Mimi Kennedy Takes On the ‘Surrender Rule’: Scrutineers, Part III

Mimi Kennedy
Mimi Kennedy attends the 25th Annual Critics' Choice Awards at Barker Hangar in Santa Monica, CA on January 12, 2020. Photo credit: © Mandy Moore/DPA via ZUMA Press
Reading Time: 17 minutes

In a year when 50 percent of voters or more are expected to vote by mail in the general election, a little-known issue could require millions to vote by provisional ballots.

In this episode of the Scrutineers Series, Emily Levy interviews long-time election protection activist Mimi Kennedy, who is currently working on nationwide research for voter education to prevent disenfranchisement meant to thwart voters unfamiliar with mail voting rules in their county and state.

In this interview, Levy and Kennedy discuss “the surrender rule,” a term coined by Kennedy outlining the problem that occurs when voters who are listed as having been sent a mail ballot show up to the polls to vote in person. What at first may sound like an insignificant administrative issue could actually change the outcome of elections this year around the nation.

As a participant in Los Angeles County Registrar of Voters Dean Logan’s Voting Systems Advisory Panel for the new publicly-owned system deployed last fall, Kennedy helped win the argument for a paper ballot, independently counted from any machine that produced it, against a strong push for internet and phone voting.

The resulting ballot-marking devices (BMDs) are controversial, yet the system addressed some of the problems specific to the geography and population of Los Angeles County, the nation’s largest voting jurisdiction.

This episode was recorded on May 21, 2020. Since that time, Kennedy and colleagues have launched the election information website 2020 Voters’ Calendar

To follow Kennedy’s mission and learn more, visit https://pdamerica.org/.

Mimi Kennedy is an actress best known for her current role on “Mom” as Marjorie, a veteran 12-step sponsor, and as Dharma’s hippie mother in the 90s sitcom “Dharma & Greg.” In 2004 she helped found Progressive Democrats of America as its first Advisory Board Chair, and after John Kerry’s refusal to challenge the Ohio fraud that gave George W. Bush another four years, she devoted herself to election issues.

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Full Text Transcript:

Emily Levy: Welcome to the Scrutineers Series, a series of election protection podcasts designed to help you understand the risk to our elections from voter suppression to lack of security. We’ll be talking about what you can do to protect the voters and protect the votes. I’m Emily Levy, founder and director of scrutineers.org, where we’re training a fairness force to help make sure no one stops you from voting and all votes are counted accurately.
Emily Levy: I’m delighted to be collaborating with whowhatwhy.org to introduce you to real people dedicated to ensuring election results truly determine the consent of the government. I’m delighted that my guest today is Mimi Kennedy. Mimi is an actress who is best known for her current TV role on the show Mom as a veteran 12 step sponsor, Marjorie. Marjorie is the name of her character. You may remember her also as Dharma’s hippie mother in the ’90s sitcom Dharma and Greg.
Emily Levy: Well, in 2004 Mimi helped found Progressive Democrats of America and was its first advisory board chair. She was an original member of the California Election Protection Network, which was an early group working in California counties, and she helped to elect Debra Bowen, Secretary of State of California. Bowen preserved the paper ballot in California and we owe her a lot for the work that she did.
Emily Levy: Mimi helped stop the purchase of Diebold touchscreen voting machines for the Los Angeles County and blocking a tabulator that relied on memory cards produced by the voting system vendor ES&S. Much more recently, Mimi has been a participant in Los Angeles County registrar Dean Logan’s voting systems advisory panel for the new publicly owned voting system that was deployed in LA last fall.
Emily Levy: As part of that panel, she fought for a strong push for internet and phone voting and won the argument for a paper ballot in Los Angeles County that would be counted independently from any machine that produced it.
Emily Levy: The resulting system is actually very controversial, the new Los Angeles system, and we’ll talk a little bit about that today. But it does allow for the first time in Los Angeles same day voter registration, which has reduced the exponential growth of provisional ballots. Provisional ballots disenfranchised many voters and prevented their voices from being included before the results were announced of elections.
Emily Levy: In California, astonishingly activists have discovered that provisional ballots are by law exempt from the state’s mandatory audit law. So it’s very important that California has as few provisional ballots as possible because of that. Mimi is currently working on nationwide research for voter education in every state to prevent the inevitable increase in male voting in the COVID-19 era from becoming an occasion of disenfranchisement for eager operatives ready to “fort” voters. As Mimi says, ready to “fort” voters who are unfamiliar with male voting rules in their county and state. I’m so delighted to have you here today, Mimi Kennedy. Welcome.
Mimi Kennedy: Thank you. Thank you, Emily. It’s great to be here. Hello Scrutineers and anybody else listening.
Emily Levy: As the country moves to large scale emergency absentee voting, also known as vote by mail, we really need to be paying attention to the related election security concerns. And you are laser focused on one particular part of that, a set of problems with vote by mail that almost no one is talking about. Will you explain what that problem is, because I think people are really unfamiliar with it.
Mimi Kennedy: Right. The thing that I’m focused on is what I have informally called “the surrender rule”, because it did not have a name. But when I became a poll worker in Los Angeles, having been shamed into it when I was at a hearing in Sacramento trying to fight back against ES&S in our state, they asked me, “Have you been a poll worker? Have you ever been a poll worker?” Some Republican legislator that they run their panel asked me that, and then I had to say no.
Mimi Kennedy: And I remember, my face got hot. I was obviously blushing, and I thought, “Damn, I can’t be in that position ever again.” So I became a poll worker and I found that when the voters approached me, if they had VBM next to their name, and this was part of our poll worker training, I had to ask them if they had their mail ballot with them because they were…
Emily Levy: So VBM, vote by mail.
Mimi Kennedy: Yep. Vote By Mail, not Blessed Virgin Mary, I always get too… None of them would have their mail ballot. They’d go, “What do you mean?” And with a few questions, I determined that they either had been registered as permanent vote by mail by some canvasser and never knew it, or they used their mother’s address or something if they were young and a college student for their voting registration and they didn’t ever see the vote by mail when it arrived, it’s sitting on mother’s sideboard or whatever, or any number of reasons. They didn’t have it to surrender. They had to vote provisional. This ended up being a healthy percentage, maybe 8, 9, 10% of my voters. And they happen…
Emily Levy: Let me restate that and make sure that I have it clearly. So voters would come in to the polling place to vote. And if the records show that they had been sent a mail-in ballot and they didn’t have that ballot to give to you, you have to insist that they vote on a provisional ballot because there was no way to prove whether they had already voted or not.
Mimi Kennedy: That’s correct. And so the human problem here in a nationwide expansion of vote by mail is that there’s no cure for the voter who never receives their vote by mail ballot but whose record says they requested one and it was issued. Now, whether any of those things are true is a moot point once a voter is trying to vote in person. Maybe in the past, I know people must’ve been registered vote by mail without their knowledge or awareness. That was a problem. That won’t probably be the large problem under COVID-19.
Mimi Kennedy: The large problem under COVID-19 is in critical battleground states, in precincts or counties where the balance of power can be determined as we have seen the Republicans in Virginia win. Ballots of power in their state house by jimmying around with some vote ballot inspection, getting a tie, and then winning in a coin flip. The control of their state legislature.
Mimi Kennedy: I don’t put anything past election manipulators. So there might be… I just worry that people will register to vote by mail, which I think they must and they should, as they are being advocated to by a lot of the national progressive civil rights organizations. But they won’t know when to look for the mail ballot. They won’t know what it looks like. That’ll be the first time that they’re voting by mail. And if they never get that ballot, they’ll think to themselves, “Well, I’ll just go in and vote.” Well-
Emily Levy: And what should they do if someone who has requested an absentee ballot, doesn’t receive their ballot?
Mimi Kennedy: They need to know by what date they should expect to receive it. It’s like waiting for a package that you’ve ordered online. They will say: “Expect delivery by January 21st. It’ll take three to five days. Give us seven business days.” That kind of timeline is going to be critical for a voter to pay attention to. And after the deadline has passed, they need to contact the registrar. Do you know how impossible it is to contact a registrar five days before an election? The phone will ring and ring and ring and you won’t get the registrar.
Mimi Kennedy: And even if you do, what do you say? “I want you to send me another mail ballot because I didn’t get one yet.” They’ll go, “We issued it.” And you go, “Well, I never got it.” They’ll go, “Well, it’s not our problem, but okay, we’ll cancel that one and issue you another.” If you only five days to election day, when will you get it? Probably not in time.
Mimi Kennedy: Okay. Does your county have early voting? Maybe it’s time to go to early voting. If you’ve contacted the registrar and said, “Cancel my mail ballot. I’m going to vote in person,” you might have a chance to vote regular. Otherwise, you’re going to go early voting and they’re still going to make you vote provisional unless the county is updated, has electronic poll books with a live database, and then they can cancel your mail ballot maybe. This…
Emily Levy: Let me just clarify that. Some places have electronic poll books, meaning the system that they use to check on voters and whether they’re in the right place and whether they’re registered, isn’t…
Mimi Kennedy: On paper.
Emily Levy: On paper. Like it used to be, but is in a computer and so it can be updated if their mail ballot has been received. Those electronic poll books have another whole set of problems that we’re not going to get into today, but we really should talk about here sometime. What we’re talking about here today, electronic whole books really are the only way to make sure to solve this problem on election day or during early voting.
Mimi Kennedy: To employ provisional voting on election day in a situation where you are a mail voter as far as the database is concerned, but you have never received the mail ballot. Or you lie.
Emily Levy: Your description of what people should do is complicated, and it involves each individual doing a bunch of research, following up repeatedly, and then maybe they’ll get to vote without voting provisionally. And we know that it’s very difficult to educate voters to that degree and get them to follow through with something that complicated. They absolutely shouldn’t have to.
Mimi Kennedy: Right.
Emily Levy: So how do we educate the entire country about this? What do you think from an advocacy point of view is important to do?
Mimi Kennedy: Well, rather than give you a clean, cold answer, let’s discuss this for a minute. The other side has made our job much harder by choosing to say: “Vote by mail is fraud, rife with fraud, and you don’t want to do it, and it’s the end of democracy if we let you vote by mail.” Our side is saying: “You absolutely have to let us vote by mail because we don’t want to stand in line and come home with the COVID virus and give it to our entire family and exchange it and cause an outbreak.” And by the fall, there’s going to be some cold weather and it’s going to be that season for the virus. Again, we need vote by mail.
Emily Levy: States have different rules about vote by mail, in some places called absentee voting. In some places, excuses are required. Not everybody can get an absentee ballot or vote by mail ballot and that’s something that advocates around the country are working to change right now for this pandemic voting year. So we’re trying to get no excuse absentee voting. So everybody either is provided with a vote by mail ballot or is provided with at least an application for a vote by mail ballot.
Emily Levy: We want everybody to have an opportunity to vote without going in person and an opportunity to vote in person at the polls, if that’s what they need. So litigation is one of the things that we may be needing to do in order to get as full access to the ballot as possible this year. Then there’s also…
Mimi Kennedy: I’ll tell you the places where there’s excused states and we don’t have COVID allowed in Mississippi. Are we surprised? An excused state without COVID allowance is Texas. That’s the only thing on this… Well, wait a minute. Excused state is Missouri. What have we heard out of Missouri? Ferguson, right? Tennessee. Oh, what a surprise. An excused state. That’s about it. Now, there’s a lot of listing here, Connecticut.
Emily Levy: Excused state meaning a state where not everybody can vote by mail, and vote absentee that people have to have an excuse.
Mimi Kennedy: That’s right. You need to have an excuse.
Emily Levy: One of the limited number of allowed excuses.
Mimi Kennedy: That’s right. And if you lie on any of them just to get your mail ballot, they can come and prosecute you. Now, here’s where COVID is allowed. Obviously, the work has been done there. Connecticut, very good. Alabama. Alrighty then. Louisiana. Okay. Delaware.
Emily Levy: Where can we get this information that you are hearing?
Mimi Kennedy: This is a spreadsheet prepared by Steve Rosenfeld and I believe he’s put it up on… I have to add PDA is going to have this up, but it’s just new yesterday.
Emily Levy: I know we’re going to be putting it up inside the scrutineers.org site.
Mimi Kennedy: Okay then.
Emily Levy: And so our members will have access to it so people can come there and join for sure. That’s one option, but I think it’s likely…  Steve Rosenfeld writes for Voting Booth. So it’s likely it will be there.
Mimi Kennedy: It’ll be up there. Emily, he’s adding to it as we speak. These states were chosen by him for exploration because they have primaries from of course May 19th, which happened, but to August 18th when Florida has-
Emily Levy: I think we’re getting a little far into the weeds here.
Mimi Kennedy: Okay.
Emily Levy: So the website where Steve Rosenfeld posts most of his articles is the Independent Media Institute, independentmediainstitute.org/voting-booth. So if it’s not there yet, I suspect that it will be soon.
Mimi Kennedy: Yeah.
Emily Levy: So what I’m hearing from you is that we need to tackle this on various levels. There’s the litigation level using the courts. There’s advocacy level, trying to get rules changes. I imagine in some places that would be on a local basis and some places on a statewide basis. And then there’s the voter education aspect to it and all of those are really important.
Mimi Kennedy: I would agree. I would agree, Emily, but really the way that I approach this upcoming election is, I hate to use war metaphors, but I do feel that the voters are being targeted in a massive way. So this is, if you will, this is hand-to-hand almost combat. The voter needs to protect him or herself. So I reverse engineer, if you will, from the moment a voter is standing at the last place they can vote in front of a poll worker in person because nothing else happened for them despite the fact that they might’ve applied to both by mail. And for that, they need to have known all these other information things that we’ll try to make available everywhere.
Mimi Kennedy: But if they’re standing there, will they be voting provisional? I really want people to know from their county what will happen. In counties where they have electronic sign-in you might be able to cancel your mail ballot. I really want to know that because then we can predict what we’re going to see in provisional voting or not provisional voting. If it’s provisional voting in a state where they never audit anything and they never audit the provisional or never count the provisional votes.
Mimi Kennedy: So we need to look at those states and go, “Oh damn, it’s a battleground state that could decide the election.” These problems will become the decisive election moments.
Emily Levy: And that’s why we need people being involved, paying attention, learning what these granular issues are and coming to understand how to advocate for as many votes as possible being cast and being counted.
Mimi Kennedy: Yeah. I mean, I am sure that any conservative who disagrees with me or you listening to this, would go, “It’s not going to be that kind of problem. You’re making a mountain out of a mole hill.” Maybe it won’t be a massive problem. What I’m always saying, if it can be a problem, it might be the problem where the balance of power is at stake.
Emily Levy: Absolutely. Even a few votes in each precinct adds up to a huge number of votes across the state and it absolutely needs to be taken seriously.
Mimi Kennedy: Forewarned is forearmed. And really my audience for this warning are our friends. As a progressive Democrat, I’ve often found that the people I most need to convince are the Democratic Party, the party that I’m in who just goes and says, “Everything’s fine. Why are you bringing that up? People aren’t going to want to vote. Oh, you’re making it so difficult.” And then you get down to something like Virginia, where all the games are played and then there’s a coin toss, and now we can’t pass any progressive legislation in Virginia.
Mimi Kennedy: Although, although, I must say that people like Andrea Miller, who was the executive director of PDA and lives in Virginia, very active there, they’ve done miracles because of persistence and education. So we are starting with persistence and education nationwide about mail balloting because we have to do it under COVID-19 and we don’t want to leave any holes for our adversaries to say, “Oh, gotcha.” Provisional.
Emily Levy: Thank you. So before we go, I want to spend a few minutes on the Los Angeles voting system which I mentioned at the top has been very controversial and I know that you’ve gotten some flack from some of your colleagues about it that I’ve seen online and the system is certainly far from perfect, and there are a lot of good things about it in large part because of your work on the panel that oversaw the creation of this publicly owned election system. What I’d like to ask you is what you think is most misunderstood about this new system, either by the general public or by election advocates.
Mimi Kennedy: I would say the vote centers’ improvements which are dependent, alas, on technology. But sign-in is not anonymous, so it’s kind of like banking. Your name is on it. You can check. Voting is anonymous and it is not checkable. So I want to separate signing in from tabulation of my vote. But I think what’s misunderstood is that electronic sign in allows for vote centers. Vote centers allow for people to vote anywhere. You don’t have to get to one particular place or else vote provisional. That was the old model.
Mimi Kennedy: If you weren’t exactly where you needed to be, if you were where you voted last election, but they changed the boundaries and they do this all the time with precincts without telling you because if it falls below a thousand people. Your precinct goes away and it all changes, the boundaries change. So you need to know you did in the past exactly where you went to vote on election day, one day to do it.
Mimi Kennedy: The vote center model with electronic sign-in allows you to vote anywhere, allows up to, I think 14 days of early voting. Nobody knew about it because everybody talked about “election day, super Tuesday”, and they all went on Tuesday and they jammed up these centers because there’s only 750 of them on election day, whereas in the past we had 4,000 precincts. So people say, “Oh, that’s voter suppression. There’s so many fewer places to vote.” But they don’t realize you can vote at any of them. In the 4,000 precinct models, you can only vote at one or else so you had to vote provisional.
Emily Levy: And in Los Angeles where people work could be a couple hour drive from where they had to vote before.
Mimi Kennedy: Absolutely. And I’m telling you Latina people, Latina… Well, Latina domestic workers, caregivers that have to be on duty at 6:00am, 7:00am and they don’t get off, if something happens, you never know. And at 7:00pm, they have family. They were never able to just walk in whenever they wanted and vote exactly where they lived. It was an incredibly suppressive system, increasingly I think for people who were not as mobile as say the middle or upper middle class.
Mimi Kennedy: So that was a problem. Vote centers have made it much more possible for people to vote. But sad to say, I think my colleagues who are progressives did not make it clear enough that something good had happened and you could early vote anywhere. I don’t know. Our audience is pretty intelligent, so it might’ve been correct that they just concentrated on what the vulnerabilities and tabulation are and bitched about that because we need to have that to improve things.
Mimi Kennedy: But consequently, it was known as a disaster. Look at these long lines, but it’s because we didn’t message that there were two weeks of early voting anywhere, and this was in franchising. Now in a primary, it’s difficult because you don’t know people might drop out. If you wanted to vote for say… I don’t know who you’d want to vote for, Tom Steyer or Amy Clobuchar. Who’s the people who dropped out? Castro. “Woo, you’re throwing your vote away.” Well, not really. It would have been nice for Julian Castro to know that all those people voted for him in Los Angeles come hell or high water when they early voted.
Mimi Kennedy: So that was never to me, a decisive argument, but that’s what I think is most misunderstood. This vote center model, I think is really an improvement. And by the way, electronic poll books, I know they’re rife with vulnerabilities, but so is the whole damn statewide database leading up to the day we use the poll book. Oh my God, anybody can get into that database and change anything they want, if secretary Padilla is not more militant about protecting it.
Mimi Kennedy: I think at this point they are more militant. They know that there were backdoors in the thing. They looked for the backdoors, presumably gotten rid of them. But anyway, the day that you go to a vote center, say 20 days early, 11 days early, whatever it is, and you see next to your name that you were issued a vote by mail ballot for instance because you’re permanent vote by mail and you forgot. You can say, “I cancel that vote by mail ballot. I’m here to vote in person.” They will do it.
Emily Levy: So there’s much less provisional voting?
Mimi Kennedy: That has taken away the surrender rule in LA, which is the biggest voting jurisdiction in the United States. The surrender rule is gone. That’s huge. There’s one exception. If it says on your database, “We’ve received your mail ballot,” you have to vote provisional. Why? Because they’ve already made it anonymous. You voted. What if it wasn’t you who voted? As you can see, that’s a little fraud hole that could be stretched wide open in a precinct that might decide the balance of power of something, a school board or whatever. But those are my… That’s what is misunderstood about the vote center model?
Emily Levy: Thank you. And if someone listening wants to support your work either by volunteering or contributing, how can they do that?
Mimi Kennedy: The best thing to do is to become a member. Just sign up for Progressive Democrats of America. There will always be messages about where to find Steve Rosenfeld’s work now. And we’re a small organization, but we will have the messaging there. And I think that we dive into the details with activism and you will see some of that closer to the general election in the fall about various issues.
Emily Levy: Thank you, Mimi Kennedy, so much for being with us today and thank you for your work.
Mimi Kennedy: Thank you, Emily. I’m so glad you’ve got Scrutineers up and running. This is really important. We’re growing. We’re growing with that.
Emily Levy: Thank you.
Mimi Kennedy: Okay.
Emily Levy: You can find a rough transcript of each episode at whowhatwhy.org/podcast. You’re invited to get involved in the election protection movement by joining Scrutineers at scrutineers.org. That’s S-C-R-U-T-I-N-E-E-R-S dot O-R-G. Whether you’re a seasoned activist or advocate or have never before worked for social justice, you are welcome.
Emily Levy: Both WhoWhatWhy and Scrutineers depend on your support to keep our work going. If you appreciate what we do, please donate through our websites. You’ll find WhoWhatWhy at whowhatwhy.org/donate. Remember to check your voter registration and help others do the same, and vote in every election. Thanks for listening.

Related front page panorama photo credit: Adapted by WhoWhatWhy from New Jersey National Guard / Flickr and Scrutineers.

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