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This podcast was recorded on February 4, 2020.
Richard Hasen: “You can't have a democracy where people are not confident that votes have been fairly and accurately counted, where people think the results are somehow manipulated, where people don't believe in the legitimacy of the vote counting itself.”
VO: Rick Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. He’s one of the country’s top experts on what can go right and wrong on election day. He talks about how we can restore trust in our self-government in his latest book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy.
Richard Hasen: “We need, long-term, a total revamp … Right now is when we need it the most because we're so divided, but right now is when we're least likely to get it because we're so divided.”
VO: This is Brennan Center LIVE, a project of the Brennan Center for Justice at NYU School of Law. I’m Michael Waldman. This program was recorded in February 2020.
VO: Ricl Hasen is joined in conversation with Victoria Bassetti. She’s a fellow at the Brennan Center for Justice and the author of Electoral Dysfunction: A Survival Manual for American Voters.
DISSOLVE TO SHOW
Richard Hasen: Today felt like, I was saying it felt like November 2000 after the vote count was over in Florida before we knew who the president was. This kind of lots of misinformation floating out there and uncertainty about why there was yet another breakdown in getting election results. And yet we're 20 years after Florida, and so why haven't things gotten better?
Richard Hasen: But so far as we can tell, this was an election that was run by Democrats in the state of Iowa. It's not run by Iowa election officials, right? So they're only doing this once every four years. And they were using new technology — the smart phone app that had been tested for about two months we think — that was not shared with the Department of Homeland Security. DHS offered to give some help on issues of security. So it's not really that much of a surprise that things went south.
Victoria Bassetti: If we don't learn the lessons from Iowa and maybe from the last 20 years or something like that, what are the risks that we're facing right now?
Richard Hasen: So I remember writing a blog post on the Election Law Blog in January of 2009 when Barack Obama was being inaugurated as president. And I remarked at how incredible it was that here we had a conservative Republican president, George W. Bush, peacefully handing over power to a liberal Democratic president, Barack Obama. There's pomp and circumstance, they're meeting, they're discussing, and there's no anxiety in the public, like this is not going to go through. And yet today — I probably meet more liberals than conservatives in the circles I travel in … “Is Trump going to leave office?” This is a perennial thing that I hear all the time. And so I think it raises … People have a lot of anxiety. What a democracy requires is for the losers to accept the election as legitimate and to say, "All right, we lost. We're going to fight another day."
Richard Hasen: So if you are one of those people worried about Trump, I want you to ask yourself if Trump wins and he wins because he wins in Georgia and you believe there was a lot of voter suppression going on in Georgia, are you going to accept the election results as legitimate? I mean, there's a real question which did not exist about a decade or so ago about how we're going to have these transitions. And that's a really precarious place to be because you can't have a democracy where people are not confident that votes have been fairly and accurately counted, where people think the results are somehow manipulated, where people don't believe in the legitimacy of the vote counting itself.
Victoria Bassetti: So, confidence in the election system is in many ways the most precious resource of our democracy or of the way we elect presidents.
Richard Hasen: In my book, I talk about four reasons why trust is declining. We'll talk about lots of nightmare scenarios. One of the things we saw in Iowa was new voting technology. Well, there's lots of places where there's going to be new technology and new rules. Let's take Pennsylvania. Pennsylvania was a state, as New York was, where there was no early voting and absentee balloting was allowed only if you had a good excuse. So you couldn't just ask for an absentee ballot like you can where I live in California, you can just request it; you can even be a permanent absentee ballot voter. Now Pennsylvania is going to have absentee-by-demand, which I think is a good thing because lots of people can't get to the polls on election day, it's a way to avoid long lines and all of that.
Richard Hasen: Okay, so that's great, but now we're expecting what election officials called a “tsunami of turnouts.” It's going to be a huge turnout. Democrats and Republicans, everybody is energized to vote in this election. Absentee ballots take a long time to process. You have to check and make sure that the person who sent it in is actually that person and it's legitimate before it's counted.
Richard Hasen: So we can imagine Trump is ahead in Pennsylvania on election night and we go to overtime. The ballots are still being counted. Trump declares victory. And then we have what professor Ned Foley has called the “blue shift.” Something that social scientists have noticed, which is that over the last decade or so, those late ballots, those absentee ballots, those provisional ballots tend towards Democrats. And so it might be the Trump is declared the winner — that Trump declares himself the winner of Pennsylvania — and let's say Pennsylvania is decisive again in the election. And it turns out the election officials say, "No, it was your Democratic opponent that was the winner." And then Trump says, "No, those votes are massively infected with fraud," which is exactly what he said about late counted absentee ballots that were being counted in Florida when there was a close race in 2018 between Bill Nelson, the incumbent, and Rick Scott, the governor who was trying to get the U.S. Senate seat.
Richard Hasen: Trump says, "All right, we need to fight this." And he gets the Republican legislature to send a competing slate of electors to the Electoral College for counting. Article II of the Constitution says state legislatures get to set the rules for electors. So there might be two slates of electors going to the Electoral College, right? All of this, while social media is swirling about who the real winner is in Pennsylvania. And then how does that get resolved? Through a statute that was written after the disputed 1876 election that is internally contradictory and a mess, and through a procedure whereby the House chooses the president, not by one House member, one vote, but by each House delegation, each state gets one vote and there are more Republican states than Democratic states.
Richard Hasen: And so it's quite possible that Trump declares himself the winner, gets fewer votes in Pennsylvania, and yet is declared the president again. I mean, that's a situation for social unrest. That's just one of the nightmares that could happen and it can happen in part because of the delay. And I should have said earlier about Iowa, one of the things that was irresponsible is if you watch some of the TV coverage, the negative countdown clock on CNN. We're really impatient to get election results. We need to train people — you need to wait a few days maybe to get those election results. That's a really key thing that we need to do for the upcoming election.
Victoria Bassetti: So we all know that the election machinery in the United States is a hodgepodge. Some of it is very sophisticated, very well run. Others of it is outdated, new voting machines being put in, new rules being implemented in 2020, lawsuits swirling all over, social media exploding, a rapidly escalating public sense of fear and distrust. How do we begin to take, if you will, a step back and make it work?
Victoria Bassetti: We're going to start with voting technology.
Richard Hasen: Yes. There are lots of conspiracy theories floating around about voting machine companies and who owns them. And of course, except in Los Angeles County where I live, the voting machines are made by private companies. So there's going to be suspicion.
Richard Hasen: So what we need to do and the Brennan Center and Larry Norton and Liz Howard and the team there has been very important in pushing for what are called risk-limiting audits. Now this sounds very wonky, but the idea is whatever counting you're doing, there should be a piece of paper that you should be able to double check and make sure that the votes that are cast — the votes that are reported — match what's actually on the piece of paper. Sounds sensible, right? But we had a lot of places where they had only electronic machines where the only way you could do a recount was push the button again. Well that doesn't make a lot of sense.
Richard Hasen: Let me talk about a current controversy. So Georgia had been sued over their terrible voting technology and one of the solutions to this was to buy these new machines. So the latest round of technology are what are called ballot marking devices, or BMDs. And we're going to have a different version of them in Los Angeles County where I live, the largest electoral jurisdiction in the United States. The way this works is you look at the computer screen and you make your choices and at the end, a ballot pops out, a piece of paper. That's great. So we have a record and it'll say, "Joe Schmoe for president" and list all the different candidates — they're all listed — and it'll print a barcode or a QR code. And that barcode or QR code is what will be used for the counting of the votes because the computer can read that more quickly than trying to decipher all of those names that are going to be printed. Okay. So some people are very concerned about the barcode because you can't look at the barcode and confirm how you voted. So the way you would do that is you'd have a post election audit where you would take a random sample and you would compare the results of the computer-reported with the results that a person counting manually would get. Well, Georgia, which is buying these machines is apparently going to say that the bar code controls and that the name on the ballot is not your vote. Your vote is the barcode.
Richard Hasen: I mean, to me, that is ridiculous. Even as a matter of just thinking about public confidence, how can the barcode be your vote when you … We haven't gotten to the point where Google can implant a chip in our head that we can read barcodes. May it’ll happen, but right now we can't read barcodes. It's ludicrous to me that Georgia, after having been through all of these lawsuits and all of these questions and all of these concerns about voter suppression, that Georgia is going to move to a system where the computer code is going to be what's going to control and not ... So we need risk-limiting audits and we need transparency. We need people to explain what's going on and how they're securing the vote. And places like Georgia, if it comes down to Georgia and the vote count is with those barcodes, you can bet they're going to be people who are going to say that the votes were manipulated to help the party that was announced as the winner.
Victoria Bassetti: Now, do you chalk what happened in Georgia down to election administration incompetence or malevolence?
Richard Hasen: Well, it's hard to know. It's hard to know what people's motivations are. There's a kind of obstinance in part of it and there's a resistance to outside meddling. So Brian Kemp, when he was the Secretary of State of Georgia before he became the Governor of Georgia, he was one of the few Secretaries of State that rejected DHS help on cybersecurity in the 2016 election. Why would you reject DHS help? At one point, he accused DHS of trying to hack into the state's voter registration system. And there was an Inspector General report done during the Trump administration, found there was nothing to the claim.
Richard Hasen: It gets even worse with Kemp. In the 2018 election when he's running against Stacey Abrams — this is after he's done voter purges and done all of these things that make it look like he's trying to swing the vote towards Republicans — he is recorded as saying that, "There's going to be heavy turnout and I'm really worried about that," which is not something you want the Secretary of State to say. So a few days before the election, a private citizen, a resident of Georgia named Richard Wright, wanted to check his voter registration eligibility to make sure he's allowed to vote. So he goes on to the Secretary of State's website and this guy, Wright, was a computer … I think he was a software engineer. And he looks at the web address and he says, "If I change one or two keystrokes, I can actually see every file on the computer system. And if I change another one or two keystrokes, I can look up anybody's voter information that I want." And this is after years of litigation over the lack of security over Georgia's voter registration system, which has been widely reported.
Richard Hasen: So this guy says, "Well, what am I going to do?" He calls up the lawyers who are part of the lawsuits challenging the voter registration system, and he calls the Democratic Party's Election Protection Hotline. And he says, "There's a problem here." So the person that gets the call at the Democratic Party speaks to her supervisor who calls some computer scientists at Georgia Tech who say … They ask, "Is this serious? Is this something, should we report this to the authorities?" They report it to the authorities, and the next thing you know, on the front page of the official Secretary of State's website on the Saturday before the Tuesday of the election — three days before the election — the website that people go to find out where they should register, where they should go to their polling place, what's on the ballot and all of that, two news items from Kemp's office accusing the Democratic Party of hacking into the voter registration system. Criminal investigation, reported to the FBI.
Richard Hasen: Is that incompetence? Is that malevolence? I think it's malevolence to cover up for incompetence, but it was the most banana republic moment in the United States. Right? Here's a guy running his own election for office accusing the other side of cheating to cover up his own problems with how he's been administering his elections. So I think sometimes it's hard to tell. That's why I don't think we can necessarily focus so much on motive. We have to focus on actions and say whatever your motivations are, you need to have a transparent system and you need to have an auditable system, you need to be able to back up claims you make with facts. And I think that's the way to get at it, whether someone's motivation is bad or not.
Victoria Bassetti: So if you cast your mind back, let's say even 15 years, 20 years, election administration was boring. I sort of feel like, let's bring boring back, right? Are you going to disagree with me?
Richard Hasen: I’m going to disagree with you. I'm going to disagree with your nostalgia.
Victoria Basset: Okay.
Richard Hasen: Yes, it's true that before Bush vs. Gore, at least, people didn't pay attention, but voting systems were terrible. So one thing we know is that, from the pre-2000 period to the post-2000 period, there were something like a million more lost votes because of faulty machinery. Some of you are old enough to remember the "pregnant chad" and the "hanging chad." This is voting on those IBM punch-card; this was the state-of-the-art in 1960, right, but they were using it in 2000.
Richard Hasen: Election administration was boring. When I started teaching election law, there was no chapter in the election law casebook about election administration, because who wants to focus on the nuts and bolts? But it turns out that, in part because it's a lot harder to run an election that you might think, and in part because it sounds technical, it really got pushed to the back burner. I'm doing a five-part podcast with Dahlia Lithwick for Slate, and we're running through the different chapters of Election Meltdown. The first one on voter suppression, second episode was incompetence. And Dahlia and I were talking about, how are we going to make this interesting? Then, of course, three days later after it drops, everyone is focused on this in Iowa, and journalists are on TV and they're incredulous: "Why hasn't this been fixed?" It's like, we're not going to revamp our system totally. The question is what can we do as a matter of triage to try to minimize the chances of a problem?
Victoria Bassetti: Let's look beyond, necessarily, 2020, because the fact is is that after the 2000 meltdown, there was a bipartisan consensus on the need to beef up our election administration system. The Election Administration Commission was established; the Help America Vote Act was passed. Literally, billions of dollars were allocated to upgrading our systems. There was a true moment of bipartisan consensus that we needed to do something about it, and yet it seems to have dissipated. Is there a way of reclaiming that bipartisan consensus, that need to devote resources, attention, that sort of slog to get administration?
Richard Hasen: I think that Congress did the bare minimum in 2002 in the Help America Vote Act. This was an act that was passed after the Florida debacle, when we couldn't tell who was the real winner in Florida and it was clear that the machines were broken all over the country. The main thing that HAVA did was provide for new voting machinery, money for new voting machinery. And of course now we've gone through another round where we need more money for voting machinery, because after 20 years it's time for a new set of machines.
Richard Hasen: But Congress could've done much more. Congress, one of the things that it did was, as you mentioned, created the United States Election Assistance Commission, which I would guess maybe 10 percent of you in the room have heard of it, and all of you work for the Brennan Center. It's a bipartisan group, two Democrats, two Republicans for, I think, four years that had no quorum because they couldn't agree on who to appoint. It has no real authority other than to say, certify voting machines that are good enough to get federal funds. And yet the National Association of Secretaries of State, which is the board of the chief election officers of all the states — Democrats, Republicans — they want the EAC disbanded because they think it has too much power. They think it has too much federal power. Really. They've come out with a resolution every year, "We should get rid of it. We don't need it.” We need an enhanced federal role. We should have national non-partisan election administration, like they do in other countries that I consider to be, you know, our peers as advanced democracies: Australia, the U.K., Canada, Germany. They have professionals running their election, the voting machines are the same everywhere, we don't have partisans running our election, we don't have 9,000 different electoral jurisdictions, each making their own rules. I called in that 2012 book for universal voter registration conducted by the government and a national voter ID card.
Richard Hasen: I like to say that this united Democrats and Republicans, united them against the proposal. The Republicans hated the universal voter registration aspect, and the Democrats hated the voter ID aspect. We need, long-term, a total revamp. Right now is when we need it the most because we're so divided, but right now is when we're least likely to get it because we're so divided.
Richard Hasen: The question is, can American democracy survive the 2020 elections? And that's an open question. So I'll just give you some examples of things. The news media needs to educate itself and educate the public that delays in election results are not the results of any wrongdoing, it just takes time to count votes. Don't call a state before the votes have all been tallied. When there's a realistic chance that the vote totals could change, you need to wait.
Richard Hasen: Another nightmare scenario on election night: the day before the election, someone puts out a deepfake, one of these synthetically made videos that shows one of the nominees, Trump or the Democratic nominee, having some kind of health crisis. There's not enough time to really vet that. Well, the social media companies might have private ... We can't have government, because of the First Amendment, government procedures … The private companies, Facebook, Twitter, Google — they need to have procedures to how to deal with this, and they're really floundering and they've kind of been all over the place in how to deal with that.
Richard Hasen: There are things that could be done to minimize, not eliminate, but minimize the risk. Given how divided we are and given how polarized we are, it's prudent to take precautions now.
Victoria Bassetti: So to go back to what we learned from Iowa. So a few of the things that we learned from Iowa, the first is what you call Hanlon's razor.
Richard Hasen: Don't attribute to malice that which can be explained by incompetence. It's a computer science, where it originates. So much of what we think of as intentional manipulation of rules is really people who don't know what they're doing. It's bad enough to call someone incompetent, but to call them a cheater is a lot worse. And it makes a big difference. Intentions matter here. Unless you can show that there was a bad intention, I think we should come in with the presumption that people are trying their best and they sometimes fall short. Paper is not a panacea, it's a necessary but not sufficient condition to trust that election results are accurate.
Richard Hasen: You look at H.R. 1, which is this bill that the Democrats put forward at the beginning when they took over in the House, which had campaign finance reform and lobbying reform and voting rights reform and felon re-enfranchisement and this whole laundry list. And Mitch McConnell says, you know, "This is socialism going to America, we're never taking this up, this is going to destroy American democracy."
Richard Hasen: And so almost every election reform issue, even election security, which should be the most bipartisan issue, has become politicized. It's gotten worse with Trump because of the concerns about foreign interference, but we're in such a polarized moment that anything that expands opportunities to register and vote is seen as helping Democrats, and then it becomes mired in partisan politics. I think it's a very unfortunate state of affairs.
Richard Hasen: Every major election day we see a report of vote flipping where somebody tries to vote for one candidate and the vote gets recorded for the other candidate. And more often than not, that turns out to be a miscalibration issue.
Richard Hasen: Now we're getting to the really sexy issues, miscalibration. So you know the touch screen, you touch it in one place and it's supposed to be recording in one place. So the machine has to be turned off and turned back on again. Right. We have to do that with our democracy as well. And maybe it'll boot back up and it'll work better.
Richard Hasen: Part of the problem also was when you have high tech machines and you have volunteer poll workers who are paid almost nothing, working 12 hour days who don't have a lot of technological sophistication sometimes, you can have problems. That's why if you give people a pencil and a piece of paper, it's … Low tech is the best tech for running elections.
Richard Hasen: It does not require you to have the lights on. It does not require you to be a computer operator. You don't have to read a barcode. So I mean I think that's certainly the best practice.
Richard Hasen: So what we need is a president who says forcefully, “Election interference will not be tolerated.” What we have is a president that not only tolerates it, but encourages it. And we didn't get to my biggest nightmare scenario. So let me just mention that one. This is the worst. Take a breath. Here it is. Worse than the Pennsylvania one I gave. It all comes down to Michigan and the Russians come in and hack the power grid in Detroit on election day. And I asked Jocelyn Benson, who's the secretary of state about this. She said, "Well, we'll have provisional ballots." But of course, if the power's out, that means there's total gridlock, right? Nobody's getting to the polling place. People are going to stay home.
Richard Hasen: There are no rules in most states. No plan B for if there's a terrorist attack or a cyberattack or a natural disaster like a hurricane on election day. We don't have a redo provision. And so we don't have procedures in place if there's a hack of our power grid. So I share your concern. What we need is a president who's going to say, "I would consider an attack on America's election infrastructure or its general infrastructure on election day to be an act of war."
Victoria Bassetti: Are there any green shoots? Are there any areas of optimism?
Richard Hasen: Well rather than optimism, let me suggest activism. There are things that you can do. One of the things you can do is you can check with your local and state election officials and find out how is it that you can observe the counting? What are the procedures going to be if there's a problem? And push if you can for legislation and for rules to deal with these kind of problems.
Richard Hasen: And when you see the media acting hysterical about having to wait four hours for results, tell them. We can all speak to Jake Tapper on Twitter, right? Just go and say, complain about what you don't like. I mean, it's our democracy. We've got to take some actions to try to keep it that way.