experts and representatives of various organizations and associations, many of them thankfully are in the room here today, the commission develop a set of practical achievable recommendations to improve the developer experience at the polling place. you recognized and promoted a view which i share that the administration of elections must be viewed not as a partisan exercise but as a
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subject of good public administration. in doing so you focused on various aspects of voting, from registration to ballot design to polling place management, and many others, that work individually and collectively to create each voter's experience. and that seemed to me which -- what you focused on, what is the experience of the voter, and that's really the focus of your report. recognizing the goals you approached your view of the voting experience in same way that private companies evaluate their customers experience. i heard you went to disney world. i don't know if it's true to look at their famous line management system. i don't go as much as my kids grew up. the system was great and a lot to learn from private industry which focuses on which on its consumers. recognizing the importance of this work and your ability to effect real change, the commission did not stop at just providing
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recommendations. you went a step further by providing states and localities within a took kit to get containing real workable data-driven tools. with your help, with help from rock the vote you provide open-source voter registration software that states can use to create their own online registration systems. you provided election administrators with tools to calculate the number of polling places and staff they wanted to achieve targeted way times as well as the affect that adding or subtracting staff will have on those times and ultimately on the voters extremes. these tools are precinct specific and would make a difference in the localities ability to tailor its voting practices to the specific needs of each community. you showed that could election administration is good government. and you and the bipartisan policy center are now helping to bring these advances to fruition all across the country, working hand in
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hand with folks on the ground who have been doing this hard work year in and year out. i can't help but be impressed by all that is being done to use technology to improve public administration. it's worth highlighting in particular the great work that is already underway in response to one of the commission's chief recommendations, adoption of online voter registration that ben mentioned a few minutes ago. the commission's report called for an expansion of online voter registration as a method of reducing error saving money and reducing delays at the polling place and providing the voter with immediate feedback on registration status. since the report was published, five states have passed legislation to create online voter registration, and additional states are likely to adopt this reform in the coming year. of course, there's still a lot of work to be done. in the year since releasing the report, the commission that studied the administration of elections
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around the country to understand the local administration officials can better serve the needs of their communities. the 2014 general election, the commission teamed with the bipartisan policy center to study line, ways to streamline the process and you digester resource allocation tools in counties in florida south south carolina, and in virginia. while state and local officials must continue to confront the issues raised in the commission's report and evaluate their own needs, the federal government must do its part to ensure that election administrators are given the tools that they need to run smooth, efficient elections. last year, the president nominated and congress unanimously consent three new commissioners to the election assistance corporation. cristy mccormick, tom hicks, and matthew masterson, who may or may not be here today. i'm not sure. i heard you were all here today, should have googled what you look
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like. so i could've probably pointed at you. apologies for not doing that. last month, the eac was able to meet with the commission for the first time in four years. it immediately took action to address some of the recommendation raising the commission's report, including accrediting a voting system test laboratory considering important updates to the standards for testing voting systems and used throughout the country. and we thank you for your immediate action so quickly after being confirmed. earlier this month the president joined thousands of americans in selma to mark the anniversary of the march from selma to montgomery that led to the voter rights act of 1965. 50 years later, the members of this commission, and the work you do to serve as prime examples of how we can come together from across the country and from different parties and different political persuasions to make voting
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easier for every american, recognizing citizen participation is the core of our democracy. i am honored to be here with the members of the commission and particularly with its co-chairs, bob and ben, and take part in this very important conversation. i very much thank you for your attention and for inviting me to speak here today. john: thank you. i know you will have some time for a few questions and i guess i would start with some of the commissioners, if the commissioners would like to ask a question of neil while we have him here. bob, you used to sit in the same chair, not that share but speed i was pausing, thinking, what question. bob: i do think that i appreciate your putting the stress on the question on the effort on the commission's
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part to make practical recommendations. and i think the commission would hope also that we are going to have come and expect that we would have the continued support of the administration doing this bipartisan path towards election -- how do you see the various ways that this administration, subsequent administrations can tie into the effort as it continues to bring home the point that maybe other issues, other controversies but that is a public admission about the can >> bob knows this as well as i do, that the president is quite committed to this. he -- i think at selma, even since selma, he's talked about issues with regards to americans voting. and he cares a lot about the issue. i think you will hear him continue to speak about it in a nonpartisan sense, the kinds of things this
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commission is doing and the real need to, as i said, to make the voter experience such that voters will go to the polls. we can't reward them for going to the polls but we can make it not so hard for them to go to the polls. and so i think he'll continue to speak out about that and be a pretty big megaphone on those issues. he's very appreciative of the work of this commission. as i say, i really meant it -- as i reread your report again, i was struck really that the kinds of recommendations you have come up with, many of them, are not terribly expensive. very pragmatic. the disability recommendations are just ones that have to be thought about and dealt with. and the use of technology and the like, these are implementable and can have an enormous impact on the voter. we really want our citizens to vote. if they don't vote, we're going to continue
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this sort of spirit of unhappiness in the electorate. we really need to make sure they vote and they commit and they're part of the process. it are make our government better, our democracy better. so i thank all of you for your work to achieve that goal. >> other questions from the commissioners? >> neil, thank you for joining us and coming, for your kind words about the commission. one of the, i think, really sleeper issues in the report, in many ways, is communities having adequate facilities in which to let their citizens vote. and as we've looked at this, one of the best common solution and the most communities is really public schools. there are safety issues with that, of course, if you have lots of people there the outside -- from the outside, coming in to schools when children are there. so the recommendation is that it be an in-service day. that election day be an in-service day. it is, of
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course, locality by locality agreement that you need for that. but i wonder if the president, weighing in on schools as terrific polling places in each community wouldn't have a qualitative effect on helping this get achieved. >> so -- sure. i won't -- i may be counseled but i don't -- i may be counsel but i don't actually speak for him. so let me take that back. but i completely agree with your notion that we need places where people both feel safe and comfortable. and, you know people are typically comfortable with our schools. many of you probably live in montgomery county. this last election, i voted at a community center that was really quite close to my house in an early voting situation. but another kind of situation where i was comfortable. when i lived in new york in the 80's, it seemed to me that i voted at the lobby of an apartment
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building nearby, which surprised me, that you could vote in sort of a private location like that in new york. but lots of people voted. a lot of people to vote. so it got done. but i think that part of the voter experience is, as you say, ben, to have them in a place that they feel comfortable going. a lot of people have kids or have had kids. and they are familiar with the school situation. you're right, of course, that if you're going to do that, it almost has to be a service day because you wouldn't want all sorts of people not affiliated with the school be going in and out of the location, at least in a way that wouldn't provide for the safety of the voters as well as the kids. but so let me take that back. i think that's a very important idea. >> other questions coming from this side of the table? >> i have one, which is -- maybe it's a bit of a comment. but i need to respond to. i guess i
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think back to how the commission was created. i know that's -- you were not in the white house at that time. but first, the president had the interesting lines. but i think wisely, broadened that interest. of course, that was an issue. but there were many other issues relating to the voting process and laid that out in an executive order with clear instructions to the commission. too, i think one of the reasons the commission succeeded was because you have these two respected leaders and their parties at the top of the commission, cochairing it, and then the experience of election administrators. so it really was a combination of a lot of things that made it a defined agenda. both parties represented. and the real experience of people there. so guess i'm, you know, throwing a compliment your way, how it was designed. but maybe if you have thoughts on if that was all intended and whether that's a good model for other efforts. >> so i -- my sense is that it
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was an excellent model. what it seemed to me it attempted to do was to define -- again, i keep going back to this, partially because it's a policing task force. obviously ben and bob are cooperative on this issue but they're not cooperative on lots of other issues, right? >> so there are -- >> the words were you looking for was antagonist in. >> sitting between the two, i thought i would just go with not cooperative. >> so -- but i think that sort of the success of this is because it defined it, the issue, to be solved as the practical issues of improving the voter experience. so i mean, obviously if you had gotten into a lot of the other issues that divide the parties, this would -- nothing would have happened and it would have been an unsuccessful enterprise, i suspect. but by really looking at the voter experience on which everyone agrees,
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regardless of which party, that that is something that just needs to be improved, then the problem was defined in a way that you could come up with real solutions. and then i think actually the decision to not -- again, i'm sure there are am demmics around -- academics around the table, but to have not just academics but also people who are, as you say, voting administrators, who are actually out there, who -- whose voting machines break just as the poll is supposed to open, and now what do i do? and the poll worker who was supposed to show up doesn't show up, and now i have a line i didn't anticipate dealing with. so to deal with those kinds of issues, which you really couldn't do only with academics. so by having a blend of people -- then you did a
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terrific job with holding six months of hearings in order to even deepen your knowledge about what actually happens out in the field. i think it really helped your ability then to come up with these kinds of practical solutions. so i thought it defined a solvable -- not a solvable problem but a problem as to which real recommendations could be made. and i think the commission gathered the right tools and people to be able to address that problem. it's a terrific model. >> i'll just chime in very quickly. i think that part of what was successful about the process and the report also was that we didn't get together and say, if we were going to start from scratch, what would we do? instead, we served as more of a conduit for sharing what's already being done in this country. so every single recommendation -- there are in most cases multiple jurisdictions who have implemented it, implemented it well, are willing to share their story with the rest of the world on how they did it. and in most cases, almost every one of our recommendations is scalable. in that case, kind of one size does fit it. it might be a very large muumuu that you
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need to cinch up the belt but it is the sort of thing that's scalable. i know. what a visual, right? laughf. >> so i have to point to dean, the largest jurisdiction. your meu meu is kind of fight. but small jurisdictions also really appreciate having this material available to them. even though we published it a year ago every time we go out in public and meet with election administrators, i talk to people who are hearing it, seeing it, feeling it, excited about it for the very first time. the truth is, we brought together the a-teams. we've got many of them here today. but there are many more who don't have the resources to go to national conferences. maybe they don't even have the resources to go to their state conferences when they have that available. so being able to have this as a resource to them
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is very helpful. and that's why i think it's really critical that we do have the eac reconstituted, because that's another great resource. we relied on it in the report. rementioned it numerous times. so i think that that has been really gratifying, to see that people are using this as a tool. from montana to kentucky they're using it to measure lines, to come up with new processes to see if there are lines, how they can address them when they do occur. it's very exciting. >> bosh, can i say one -- bob, can i say one more thing? and i think i'm going to have to go. there's one more thing i wanted to say. it's so terrific that you're having this conference a year later, because that proves -- so the other advantage to what's happened here is that you've come up with, as i said implementable recommendations. but you're not suffering from the problem of no follow-through, which can
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happen in connection with these kinds of reports. so you've continued to work on the implementation. you've continued to study some of the issues. and then you're having a conference such as this to ensure that there's real follow-through and there's being implementation, because it's -- as you all know, it's always great to have a report. but for something like this, you need -- you need administrators and actual locations to read it, think about it, and then have the resources in order to develop it. that's just terrific that you're doing this kind of follow-through to make sure these great ideas you have are actually getting adopted throughout the country. i really applaud you for doing that as well. thank you all very much for inviting me. i'm honored to have appeared here today. i hope you keep having these, because it's just so important a topic that you've agreed to address here. so thank you all very much. really appreciate it. >> thank you. [applause]
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>> if it please the court. message's on texas plans plates are government speech. the state of texas etches its name on each license plate, and texas law gives the state sol control and approval authority of everything that appears on a lance -- license plate, texas is not abridging free speech rightsful motorists me remain free to speak with a bumper sticker or window decal but the first amendment does not mean a motorist can compel any government to place its imprimatur on a battle flag. >> one of the problems of the standard whether it is regarded as offensive to many people. is it government speech to say, mighty fine bourbon to advertise a project? >> yes, the government can approve the messages, just because it has endorsed messages or is accepting and generating
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revenue to proven gait the messages doesn't defeat the fact it is government speech. when the library of congressship takes sponsorship for the national book festival, that's still government speech on the web site. >> suppose texas erected 500 electronic billboards around the state, and on the billboards they posted some government messages, wear a seatbelt when you're driving burt at the bottom people could put a message of their choice. would that be government speech? >> justice alito, the portion the government has sole control over that would be government speech. of the government doesn't have final control or approval authority over another portion -- >> that was the bottom. the government has the same kind of approval authority it has here. it will allow people to say, inoffensive things but if they say something that is offensive, they won't allow that. that would be government speech. >>
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it would be government speech under the best reading of -- that you have final approval authority and the government isn't abrimming other traditional free speech rights. >> i'm sorry, i don't understand. almost anything the government does it has final authority to veto. whether it's a school or a government web site. it always retains the authority to say no. the issue is, when can it say no? the constitutionally. so i don't think it's merely that. and in summer, the government actually created the words that were being advertised. so isn't that substantially different because the government is not creating these words? >> just sotomayor on summan, the court indicated -- >> the monument case. i'm talking about johan unanimous. >> that's right. in summan though, a private organization
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put it name on the monument and donated it to the park. in johanns the government created a program to espouse the message, beef is what for dinner, but even then, as the court recognized the secretary of agriculture didn't write ad company. the government had control but just not at every step of the way saying this is how the message must be. but the end of the day had final approval authority. but returning to justice alito's discussion about the tests. the test can include other elements and, this is government speech. texas has its name on every license plate. there's a formal process here of notice and the board takes a public vote before approve anything specialty license -- >> do you want us to hold that because it's government speech, the
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government can engage in viewpoint discrimination? >> that's right. and the court has recognized that in sumam. >> does hat have any limits? suppose somebody submitted a license plate to texas that said, vote republican, and texas said, yes, that's fine. and then the next person submitted a license plate to texas and it said, vote democratic. and texas said, no, we're not going to approve that one. what about that? >> justice kagan, our position wouldn't allow that -- >> why wouldn't it? >> the establishment clause, the equal protection clause, due process clause, other constitutional bars. >> this is not an establishment clause issue. i'm curious what constitutional constraints you think there are and how they would play out as to the kind of hypothetical just gave you. >> absolutely justice kagan. there could be other constitutional bars such
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as equal protection clause. the oregon supreme court -- >> all you had to say is whatever prevents texas itself in all of its other activities never mind license plates. saying vote republican. right? >> absolutely. >> you put the same question. what stops texas from saying it -- its election literature it passes out. vote republican. i think something prevents that, and whatever prevents that would prevent it on the license plates, too. no? >> that's correct, justice schoola, which is why the issue is government speech in general but the court recognized unanimously the government speech doctrine does not -- excuse me -- the government can speak even if it takes certain viewpoints -- >> what case do you want me to read to show that the government can engage in viewpoint discrimination when it's his own speech? the monument cases? >> yes, justice kennedy.
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sumam would be the best example. >> is this a case where the state, the government, has aided in creating a new kind of public forum? people don't go to parks anymore. if the government bought 17 soap boxes to put around the park, that government property, but the government can't prohibit what kind of speech goes on. the why is this a new public forum in a new era? >> i don't think it's a public forum for private speech. the court never recognized a public forum for private speech when the government places its name on the message, when it completely controls the message, receiving notice and comment from the public. >> that's -- already. the whole question is whether you -- that is circular. the question is whether you can control the message. you're assuming the answer to the question. >> justice kennedy, i think the court has looked at governmental intent to determine whether there's a
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public forum for private speech. for all of the reasons that we're pointing out, this is government speech, it is the same -- the flipside of why a public forum has not been created. so, -- >> i'm not quite shoe why it's government speech since there's no clear, identifiable policy, at least art arguable there's non -- that the state is articulating. they're only doing this to get the money. >> i don't income a message can be part of any test for government because government must supreme in all sorts of ways. the court in sumam indicated the 52 structures in central park were all government speech, yet it's a wide array of res imagine -- messages, such at alice in wonderland. >> here you could have conflicting messages. what's the government policy between allowing university of texas and university of oklahoma plates. >> the state of texas can promote the educational diversity of citizen is. >> okay. the policy permitting
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mighty fine burger plates and pretty good burgers plates. >> mr. chief justice, as an austin, texas establishment, the state of texas could promote that message, but even if mighty fine burgers weren't a texas establish. , texas is allowed to endorse speech, and just because it would be generating -- >> so it's endorsing speech. >> it is the government speech. the analogy would be an endorse. such as a professional athlete. the professional athlete, for instance, places a logo or product or otherwise on some apparel the athlete is wearing. that's still the speech of the athlete. >> but the athlete done advertise nike on his jersey and adidas on his shoes. you can see one message. that athlete is endorsing this brand. but texas well put its name on anything, and the idea this is their speech, the only thing that unnyes it is they get money from it. >> mr. chief justice -- >> better be good. >> the state of texas does not put its name on
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everything. it follows a formal process with a public vote -- >> you told me yourself you said its name i etched on the license plate. >> every message on the license plate, yes, that is the state's message. >> how many of them are there? >> as of the beginning of this month, there were 438 specialty plates, 269 of which were vrabel -- available for general public use. >> how many have you disapproved other than this one. >> texas agencies have denied about a dozen plates. some of that information is in the record, some is not. >> what other ones have you disapproved? >> the board's predecessor denied a prolife plate. the board denied a texas dps trooper foundation plate and the board's predecessor denied a dozen other plates. >> on theground of offense? >> the information is not clear as to what the
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grounds for those denials were. the legislature itself has repealed multiple specialty plates that it created. >> could i ask, mr. keller, if you good down to texas and just stare at license plates are most of them just the standard license plate and then these 400 license plates you see very rarely, or do most people actually have one of these specialty plates? >> well, there's a wide range of -- i believe most platers still the standard plate. >> but there's a substantial percentage that are not and it's not by any means unusual to see a specialty plate. >> not unusual to see a specialty plate in the state of texas, but the state of texas by etching its name on it can keep control of what appears on license plates. still the state's message. >> what is the limit to this argue. that's what concerns me. your answer to my billboard question was disturbing, but suppose people still did good to parks and the state had an
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official state soap box at the park, and every once in a while a state official would mount the soap box and say -- give some official state announcement. other times people who paid a fee would be allowed to go up there and say something they wanted, provided it was approved in advance by the state. would that be official state speech? >> justice aleta, i think we're starting to cross over into a situation what is called -- what this court called a subterfuge. if you are abridging traditional prespeech rights and limiting access to a traditional public forum that's an instance where -- >> why hasn't this become traditional? i don't mean to interruptity -- justice alito. you have opened a new forum. >> i don't think it's become extra tra divisional because texas has
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always main maintained control over is plates and exercisedder toal control. so unlike a park, which has been held since time immillion morial for the public to speak -- >> you want us to say the public are not involved over time -- people don't go to parks anymore. they drive. >> absolutely. the public traditional public forum can't evolve over time. but the indicia of a traditional public forum has to be one that is open, and texas is not open license plates. if other states -- >> in a world in which you have approved 400 license plates and they're pretty common in the state of texas, and you have only disapproved a very select few, it does seem as though you have basically given -- relinquished your control over this and made it's people's license plate for whatever private speech people want to say. >> justice kagan, it would be odd to say it's
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private speech when the board is taking a public vote and receiving notice in common governmental function of when the government wants to act, and it's placing its name on the license plate. when the government is placing its name on the license plate, it is accepting and signifying this is the government's message -- >> does it have notice for every one of 430 that it's approved, every time there's a request, is there a notice incumbent procedure? >> if it's a legislature created plate, the legislature would do and it there wouldn't be an agency notice. but under existing law notice and comment would be required for every specialty plate approved by the agency which is all specialty plates not approved by the legislature. >> i think a good analog to this case would be the u.s. postal service's postage stamp program. there the u.s. is placing its name
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directly on the medium, thousands of stamps have been issued in the past and yet there's also private input that is allowed on to what the postage stamps will look like. just as the respondents can speak in all sorts of ways on a bumper sticker right next to a license plate or in the envelope on which a stamp would appear that doesn't mean that someone is allowed responsive speech to whatever appears on the stamp or a license plate. >> does texas also have specialty plates insofar as the letters or numbers of the plates are concerned? can you get a license plate that says, hot stuff, or something like that? >> ity scalia, we do have personalized license plates in texas. >> are those sensorred in can -- censored? >> the speech is controlled completely by the state of texas. texas -- this is not in the record -- even though the individual selects hot stuff or whatever other message.
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so i guess if this is not allowed, we can't allow that either. >> yes, sir. >> right, dirty words are -- people are entitled to use dirty words. >> justice school ya, -- justice scalia the court's holding would affect -- >> i'm not sure your analogy to the postal service works because none of us can imagine the postal service having commercial advertisements on its stamps. re/max reality, you won't see it on a postal stamp. >> it may be true the u.s. postal service has not chosen to engage in that type of expression but it development think that defeats the fact this is still government speech. even justice souter's dissent in johanns, we have that here. have texas' p name etched on the license plate. also, untenable consequences, fall from an opinion recognizing that texas has to offer
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responsive speech. texas should not have to allow speech about al qaeda or the nazi party simply because it offers a license plate propagating the message, fighting terrorism. >> there's an easy answer which is they don't have to get into the business of selling space on their lance plates to begin with. i if you don't want to have the al qaeda license plate, don't get into the business of eye louing people to buy a space to put on whatever they want to say. >> mr. chiefity that would be an answer to all of the government speech cases, and i assume, for instance that the court didn't say, well, if you don't want to accept the monument, just don't allow monuments and that's because government -- it allowed the selected messages to propagate and is allowed to speak -- >> that might be because they've done that since the time of the pyramids or whatever but they haven't had license plate messages since time immemorial. so maybe that's why they shouldn't be considered just like the monuments. >> mr. chief justice, don't mean to
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suggest they're just like the monuments but it's still a fixed medium, and a tangible message is being displayed to a captive audience, as the court recognized in leeman. and in those situations the government is entitled to select the messages it wishes to propagate and are going to be close the identified -- >> identity rather have the license plates than the pyramids. i don't know that we want to drive texas to having pyramids. >> justice scalia, we also want to retain our license plates. >> that shows what this case is about. the respondents want texas to place itself stamp of approval on the confederate battle flag through license plates and texas doesn't have to make that judgment. >> i don't want to beat a dead horse. what's the best distinction you can give me between what you do with license plates and billboards, a soap box, an official state web site where people can put up a
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message they want, subject to state approval? if we were to write an opinion that tried to draw a distinction between the license plates on one side and those other things on the other side, what we say? >> the very first thing is texas has its name on it -- >> it has its name on all the other things. >> in this situation we have exercised selectivity and control as my previous answer addressed. also, we market this program to the public, saying specifically that no one is entitled to whatever design they want. rather, the board of the legislature has to approve it. that's the final line of the joint appendix. so this is not a situation where out in the world, if you see a soap box in a park, that you would wonder, if this the government speaking or not the government speaking? is the government abridging traditional spree feature rights? is this a case where texas wants to maintain and has maintained control of what it says on license plates, and respondents -- everyone remains free to speak in all sorts of
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ways, speeches, leafletting -- >> i don't think you answered justice alito's question in every park you need general lay permit to do certain kinds of speech. so the government controls that permit process, and tells you that it can say no. so, why is that different in the situations that -- it can't me merely control is what i'm saying. the ability to veto. because that would then give you the ability to veto -- you could create a program in every public forum that basically controls in the same way. >> justice sotomayor, there's a difference. we need to be clear about what approval means. if approval means access to a forum, and it's not government controlling every single word of the message then i don't think you have government speech. if it's simply you have a demeanor. >> have we held you can deny access to a park or to a forum
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on the basis of the content of the speech? >> content-based regulation -- >> absolutely. access on the basis of content. a different situation entirely. >> justice, that is correct. we are denying access -- >> mr. keller, one concern that raises -- this goes back to what justice kennedy said -- is that outside the traditional area of streets and parks, this is a new world there of all kind of new expressive forums being created every day. and as those come into play, as long as the state says, hey, look, we're going to regulate everything for offense, we're going to keep anything offensive out of this expressive forum, it does create the possibility that in this new world, with all these new kinds of expressions the state will have a much greater control over its citizens' speech than we have typically been comfortable with. >>
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that's right, justice kagan, and i think for all of those reasons a anywhere rove ruling -- a narrow ruling in this case would possibly be a beneficial way to go. >> do you know of any other expressive fora opened by the state, manufactured by the state, that a have the said's name only it as license plates do? if there are lot of -- >> this is a unique -- >> what can you tell me to help me, which might not help others, that i don't think these categories are absolute, think they help but they're not absolute. so i would ask the question first, this isn't government speech in common english. it is the speech of the person who wants to put the message on the plate. the plate is owned by the state. the state says, we don't want certain messages to be displayed. and my question is,
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why? why not? what is the interest that the state is furthering in keeping certain messages off the plate? >> justice breyer, the state -- >> you have the republican example, democrats, not every interest is a justifiable interest. some are and not some are. that's why i ask my question. they keep some off and let some on. what is their interest -- which are the ones in i'm asking a factual question. why have they kept off the ones they kept off while letting on the ones they left on? >> justice breyer -- >> they have no interest at all in making such a distinction then i think since speech is heard a little, they ought to lose but if they have a justifiable interest, since you can put the bumper sticker next
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door, think they win and therefore i'd like know what their interest is. >> the state of texas' interest is propagating messages that show the diverse backgrounds, educational backgrounds, products of texas -- >> yes. no, i'm -- >> texas each one of those interests that they allow to be put on the license plate, they like texas hamburger joints, and they probably would not approve a chicago hamburger joint being on the texas license plate. they like some of these messages, others they don't particularly like. am i right? >> i'd like to get my answer. i'm asking you, what is the interest in texas and why does it keep off the messages it keeps off? >> in this particular example -- >> no, not just this exam. there are a set of things they've kept off. why? >> justice breyer -- >>
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don't try 00:25:04 unidentified speaker to general rules itch think the justice is asking you for a specific. why would you -- >> justice breyer, i'll use the dps trooper foundation plate that was denied. texas didn't want that on he license plate because it was concerned if a motorist were pulled over, that then the the police would see -- >> look, i can think of many reasons i could make up. man they want to keep controversial political messages off? i'd say they have an interest in that, in suggesting to people, texas doesn't sponsor this -- i just want to know what they really are, and now you have said one. what was the one you just said? >> the transportation -- texas dps troopers foundation. >> you're on the license plate approval board. what standard do you follow? when do you grant a request and when do you deny? what is the rule. that's what justice breyer is
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asking. >> in texas regulations provide the board can deny those that might be offensive or for any reason established by a rule -- >> then i think they lose. the reason they lose is because i don't see the state can come in and say we keep off a private message and we'll tell you the reason later. we can do it for any -- any reason we want. you're hurting speech and i don't see texas' interest in saying we can keep it off for any reason we want. that would be the republican democrat, too. i'm saying questions. but i think you have to have some kind of legitimate reason for keeping off -- doesn't have to be much. it could be just a little -- >> texas can have legitimate reasons for not allowing -- >> why don't you tell us what they are. >> i think that would be requiring something like a formal process -- >> don't assume. i just want to know what they are.
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texas does not have to associate itself with messages that it doesn't want to and finds offensive. and because texas has given that explanation here, we know that. many times government officials speak and don't disclose shire motives and that's -- >> except texas did and now full circle back to my first question. justice -- it said this message would be offensive to maybe people so that's -- to many people so that's -- if the message would be offensive to many people, that's the standard they're applying. ask isn't that too broad a discretion? >> no, the fact we have that much discretion confirms this is government speech. mr. chief justice let me reserve the remainder of my time. >> thank you, counsel. >> mr. gorge. >> mr. chief justice, and may it please the court we're here representing the sons of confederate
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veterans because they wanted to have a license plate to raise money and in fact for the state of texas to keep up monuments which was the purpose of their whole process in this case. and the state of texas has gone about issuing an open invitation to everybody to submit to them public designs for license plates and to create and -- thus created a limited public forum for these license plates. >> can texas itself formally, let's say, by a joint resolution of the legislature, endorse the grand
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army of therepublic and not the son's the confederacy. >> the legislature can endorse anything it -- >> can the legislature endorse austin hamburgers dish. >> the legislature has created a confederate heroes day and people on my side of this -- this side. >> what about american heroes. >> the government created a holiday for people -- for juneteenth we the slaves were free. >> why does this sncc your craw when it's on a license plate but you acknowledge texas can do the things so long as it's texas speech. the only question here is whether this is texas' speech or not? if it is texas' speech all of these things can be said, can't they? can't all of the things on the lance plate -- >> texas speech by itself
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and is not joint speech -- >> doesn't seem like a very significant issue. >> well, if that's -- >> what's what we are concern about. as long as texas says it's okay bit if you put it on a license plate, what don't understand what the theory is. >> the state has created a very successful money-raising program in which it solicits people to come in and submit their design for their license plate, so they can -- they have to submit the design, have to put up some money to make the plate, and then the plate doesn't ever get published to anybody until the person -- somebody ordered it from the -- >> suppose the message that the applicant said we want this design, and the design is the swastika. is
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that speech that -- whoever is in charge of the license plates do they have to accept that design? >> i don't believe the state can discriminate against the people who want to have that design -- >> it has a swastika and somebody else wants to have jihad on my license plate. >> bigin -- >> jihad. >> jihad on the license plate can be -- there's obviously a district court from ohio in which infidels was held to be -- >> what is your answer in this case as to justice ginsburg's hypothetical, yes or no? must the state put the symbols or messages on the plates at the request of the citizen. yes or no? >> yes. >> how about make pot legal? >> say again. >> make pot legal. >> yes. >>
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that's okay? and bong hits for jesus. >> yes. >> the you're arguing for the opened of texas specialty plates. >> i couldn't make a better argument in that direction. >> we have got along about it for a long time -- >> but in a way your argument curtails speech. only if you prevail, you're going to prevent a lot of texans from conveying a message. you have to agree with that. >> i would -- if the state continues to use the same standard, which is it might offend anybody, the state can deny the plate. if that's the standard, then the -- and they exercise their discretion
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on the statutory standard that it might offend somebody, you -- >> you have no alternate standard in order to have a proper or solution that seems wise for justice ginsburg's hypothetical. you have no standard. >> the answer to having a standard that controls people's speech is that the standard has to be pretty low hanging fruit, as -- and the christian law students association college of hastings vs. martinez, justice alito in the dissent for the centers in that case said that offensive speech is something that speech that we hate is something we should be proud of protecting. >> that in that context. >> you say they can or they cannot. have a standard which says we're trying to keep offensive speech off the license? >> as long as
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-- >> yes or no. >> -- offensive is in the eyes of the beholder, of course. they can't have that. >> can or cannot. >> cannot. >> i see what you're saying. but if i were to go back to sort of the basic underlying thought here, is speech heard? >> yes. >> the answer is, yes. the private speech is somewhat hurt. a lot, put up a bumper sticker. you can't say a lot. how is it hurt? you get the official imprimatur. is there something to be said for texas? yes. what they're trying to do is to prevent their official imprimatur from being given to speech that phones people. people don't like it, put up a bumper sticker. we have two interests in opposite directions and many, many cases. we try to weigh those things when the other things don't tell us the answer, and i guess -- i don't really see the big problem that people who are putting up with speech, even
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the texas considers offensive, put up a bumper sticker. what's the problem? >> well, i -- the culture of creating specialty plates began in texas in 1965. we have been doing this and we have gone bonkers with people buying these things. there's 50,000 people with the -- >> that's a lot of money, isn't it? about $8,000? >> say what? >> is it about $8,000 to get a plate? >> i think it's more than that. and that -- >> i have a different question, which is -- i actually do think this is hybrid speech. it's both government and the individual speaking at the same time. but that goes back to what justice scalia said we said we can't compel the individual to put something
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on their license plate that they disagree with. >> we have that case. >> so why isn't the reverse true for the government? if you're going to ask me to put my name -- >> because -- >> the law requires it. the state's name on a license plate, why can you compel us to do something we don't want to endorse? >> the re -- >> why shouldn't it work both ways when it's -- >> the reason is that this has become -- and it's the numbers -- it's become a limited public forum for putting up messages -- >> how do i know which is the government's and which is only the individual's? i wouldn't have known that -- that pro anything was sponsored by some states and not others. or endorsed by some states but not others. how do i
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know that a particular license plate the government doesn't endorse? >> you can't tell whether the government wants your speech in advance in this program. you have to submit what you think you want, and then the -- >> that implies to a certain degree of approval. >> of course there's approval. just like approval for someone to speak in a park. the columbus, ohio case, where but that's brought it earlier. you have regulations for speaking in the park. you can't have content-based regulation. this is a content-based. this content, the state doesn't want. >> and they have a standard that is -- that the lowest common denominator. if any person could be offended, they can deny it. that is their standard. >> it would be offensive to many people. >> no, ma'am, i think the statute says actually, any person. >>
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of course, mr. george, if you had a standard like that in a case in a normal case where we were regulating private speech of course we would find that imper miss illinois. but the question is whether this is a very different kind of context and let's go back to i think justice scalia said about the nature of license plates. i think there's a clear regulatory purpose here. it's the government that actually makes the license plate. i think the license plate continues to be public property, if that right. like you have to return the license plate. it has the state's name on it. it's clearly the official identification that the state gives with respect to a car so why doesn't all of that make this a very different case from the typical forum cases that we usually address? >> well, the reason is that we
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do have hybrid speech and they opened up and created this billboard, as justice alito said. they created a billboard opportunity, and they have since they can make everybody have a license plate they said we're going to create a billboard opportunity, and put messages -- let you put messages on it and pay us money for using our billboard. that's what they've done. then they say to some people, if i don't like your message because you're a republican or you're a democrat or you are -- you want to say mighty fine burgers instead of whopper burger, they can do that. that's sort of arbitrary control of speech based upon a standard that it might offend anybody, is they either need to get rid of the program or open up the program to just everybody else, and if somebody publishes a speech they don't like, justice o'connor in the thomas vs. ohio
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case suggested you might put a number on it from the klu klux klan, put the cross on the hill. >> i asked my question before because i wanted an answer. i'll try again. it was -- i'm trying to get rid of all the conceptual basis here. you just go back -- forget the public forum, et cetera. go back to look to see, is speech being hurt? and the answer is, yes. but not much. because they can put a bumper sticker. and you look at the other side of it and you say, does the state have legitimate interest here? and the state says, yes. -under interest is that there are messages we like, messages we don't care about and messages we don't like, and we have a system for keeping the last off because it is the government speaking, which represents the citizens, and the citizens do -- it's their government and they don't want just in the example justice scalia gave, to have their government
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associated with messages that this commission doesn't want. and maybe there are limits on that but that's the basic idea. now, i think you would say harm to speech, we see the other, da dow da -- dah, dah dah. what your response. >> the response is the forum has been created -- >> forum. i can't tell who a license plate is a forum or not a forum or a three-part test. i can't get that. i'm trying to go back to the basics. >> one of the ideas that you have articulated and others on this court is what would the reasonable observer believe this was? for example, the -- would they believe that the speech is the state's speech or would they believe it's the person who bought the plate because there's no -- nothing
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gets communicated -- >> how about both? how about both in answer to that? it is the state's license plate, has texas on it in big letters. yes, we have to approve it. yes, we approve a lot but there's some we don't approve because it's our speech. it may be the speech itself but it is our speech. >> both those are state created and they charge more money -- >> but answer the hypothetical. justice scalia said first colleges, next scenic places. >> they can actually -- >> have the money. and suppose there's some little town that
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thinks it's really scenic and there's a way to petition to get on this list. going? at some point, if you have just a standard state plate, of course that's government speech. if you have 5,000 different variations that people can create for themselves, it becomes a lot harder to say that's government speech. so where would you draw the line? >> my view is that
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there's some little town that thinks it's really scenic and there's a way to petition to get on this list. you see where i'm going? at some point, if you have just a standard state plate, of course that's government speech. if you have 5,000 different variations that people can create for themselves, it becomes a lot harder to say that's government speech. so where would you draw the line? >> my view is that when the people get to create a message themselves, and then an organization in this case create the
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message for themselves, and then the people who look in the catalogue, pick out the license plate that they want, and put it on their car, then the speech is the speech of the person who communicated it -- >> my problem with this is how do i know? there are three categories of plates i understand. there's the official state plate there are specialty plates created by the legislature, and there are specialty plates created by an individual. how do i tell the difference between the legislative plates which are government speech, and the private plates? do i need to? what i do know is what i said at the beginning. it's both people speaking, and i think both people endorsing each other's message in some way. why should the government be compelled to accept speech
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it rejects because it thinks it's wrong? >> in the first place -- >> does it want to be associate with directly. >> in the first place, the way people pick out plates, there's a big, long catalogue with 400 different organizational plates, 480, and it gross every day. of organizational plates, and people pick them out of a catalogue, out of a web site and pick the one they want to pick, and then they put it on their license plate. the communication of the information on the license plates actually is controlled entirely by the people who pick the plate. >> but what aboutity alito's hype the -- hypothetical. suppose the state by itself has ten messages 20, messages 200 messages, 2,000 messages, and you can choose, but the state makes up all the messages and gives you
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all the choices. result -- what result? >> the result is if the state has all the messages and picks all the messages and then the people who it sell thursday plates to -- >> i know that's the result of the hypothetical. i want to know the legal result, the first amendment answer. >> well, the state can design all kinds of license plates that it wants to choose -- >> dot that mean as i proposed and justice alito's question, consistent with the first amendment or not? >> it is not first -- the individual submits -- when other people submit the design -- >> that's not the hypothetical. the hypothetical is the state has 5,000 and makes them up and you can choose. is there a first amendment violation. i don't believe if the state does everything, then it's the creator of the message, and the speaker is the driver. >> what happens if private people could submit messages but they all had to go through the legislature. >> my view is it is much more difficult case for us i the legislature passes a statute because that is a legislative act and a clear act of the -- >> what's the difference, then? if you
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think that would be all right, texas has said, the dmv does it, not the legislature, different branch of government but it's government just the same. >> i understand that. the issue is whether or not the -- in the cases we have court of appeals cases that don't distinguish between legislative action and nonlegislative actions and those that do. it is my judgment that the state has a greater claim making its speech when the legislature and passes the bill and the governor signs it. then the statute is clearly an explain make -- expression of the state. >> when anybody buys a license plate -- >> going back to that for a second. i take it that if i object to the message on the new hampshire plate, live free or die
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have a right be to disassociated with that. >> yes. >> well, if the state, which represents many people in texas, doesn't want to be associated with a particular message, why doesn't it have the right to say, we don't want that on that? we don't want that association? >> because -- >> the state represents x million people. they don't want to be associated with this message. >> i understand -- >> what's the difference? >> the difference invite people to make their -- they charge people and have them pay for the manufacture of the license plates by giving them the chance to design a message. that's what they do. they -- the people who come up with these things, they pay the front of-end costs, put up $8,000
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collateral and it is a money-making scheme they use. the fact that they choose to apparently twice in history, -- there may be more but we can't document anymore -- ever turned anybody down, this is not a forum which people actually -- they make any decision besides an economic decision, factual matter, that's what happens. >> counsel, can i ask you a somewhat technical question. do you have an objection to the materials that your friend has cited from outside the record? >> to the extent he has cited issues relating to the other design, i do not have an objection to that because i think it's -- >> it's the extra record materials are accurate.
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>> i think almost certainly accurate. since we filed our brief, and i -- the fact we have gone from 350 to 480 organizational designs since the case was tried, was not in the record either but i don't doubt that he -- he sells a lot more organizational plates since then, and they keep a better tally than we do. >> what is your -- the choice that texas has -- am i right -- is nat your view, if they are going to have these vanity plates, have to be open to everybody, or they can set the program down and nobody gets vanity plates, but maybe if the legislature passes a law or laws saying this plate is okay that might be okay. so what -- if it is the choice between
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everything or nothing with the exception of what the legislature does is okay? >> i believe that the best analysis is the legislature or the motor vehicle commission discriminates against people's speech on the basis of the content of the speech that is subject to serious first amendment concerns and is probably illegal although there may be some exceptions to that. that's what i think the better rule is. but we have conflicts in circuits about that, and we have not -- this court has not addressed -- that is not this case but i believe it is an issue -- >> mr. george, could i just take you back to the chief justice's question for a moment and just make sure i understand it. mr. keller has indicated that there are a number of other occasion's in which the tate has disapproved plates on the ground offense. do you have any objections to those
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representations? >> to the extent that it were done on the grounds of offense, i do because he has one that i can -- that we have verified and that one is that there was a concern about danger on the drivers thinking that somebody's state trooper plate made them a state trooper. >> what if the argument were not simply offensive but higher degree, that incitement or likely to give rise -- i think someone driving in texas with a swastika is likely to be treated by public violencisms the level of the state interest at all pertinent no your position? >> well, this court's law on incitement going back to brannen berg viewers ohio and the klu klux klan rally this court decided was not incitement
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is pretty thin at this point in our history because i don't know what the rule of incitement would be today. >> mr. george, just the worst of the worst, whether it's the swastika or the most offensive rate epithet and if that were on a license plate where it is provoking violence, somebody is going to ram into that car. >> i don't think people -- the government can discriminate on content. they can put on the license plates the disagree with. this is not the state speech. and big orange letters. and this claim that speech. perfectly legitimate legitimate. >> where is that going fit on the license plate? >> but that's -- you can put -- we have texasation routh reputation on the district of columbia's license plate and that's a political message. they can put -- >> your police is if you prevail the license plate can have a racial slur.
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that's your position. >> yes. >> i don't think there's any consistent position otherwise, although the state can disclaim it undowddedly on the same license plate. >> do you have to put the texasation without representation on your d.c. plate? or can you ask for a clean plate? >> i haven't -- well, i'm -- i don't live here but i believe it's required. >> if somebody objects i guess it's like live free or die, right? >> they can put it on -- tape it over. but you can put -- i'll just leave the disclaimer idea -- justice o'connor came up with that in her concurrence in the columbus, ohio, klu klux klan cross on the hill case and i thought that was a pretty good idea. that we have disclaimer when you don't like the speech. and you don't believe it's
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appropriate. the state can do that. and i think that's largely part of the answers. this is not -- certainly not purely governmental speech because the action of the state is only approval. as to the pleasant grove city of utah case, monuments are in fact unique circumstances. this court had decided perry versus -- norton versus perry years ago involving -- justice breyer put a map of the state capitol grounds with all the monuments in it. those monuments -- when that case was decided, been there over 100 years and the monument in question has been there 45 years. mon. s are different than any kind of
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speech in the bark because of the nature of the creation. you couldn't -- you would have monuments every seven feet which you can't do that. and that case turns on those facts and i believe it is absolutely correctly decided. i'm also convinced that the jonas vs. marking board was correctly decided because it started with a statute passed by congress telling the department of agriculture to do something, marketing material, have it submitted back to the secretary of agriculture, let him approve it, and then go market it and level a tax on imported beef to support it. that's all government speech. >> do you know how much money texas makes from this? >> i don't have that -- it's not a line item in the budget but lots. >> that's really all this is about, isn't it? >> yes. >> that's why texas is in the business, and so people get to -- they like what
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they're saying a and they don't get to do business with them when they dope like what they said. >> thank you, counsel. mr. keller, you have three minutes remaining. >> you have limited rebuttal time. die have one question. you were asked the question about the republican and the democrat distinction you. said there might be -- there is a first amendment standard you can use? to deny that plate?... it would not be allowed under other provisions. if i can suggest a way to avoid the billboard problem. when the government has its name on the speech and when it is part of a regulatory process
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or a program of the governments and there's formal notice and comment and there's a public vote and no abbridgement of free speech rights which is this case, i think that's government speech. to address some of the other interest that stsm has here. texas wants to prevent confusion, misrepresentation, promote safety, celebrate the diverse interests that the state has. you're absolutely right. even if this is hybrid speech and it does take two to tango. that is still government speech. all of this court's cases on government speech has been that posture. for wrun matter, all of our scrites in our brief to title 43 of the code has been renumbered since the filing of our reply brief but the substance is all the same. and this is not just about texas making money although texas does make money. this is about the state of texas not wanting to place its
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stamp of approval on certain messages. and a speaker is not entitled to the imper mat tur of the state of texas on whatever message it wishes to put on a license plate. thank you. >> thank you counsel. the case is submitted. >> next, q&a with author eric larson talking about his latest book, dead wake. the last crossing. and live at 7:00 a.m. your calls and comments on "washington journal." >> today president obama delivers the key note atdress at the kennedy institute for the u.s. senate. other speakers include joe biden, elizabeth warren and charlie baker. the institute will chronicle senator kennedy's time in the congress and includes a full scale replica of the old senate
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chamber. in 2005 senator kennedy took c-span on a tour of his capitol hill office. here's a portion where he talks about the history of the office and the capitol building. >> maybe close to 20. i can remember the senator from maryland had it and i remember coming up one day and seeing this and i said if i ever last here long enough. and one of my favorite parts is this fireplace because it goes down to the first floor the whole fireplace right behind those bricks there, it goes directly to the first floor and it's where the british soldiers lit their torches in the war of 1812. and then went down to the white house and dolly madison, president madison's wife, left the white house 45 minutes before the british soldiers arrived there. with james madison's notes of
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the constitutional convention which were the greatest set of notes in one arm and the gilbert stewart painting that hangs today in the east room under the other arm. and she left. and the british soldiers came in. there was food that had been prepared. they ate the food and they torched the white house and it was burning dramatically and the storm came and put the fire out. otherwise we wouldn't have had a white house. then they came up here and they burned this building down with all but a handful of rooms which have been preserved obviously it's all been restored. but this has a very important -- jouven stairs is the majority leader's senator frist. we can't hear anything through the old fireplaces as they say. just opposite is a picture of my grandfather who was honey fitzgerald thigh called. he was the first son of irish
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immigrants that sort of was elected to the asking of the united states in 1896 the first irish catholic democrat from new england. and my mother could still remember the names of the horses that brought him to the railroad station black hawk and old boy and big red. and they brought them to the railroad station. and he had three terms. and his -- most important contribute yng i think was the fact that he saw the uss constitution sinking the great ship that was so successful in the war of 1812 and fought such extraordinary sense -- brought such extraordinary sense of hope to americans in the battle with the british in the war of 1812 and it was sinking and he had it brought down to boston and restored for the first time. it was restored in the 1930s. and then after three terms he went back and was mayor of
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boston and he threw the first pitch out in fenway park in 1912. and the red sox won the world series that year. so it's in the family the boston red sox and i hope many of the people that have a chance. and right above grandpa fitzgerald is daniel webster, of course one of the great senators of all times. he of course was an extraordinary not only orator but extraordinary senator and extraordinary secretary of state. and marshfield, massachusetts. and he was one of the five that was selected by president kennedy in the reception room. our reception room here in the united states sflat is basically modeled after what exists in the british system, where people can come and send a note in to their member of
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congress of senate and out should come their senator when they send it in there. and people do. they -- we all do. but in that chamber, in the early 1950s, when john kennedy was first selected -- when, was elected to the united states senate he was asked to head up a group of senators to select the outstanding senators. and daniel webster was selected . >> the following ceremony for the u.s. senate with president obama and vice president biden. today live at 10:00 a.m. eastern on c-span. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2015] captioning performed by the national captioning institute, which is responsible for its caption contents and accuracy. visit ncicap.org ♪ >>this week on "q&a," our guest is erik larson, out with his new book, "dead wake: the last
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crossing of the lusitania". the ship was downed in 1915 on route to liverpool, england. with over 2000 passengers and crew on board. brian: erik larson, your new book, "dead wake" you start off first sentence, on the night of may 6, 1915 as the ship approaches ireland, captain william thomas turner makes his way toward the first class lounge. what are you talking about? erik: this was the night before the lusitania was torpedoed. the next day, the ship was going to enter the so-called zone of war declared by the german navy. the water surrounding the u.k. had been designated as a zone of war.
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so, the night before, captain turner was going into the lounge to talk to passengers during the intermission for the nightly talent show, one of the features of transatlantic voyages. and he had some sobering news, but also some comforting news. he wanted to, first let everyone know that they were entering the war zone the next day, but the good news was that he said that they would be comfortably under the protection of the british navy. the royal navy. brian: and where they? erik: no, it turns out they weren't at all. brian: and this is 1915? may 6, 1915. what is going on in the world? erik: what is going on in the world is war.
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america is not in the war. the war broke out in august of 1914 and very quickly the war has proven to the world that it is going to be a very different sort of war than anything that came before. it had already come to involve civilians. the german army executed civilians in belgium. there were air raids over britain and shellings of coastal towns by the german navy. things were darkening and changing. lethal poison gas had been used for the first time on the battlefield. in washington, we had president wilson, very much a lonely grieving man. he had lost his wife of many

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