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A Warning from Iowa

Legal expert Richard L. Hasen discusses ways to prevent election meltdowns in 2020.

Published: February 6, 2020
Rick Hasen
©SaskiaKahn: Courtesy of NYU Photo Bureau.

And we’re really honored to be able to be joined by elec­tion law expert Richard L. Hasen, who is the Chan­cel­lor’s Professor of Law and Polit­ical Science at the Univer­sity of Cali­for­nia, Irvine. He’s also the author of several books, a regu­lar contrib­utor at Slate, and runs the abso­lutely indis­pens­able Elec­tion Law Blog.

But tonight we’re here to talk about Rick’s new book, Elec­tion Melt­down: Dirty Tricks, Distrust, and the Threat to Amer­ican Demo­cracy. In the book he analyzes key threats to the integ­rity of the 2020 Amer­ican pres­id­en­tial elec­tion — indeed, all elec­tions, not just the upcom­ing pres­id­en­tial elec­tion — includ­ing voter suppres­sion, elec­tion admin­is­tra­tion incom­pet­ence — (laughs) — foreign and domestic dirty tricks, and inflam­mat­ory language designed to confuse and divide and vex the voting public. He’s got some ideas on how to avoid the prob­lems of the last few elec­tions and to right our ship and main­tain our demo­cracy.

So please welcome Rick tonight. (Applause.)

And before we start, Rick, I thought I might ask you to lead us all in the elec­tion admin­is­trat­or’s prayer.

RICHARD L. HASEN: Oh. Great idea. (Laughter.) Although I should say before I say that that I did an event last night at the Campaign Legal Center in Wash­ing­ton, DC, and there was alco­hol there. And I think that would have been appro­pri­ate for this discus­sion we’re about to have. (Laughter.)

So the prayer is: Lord, let this elec­tion not be close. (Laughter.) That’s the best way to avoid an elec­tion —

BASSETTI: So let us pray for 2020. (Laughs.)

So, Iowa. What’s going on?

Rick Hasen Event ©SaskiaKahn: Cour­tesy of NYU Photo Bureau.

HASEN: So, first, let me say thank you to the Bren­nan Center, and to ACS, and to NYU for making this event possible. I think this is my fourth book event with the Bren­nan Center, which has always suppor­ted my work. And I think the Bren­nan Center is one of the lead­ing organ­iz­a­tions doing really import­ant work in lots of areas, but in the area that I focus on — not just issues about demo­cracy, but also issues of elec­tion secur­ity, which is some­thing that has become increas­ingly import­ant.

So what’s going on in Iowa? Today felt like Novem­ber 2000 after the vote count was over in Flor­ida before we knew who the pres­id­ent was, you know, this kind of lots of misin­form­a­tion float­ing out there and uncer­tainty about why there was yet another break­down in getting an elec­tion result. And yet, we’re 20 years after Flor­ida, and so why haven’t things gotten better? And so that’s some­thing we should talk about

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, this smart­phone 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. It wasn’t shared there. And not only were they rolling out new tech­no­logy, they were also chan­ging the voting rules by report­ing not one set of results but three sets of results. And just like you would­n’t if you wrote your first play want it to be the first night on Broad­way with no rehears­als, that’s kind of what Iowa did.

So it’s not really that much of a surprise that things went south. There were reports over the last few weeks about this app and about how people who were work­ing in the polling places might not under­stand the math they had to report or how to use the app. Some of the people could­n’t even figure out how to down­load the app, right? The people who are running this can’t down­load an app on an iPhone and you want them to use it — so that’s a prob­lem.

But add into that what we didn’t have in 2000, which is social media, which lets things go viral very quickly, lets misin­form­a­tion fly, and also allows for spread­ing misin­form­a­tion and conspir­acy theor­ies. And we star­ted seeing that, too. I was very disap­poin­ted to see not just the pres­id­ent’s campaign manager and his chil­dren suggest­ing that the vote count was rigged maybe to hurt Bernie Sanders, but now also Lind­sey Graham has come out and sugges­ted this, and I think it’s just very irre­spons­ible. So that’s a big differ­ence.

So we’re going to get results in Iowa. There were hand­writ­ten papers that had the results on them, so we will get a result. Of course, it’s going to affect the momentum and all of the campaigns. And it’s relat­ively low stakes, so this is good that it’s happen­ing now compared to Novem­ber. But I hope that today and all of the atten­tion that’s suddenly focused on this issue is a wake-up call that we’ve got nine months and we have a lot of work to do to try to minim­ize the chance of a melt­down.

BASSETTI: So if we don’t do a lot of work, 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?

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 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 that this is not going to go through. And yet, today, you know, I prob­ably meet more liber­als than conser­vat­ives in the circles I travel in: Is Trump going to leave office? You know, this is a peren­nial thing that I hear all the time. And so I think people have a lot of anxi­ety.

What a demo­cracy requires is for the losers to accept the elec­tion as legit­im­ate and to say, alright, we lost, we’re going to fight another day. So you know, 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 or people think the results are some­how manip­u­lated, where people don’t believe in the legit­im­acy of the vote count­ing itself.

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. And what happened in Iowa really brings home how quick and easy it is to see that confid­ence dissip­ate in a kind of a fog of misin­form­a­tion, of inten­tional manip­u­la­tion, of inflam­mat­ory language. And maybe you can tell us a little bit more about, is what we saw last night going to keep happen­ing?

Event Crowd ©SaskiaKahn: Cour­tesy of NYU Photo Bureau.

HASEN: Yes. Next ques­tion. No. (Laughter.)

I don’t see any reason why it would­n’t. You know, in my book I talk about four reas­ons why trust is declin­ing. If you haven’t seen it yet, you should look at a poll that NPR recently released about people’s confid­ence in the elect­oral process. And you know, almost half of the people are worried their votes are not going to be fairly coun­ted. Large percent­ages of the popu­la­tion are worried about foreign inter­fer­ence, think the pres­id­ent is encour­aging foreign inter­fer­ence. We’re so polar­ized. Social media lets things spread virally. So this was pretty tame.

So we’ll talk about lots of night­mare scen­arios. Let me give you one of them — so one of the things we saw in Iowa was new voting tech­no­logy, people don’t know how to work it, and so we have a delay. That’s kind of the best-case descrip­tion of what happened in Iowa. 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. 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. OK, so that’s great. But now we’re expect­ing what elec­tion offi­cials called a tsunami of turnout. There’s going to huge turnout. Demo­crats and Repub­lic­ans, every­body is ener­gized to vote in this elec­tion. And they’re now saying that it may take days for Pennsylvania to announce its results. In Cali­for­nia, as you know if you remem­ber from the 2018 congres­sional race, it took weeks for some of those races to be coun­ted because 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.

OK, 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 absentee ballots, those provi­sional ballots, tend toward Demo­crats. And so it might be that Trump declares himself the winner of Pennsylvania — let’s say Pennsylvani­a’s decis­ive again in the elec­tion — and it turns out that 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.

OK, so what does Trump do? Trump says, alright, 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 the set the rules for elect­ors. So there might be two slates of elect­ors going to the Elect­oral College — 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. There are more Repub­lican states than Demo­cratic states, so it’s quite possible that Trump declares himself the winner, gets fewer votes in Pennsylvania, and yet is declared the pres­id­ent again.

That’s a situ­ation for social unrest. That’s just one of the night­mares that could happen, and it could happen in part because of a delay.

And I should have said earlier about Iowa, one of the things that was irre­spons­ible is, you know, if you watched 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.

BASSETTI: So —

HASEN: I told you you need alco­hol for this. (Laughter.)

BASSETTI: Yeah. (Laughs.) OK, so —

HASEN: I’ll start with water.

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. It’s like, you know, 20-year-old computers — basic­ally, trying to write book on a 20-year-old computer. Many are in the process of 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?

HASEN: So you’re talk­ing specific­ally about the voting tech­no­logy?

BASSETTI: We’re going to start with voting tech­no­logy.

HASEN: Yes. So this app that didn’t work in Iowa, we don’t know exactly, you know, what happened with the company, but there were all kinds of rumors float­ing around that Pete Butti­gieg was involved with the company. #MayorCheat was trend­ing instead of #Mayor­Pete. And Robby Mook, who was work­ing in the Clin­ton campaign, was supposedly involved because he was connec­ted to a company. I could­n’t even follow all the conspir­acy theor­ies. And this was just over relat­ively noth­ing, right?

There are lots of conspir­acy theor­ies float­ing around about voting machine compan­ies and who owns them. And of course, you know, except in Los Angeles County, where I live, the voting machines are made by private compan­ies. I’ll see all the time people tweet­ing at me, Ivanka Trump owns all the voting machines, you know, because she invests in a company and that company inves­ted — people are look­ing for those connec­tions, so there’s going to be suspi­cion.

So what we need to do — and the Bren­nan Center and Larry Norden and Liz Howard and the team there have 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 repor­ted match what’s actu­ally on the piece of paper. Sounds sens­ible, right? But we have a lot of places where they had only elec­tronic machines, where the only way you could do a recount was push the button again. That does­n’t make a lot of sense.

But let me talk about a current contro­versy, and this is some­thing that could play out in Geor­gia in the upcom­ing elec­tion. 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, you know, Joe Schmoe for pres­id­ent and list all the differ­ent candid­ates — they’re all listed — and it’ll print a bar code or a QR code. And that bar code 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.

OK, so some people are very concerned about the bar code because you can’t look at the bar code and confirm how you voted. So the way you would do that is you’d have a postelec­tion audit where you would take a random sample and you would compare the results that 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 bar code. I mean, to me that is ridicu­lous, even as a matter of just think­ing about public confid­ence. How can the bar code be your vote —we haven’t gotten to the point where Google can implant a chip in our head that we can read bar codes. Maybe it’ll happen, but right now we can’t read bar codes.

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, is going to move to a system where the computer code is going to be what’s going to control, 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 if it comes down to Geor­gia and the vote count is with those bar codes, you can bet there are going to be people who are going to say that the votes were manip­u­lated to help the party that was announced as the winner.

BASSETTI: Now, do you chalk what happened in Geor­gia down to elec­tion admin­is­tra­tion incom­pet­ence or malevol­ence?

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, 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 when it turned out to be is that someone at DHS was look­ing to hire someone who would work for the State of Geor­gia, and that person at DHS had used the State of Geor­gi­a’s computer system to verify employ­ment status. And so there was a report that showed DHS had actu­ally gone onto the website. And Kemp said, Obama’s trying to break into our machines. There was an inspector general report done during the Trump admin­is­tra­tion that found there was noth­ing to the claim.

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, you know. 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 onto the secret­ary of state’s website — and this guy, Wright, I think he was a soft­ware engin­eer, looks at the web address and says, you know, 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.

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, you know, there’s a prob­lem here. So the person who gets the call at the Demo­cratic Party speaks to her super­visor, who calls some computer scient­ist at Geor­gia Tech, who asks, Is this seri­ous? Is this some­thing we should report 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 to find out where they should go to their polling place, what’s on the ballot, and all of that — are two news items from Kemp’s office accus­ing the Demo­cratic Party of hack­ing into the voter-regis­tra­tion system. Crim­inal invest­ig­a­tion repor­ted to the FBI.

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. 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, you know, 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, 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 whether someone’s motiv­a­tion is bad or not.

BASSETTI: So if you cast your mind back, let’s say, even 15 years, 20 years, elec­tion admin­is­tra­tion was boring, right? And some­times I sort of feel like, let’s bring boring back, right? It’s like what we really need is a little bit more boring in elec­tion admin­is­tra­tion. But there’s no boring in elec­tion admin­is­tra­tion anymore.

But I guess the crit­ical thing is that since we know there’s prob­ably no going back on this — there’s no turn­ing back the clock and getting back to that kind of wist­ful, sepia-toned version of the elec­tion admin­is­trator kind of faith­fully count­ing every vote and every­one having trust in this — or are you going to disagree with me?

HASEN: I’m going to disagree with you.

BASSETTI: OK.

HASEN: I’m going to disagree with your nostal­gia.

BASSETTI: OK.

HASEN: So, yes, it’s true that before Bush v. Gore, at least, people didn’t pay atten­tion, but voting systems were terrible, right? So one thing we know is that from the pre-2000 period to the post-2000 period there were some­thing like a million or more lost votes because of faulty machinery. Some of you are old enough to remem­ber the preg­nant chad and the hanging chad, right? This is voting on those IBM punch cards; this was the state of the art in 1960, but they were using it in 2000.

Elec­tion admin­is­tra­tion was boring. When I star­ted teach­ing elec­tion law, there was no chapter in the elec­tion law case­book about elec­tion admin­is­tra­tion because, you know, who wants to focus on the nuts and bolts. In part because it’s a lot harder to run an elec­tion than you might think and in part because, you know, 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, that’s a pretty sexy topic. You get to talk about Kris Kobach and how he tries to disen­fran­chise people, and people are excited to hear about that.

Second epis­ode was incom­pet­ence. And Dahlia and I were talk­ing, you know, how are we going to make this inter­est­ing? And then, of course, you know, 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, well, you only pay atten­tion the moment that it breaks, and then two days later you’re on to a differ­ent subject. We need resources and we need sustained atten­tion to these issues in the off-season.

So now we have nine months. 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?

BASSETTI: But let’s talk about the longer-term issue for a moment. Let’s look beyond, neces­sar­ily, 2020, because the fact 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 right?

HASEN: So I guess I’ll push back on this one, too, and say that 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 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.

But Congress could have done much more. So one of the things that it did was, as you mentioned, created the United States Elec­tion Assist­ance Commis­sion — I would guess maybe 10 percent of you in the room have heard of it, and all of you work for the Bren­nan Center. (Laughter.) It’s a bipar­tisan group: two Demo­crats, two Repub­lic­ans. For I think four years it had no quorum because they could­n’t agree on who to appoint. It has no real author­ity other than to 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 and Repub­lic­ans, wants the EAC disban­ded because they think it has too much power. They think it has too much federal power. (Laughter.) Really. They’ve come out with a resol­u­tion every year: get rid of it, we don’t need it.

We need an enhanced federal role. In the long run — and I talk about this much more in my 2012 book, The Voting Wars — my view is we should have national nonpar­tisan elec­tion admin­is­tra­tion like they do in other coun­tries that I consider to be our peers as advanced demo­cra­cies — Australia, the U.K., Canada, Germany, right? They have profes­sion­als running their elec­tions. The voting machines are the same every­where. They don’t have partis­ans running elec­tions. They 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. I like to say that this united Demo­crats and Repub­lic­ans: it united them against the proposal. The Repub­lic­ans hated the univer­sal voter regis­tra­tion aspect and the Demo­crats hated the voter ID aspect. You know, if we were design­ing a voting system from scratch we certainly would not have the decent­ral­ized meas­ure where you’ve got some­body in a small county who’s not only running the elec­tion and has to guard against cyber hacks, but is also doing five other jobs as the city clerk and is getting paid, you know, $18,000 a year, and has a volun­teer staff, and has to kind of corral people to work in the polling places.

We need, long term, a total revamp. But that’s so out of the ques­tion right now. We could­n’t even get Mitch McCon­nell to agree to the full amount of fund­ing for elec­tion secur­ity to stop hacks for the upcom­ing elec­tion. We’re certainly not going to get buy-in on a funda­mental change to our system in the short term. 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.

BASSETTI: So what’s the triage for 2020?

HASEN: Yes. Oh, what is the triage?

BASSETTI: What is it? Yeah.

HASEN: So here’s a plug for another confer­ence. On Febru­ary 28th I’m conven­ing at UC Irvine — and this will be webcast so you don’t have to come all the way to Cali­for­nia — the ques­tion is, can Amer­ican demo­cracy survive the 2020 elec­tions? And that’s an open ques­tion. (Laughter.) And we’re divid­ing into four groups: law, polit­ics, media, and tech. And after the public confer­ence we’re going to meet privately and try and come up with recom­mend­a­tions within two months in each area for things that could be done in the next, say, six months before the elec­tion to try to minim­ize the chance of a melt­down.

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 result 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.

Here’s another issue that we’re going to tackle: It’s been repor­ted that the Russi­ans broke into Burisma, into their serv­ers, and expect in Octo­ber if Joe Biden’s the nominee we’ll get some of those Hunter Biden leaked emails. And one of the things we saw from when the Russi­ans tried to inter­fere in the French elec­tions with Macron is that inter­spersed in the real docu­ments were some fake docu­ments, too. So the respons­ible media need to have some better vetting proced­ures in place and make some diffi­cult ethical decisions about whether this stuff should be repor­ted. I think inev­it­ably the truth­ful stuff is going to come out, but there’s such a tempta­tion among media to be first that there’s a risk that false inform­a­tion’s going to be repor­ted.

Here’s another thing that could happen, another night­mare scen­ario on elec­tion night. The day before the elec­tion someone puts out a deep fake, one of these synthet­ic­ally made videos, that shows one of the nomin­ees, Trump or the Demo­cratic nominee, having some kind of health crisis, and there’s not enough time to really vet that. Well, because of the First Amend­ment, we can’t have govern­ment proced­ures. The private compan­ies — Face­book, Twit­ter, Google — need to have proced­ures to deal with this, and they’re really flounder­ing and they’ve been all over the place in how to deal with that.

So I think there’s roles in each area of those who have some input into how we think about elec­tions and what creates trust in elec­tions. There are things that could be done to minim­ize — not elim­in­ate, but minim­ize — the risk. Because just like if you worked at a nuclear power plant you might not be able to elim­in­ate all risk, you would prob­ably take whatever steps you could that were within reason in order to minim­ize the small chance of a cata­strophic break­down. And that’s what we’re talk­ing about here. Because of the elec­tion admin­is­trat­or’s prayer, right — it’s going to have to be close enough in the Elect­oral College that one or two states could make a differ­ence. But you know, given how divided we are and given how polar­ized we are, it’s prudent to take precau­tions now.

BASSETTI: So I want to go back to Iowa quickly because when we star­ted this conver­sa­tion I mentioned that confid­ence is in many ways the most precious resource we have in our elec­tion system and in our demo­cracy. And it feels like we’re on a knife’s edge where the confid­ence is going to just slip off the edge, and we’re almost in a kind of a cascade of a negat­ive feed­back loop that’s just going to demol­ish confid­ence. And yet, it sounds to me like you think that the crisis is possibly going to force a reck­on­ing that may make things better. Have I got it right? Or are we just on the knife’s edge and we don’t know which way we’re going to go right now?

HASEN: Well, I think that Iowa was actu­ally a pretty good thing to happen to us right now because it’s waking people up to this issue. And you know, when people are call­ing my phone nonstop, as they were today, that means we’re in trouble. And so now’s the time to have that discus­sion.

No ques­tion at least 47, 48 percent of the popu­la­tion is going to be deeply disap­poin­ted in Novem­ber. I don’t think there’s any doubt about that. I don’t know which side that’s going to be, but there’s going to be at least 47 or 48 percent of the popu­la­tion that’s going to be very upset. The ques­tion is, how do we get them to chan­nel that into some­thing product­ive rather than believ­ing that there was cheat­ing going on? And I do think it could go either way.

There was some really inter­est­ing report­ing in the New York Times just after the 2018 midterm elec­tions. Nancy Pelosi was being inter­viewed. And she was being inter­viewed about some­thing else, but she made this comment that was buried in this story that just really struck me, which was that she knew that the Demo­crats had a good chance of winning the House back but she didn’t want to win it by three or four seats because she thought, if we win it by three or four seats Trump is going to attack the closest three or four races and try to get those results under­mined. So we have to win by a lot, right? This is kind of the corol­lary to the elec­tion admin­is­trat­or’s prayer: work for a land­slide. But that’s not a strategy to fix elec­tions. That’s a strategy to avoid the prob­lems we have with our elec­tions.

BASSETTI: So to go back to what we learned from Iowa, because as you say, maybe we’re kind of lucky that Iowa happened, right, because —

HASEN: We’re not Iowans, right? So —

BASSETTI: Yeah, exactly.

HASEN: Yeah, we’re very lucky.

BASSETTI: And we’re not — we’re not Sanders or Butti­gieg or any of the candid­ates trying to go into New Hamp­shire right now. So a few of the things that we learned from Iowa, the first is what you call Halon’s razor.

HASEN: Right. So that’s don’t attrib­ute to malice that which can be explained by incom­pet­ence. Computer science is 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. And there’s every indic­a­tion that’s what happened in Iowa.

The Demo­cratic Party in Iowa, they’re doing this once every four years. They were in over their heads. They should have taken national help or the DNC should have insisted that they not use this system. In fact, there was talk as recently as six months ago that the Iowa Demo­cratic Party wanted to allow people to actu­ally vote using smart­phone apps, which is just one of the worst ideas I can imagine. (Laughter.) So we need more control over that.

But it’s import­ant to get the message out that it’s bad enough to call someone incom­pet­ent, but to call them cheater is a lot worse. And it makes a big differ­ence, right? What do they say — that a dog knows the differ­ence between being kicked or being stumbled over? Same kind of idea, that inten­tions matter here. And 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.

Event crowd ©SaskiaKahn: Cour­tesy of NYU Photo Bureau.

BASSETTI: Do you think the media has learned any lessons from Iowa? It does feel like they have pulled back in the last 24 hours.

HASEN: I don’t know. I’ve been giving media inter­views. I haven’t been consum­ing much media. But last night it was pretty hyster­ical, I think partly because — you know, there’s a book by Eitan Hersh, who’s a professor at Tufts, about polit­ical hobby­ism. And he basic­ally says too many Amer­ic­ans are not really activ­ists in polit­ics; they watch it like sports on TV. So you’re not a 49ers fan; you’re a fan of what’s going to happen in the caucus. You know, you like Bernie or you like Biden or whatever, and you just watch it as enter­tain­ment.

And all of these report­ers go to Iowa. It’s one big party. They’re there for six weeks. It’s a rite of passage. You know, they go through the snow and all of this, and they report about it. And then they don’t get their payoff at the end. And there was a lot of whin­ing last night; that was kind of the way I took it. We want our results and we want them now. And so hope­fully the media has learned its lesson, but the first few hours I thought were not the medi­a’s finest hour.

BASSETTI: OK. We’re going to — we’re going to be going to ques­tions really soon. So those of you who have ques­tions, why don’t you start think­ing about going up there. And I just want to warn people I’m going to be strict about making sure that we’ve got actual ques­tions and that we are direct and to the point on this.

So just to ask you one last ques­tion before we turn to audi­ence ques­tions. Good news from Iowa, though: paper.

HASEN: Yes and no, right?

BASSETTI: OK.

HASEN: So it’s good that there’s paper that gives the results. And so we can look at that, and assum­ing that those papers were prop­erly kept that’s great. But some of the report­ing — and again, it’s very early; we’re still in the fog of what’s going on — was that the rules were complic­ated enough in terms of what had to be repor­ted that there were some errors in how things were recor­ded. So if the paper does not reflect what actu­ally happened, then that’s a prob­lem.

This was one of the reas­ons why I think you saw the Biden team early on saying, hold off, we’re not sure how valid this is. And what they asked for was an account­ing by the Demo­cratic Party of Iowa as to what they did, and I think that’s right. And yet, now we’re about 24 hours after the caucuses and just before I came in I saw that the Iowa Demo­cratic Party decided to report partial results. Why would you report partial results 22 hours after an elec­tion? They repor­ted 62 percent. They could­n’t wait? Is it going to make a differ­ence if it’s tonight or tomor­row morn­ing if you get to 100 percent? And with no full explan­a­tion of why that was happen­ing.

Maybe the DNC needs to do more there. But paper is not a panacea. It’s a neces­sary but not suffi­cient condi­tion to trust that elec­tion results are accur­ate.

BASSETTI: We’re going to turn to audi­ence ques­tions now.

Q: So this comes from 40 years start­ing as a ward commit­tee­man in Phil­adelphia and exper­i­en­cing polling and elec­tions in New York and Phil­adelphia and else­where. Why is it that nobody — governor candid­ate, mayoral candid­ate, Demo­crat, Repub­lican, blue state, red state — ever seems to be will­ing to simply radic­ally recon­sider what elec­tions are? We seem to try to patch the system we’ve had for 80 years with an app or a new voting machine. But we seem to want to do the voting the same way, know­ing that it seems to break down in any number of forms regard­less of the patches.

HASEN: I think one answer to that is incum­bency protec­tion. And you’re living here in New York. I mean, New York, very progress­ive state in a lot of ways, and yet having some of the worst elec­tion admin­is­tra­tion in the coun­try — the kind of elec­tion admin­is­tra­tion that if it occurred in Alabama you’d have protests that this was inten­tional voter suppres­sion. Incum­bents like the system the way it is. And I know the Bren­nan Center has been a leader in trying to get change, and we’ve got some change that’s happen­ing right now, but there’s still a lot more that needs to be done.

And the other thing that’s happened besides the resist­ance that comes, if you’re the winner of the elec­tion you think, well, why do I want to change things? Seemed to work fine for me, right? But it’s also become a partisan issue. So 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, this is social­ism coming to Amer­ica, we’re never taking this up, this is going to destroy Amer­ican demo­cracy. And so almost every elec­tion reform issue — even elec­tion secur­ity, which should be the most bipar­tisan issue — has become politi­cized. And 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, and I think it’s a very unfor­tu­nate state of affairs.

Q: Hello. I’m Maur­een Farrell. I’m asking about the Iowa primary. I was very surprised to find out that the rural counties’ votes were weighted more heav­ily than the city votes. I mean, this just seems very undemo­cratic. OK, gran­ted we have a caucus, but when you count the votes and the votes are then applied a weighted score if you’re from rural communit­ies, it just seems very un-Amer­ican. What do you think about this?

HASEN: Well, I think every four years I’ve writ­ten an article, kill the caucuses or some­thing like that. They are profoundly undemo­cratic.

First of all, Iowa itself is unrep­res­ent­at­ive of both Amer­ica and the Demo­cratic Party. But aside from that, the whole idea of a caucus, you have to show up in person at that time. We just had for the first time in this elec­tion — I was shocked to learn this — a polling place designed for voters with disab­il­it­ies so that they’d be able to commu­nic­ate and parti­cip­ate in the caucus. The first time in 2020. You’d think they would have worked that out before. You know, if you happen to be out of the coun­try — this is the first time they had a caucus in Paris for Iowa. They’re trying to keep their posi­tion as first in the coun­try. If they called it a primary and actu­ally ran it as a primary they’d have a fight with New Hamp­shire, which is also not very repres­ent­at­ive of either the Demo­cratic Party or the United States.

I’m all with you. I would kill the caucuses. You know, there was report­ing through today that Nevada was going to be using the same smart­phone app and now they’ve said they’re not. But I think the only reason they’re not is because of what happened in the last day. So yes, I agree that there are many undemo­cratic aspects of the caucuses, and maybe this debacle was strong enough that it’s finally going to convince the Demo­cratic Party that they need to tell Iowa forget it. I hope that’s what happens.

Q: Hi. My name is Vladi­mir Shokran. I actu­ally was a satel­lite caucus-goer here in Brook­lyn, New York. I’m from Iowa origin­ally. And so I’ve got my phone, been texted all day. And I thought the whole satel­lite model was one innov­a­tion they did really well on, but the smart­phone stuff didn’t work. And so I was just curi­ous how you would tackle just short­en­ing the iter­a­tion cycle between elec­tions, just because they only happen every two to four years, so these systems can actu­ally get updated and tested on a regu­lar basis.

HASEN: Well, they need to use them in other kinds of elec­tions. They need to have better test­ing. Just like I’m not an expert on cyber­se­cur­ity, I’m not an expert on soft­ware design. But there are people that are. And appar­ently, the Demo­cratic Party didn’t consult enough with them. And the vendor, who’s not ES&S but is this new company with a great name, Shadow — does­n’t that give you a lot of confid­ence? (Laughter) Shadow — resisted test­ing too. So let someone design some­thing in 2021 to use in 2024 and use it in state conven­tions. I mean, there are other ways that it could be tested where it’s not going straight to Broad­way. But you know, ideally, if you have a primary and you don’t have a caucus, you don’t have any of these kinds of prob­lems. If you can vote absentee, you have a piece of paper and that piece of paper can be coun­ted.

Q: Hi. My name is Wendy David­son and I’m very concerned about voter suppres­sion. And my ques­tion is, with the large amount of people all over the coun­try who are unhoused or home­less, can they vote? And how do they vote without an address?

HASEN: Right. So people who are home­less have a consti­tu­tional right to cast a ballot, just like anyone else — in theory, right? The ques­tion is, in prac­tice what happens? And in prac­tice lots of margin­al­ized communit­ies, includ­ing communit­ies of the home­less, have a diffi­cult time. And there have been lawsuits. There’s been a lawsuit — I think the Bren­nan Center’s been involved in this lawsuit; I think it’s been going on for 12 years — in Ohio over proced­ures so that home­less people are allowed to vote. They have to be registered and they can use some­thing like their last known address or address of a shel­ter. There are differ­ent ways that they deal with this.

But if you are some­body who’s home­less and you’re deal­ing with basic needs — you know, how am I going to get a place to sleep and food — you’re not going to be that motiv­ated to figure out how to register to vote. And so people go out and try and register that popu­la­tion, but they have so many other issues that the rate of voting by the home­less is quite low. I do think more needs to be done, and some states are better than others.

But — you talked about voter suppres­sion — I haven’t seen real efforts to try to make it harder for home­less people to vote, in part because they’re not voting very much at all. The efforts are direc­ted in other places, like at students, who do tend to vote a lot, espe­cially in college towns where the people who live in the college towns are not partic­u­lar excited about having the people who have come from Cali­for­nia or New York and gone to Wiscon­sin vote in those elec­tions, or New Hamp­shire, where there’s been a lot of lawsuits. So there’s a fair amount of that going on as well.

Q: Hi. My name is Rachel Landy. And as you may know, New York has partic­u­larly archaic elec­tion laws. And you’ve mentioned risk-limit­ing audits already. New York has basic­ally no elec­tion secur­ity laws on the books, and things like the state board is basic­ally bound to certify pretty much any machine that comes through, includ­ing the hybrid machines. We have no auto­matic manual recounts in the event of close elec­tions. If you were putting together kind of a middle-of-the-road great policy pack­age for a state like New York, what else would you include other than risk-limit­ing audits?

HASEN: Well, ideally it would be hand-marked paper ballots as opposed to those machines that print the ballots with the barcodes. So voting with a pencil on a Scantron, like you’re taking the SAT, that would be, you know, a good way to go. Rules about trans­par­ency in the process: Who’s the vendor? Who have they lobbied? Those kinds of issues. How were the machines chosen? Have a compet­it­ive bidding process. Trans­par­ency in how votes are going to be tabu­lated. The rules should all be writ­ten in advance. How do you resolve a dispute over whether a ballot is valid? I mean, there’s lots of things.

And the Bren­nan Center has produced so many reports. It’s ironic that the Bren­nan Center has helped all over the coun­try and yet one of the toughest nuts to crack is New York — (laughter) — where you’d think that there would be a little bit more move­ment towards this. But there hasn’t been.

Q: Hi. My name is Joyce Silver. And I was in Texas when Beto O’Rourke was running against Ted Cruz, and I’m wonder­ing how many machines have the soft­ware that Texas has where it liter­ally, if you voted straight Demo­cratic ticket, changed Beto’s name to Ted Cruz? And if you left out a blank for whatever reason, your vote was also changed to a GOP repres­ent­at­ive.

HASEN: So I’m not famil­iar with that. If that happened, it’s news to me.

Q: I was there.

HASEN: I can tell you that lots of times — I say every elec­tion day now, 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. See, now we’re getting to the really sexy issues, miscal­ib­ra­tion.

You know, a touch­screen, you touch it in one place and it’s supposed to be record­ing 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. (Laughter.) And you know, maybe it’ll boot back up and it’ll work better.

Part of the prob­lem also is 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 — low-tech is the best tech for running elec­tions. 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 think that’s certainly the best prac­tice.

Q: Hi. My name is Jonathan Perlow. First, thank you for shed­ding light on these import­ant issues. So we have insti­tu­tions that we expect to protect our elec­tion integ­rity, but tomor­row the Senate is prob­ably going to say it’s OK to cheat in elec­tions. The Supreme Court has kind of said hands off about gerry­man­der­ing. So I’m curi­ous as to where do you think we can turn in terms of our insti­tu­tions to protect our demo­cracy.

HASEN: So this is one of the concerns that I do have, which is that the pres­id­ent has now soli­cited inter­fer­ence from three coun­tries and he’s not even going to be censured for that. And some senat­ors have even sugges­ted either he didn’t do that, or it’s accept­able, or it’s not so bad. I think that’s very troub­ling.

In the book I talk about an instanced repor­ted in the New York Times where Mick Mulvaney, the acting chief of staff, was talk­ing to Kirstjen Nielsen, who was then the Depart­ment of Home­land Secur­ity secret­ary, and he told her don’t talk to Trump about elec­tion secur­ity; keep that below his level, right? 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. (Laughter.) OK, 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, and 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. 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.

In fact, if you’re old enough to remem­ber the Flor­ida butter­fly ballot — this was the poor design in Palm Beach County, Flor­ida, where the names were listed on both sides of the ballot that led to the so-called Jews for Buchanan vote in Palm Beach County. (Laughter.) My former boss, Erwin Chemer­insky, law professor and dean, went to court in Flor­ida and said, people were confused by that ballot, I’ve got affi­davits here I can show you. There were thou­sands of people. They thought they were voting for Gore; they ended up voting for Buchanan or they voted twice for Bush and Gore because of the way the ballot was laid out. They thought they were voting for Gore and Lieber­man. And let’s have a redo. And the Flor­ida court said, no, we can’t redo this elec­tion.

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. That’s what we need. I don’t think we’re getting that from this pres­id­ent, who’s now only going to be more emboldened by the fact that he’s getting through this impeach­ment vote without convic­tion.

Q: Just to clarify, you know, in New York we actu­ally do vote on paper ballots with pencils. They just go through a machine. They’re not coun­ted by hand.

HASEN: Yeah, sure. Right. They can be coun­ted by a machine, but you can do a recount —

Q: Right, you can, I’m saying. So what we do, you know, in New York, it’s doing what you want.

HASEN: Yes. This is recent, right? You used to have the lever machines.

Q: Right.

HASEN: Which were some of the worst machines — people liked them for nostal­gic reas­ons, but they were one of the worst-perform­ing machines in terms of count­ing votes.

BASSETTI: Yeah. We only went to the paper ballots when we got sued by DOJ, too. So anyway, yeah.

Q: My ques­tion is, we had two years when the Demo­crats controlled both houses of Congress and had the pres­id­ency, and to my know­ledge they made no attempt to update the voting rights law or anything else to try. For example, the court case that over­turned part of the voting rights law was already in the federal court and it was an easy fix they could have made to say that, well, we’re not using 1965 elec­tion results, which was the argu­ment that won over Roberts. Is there any real reason why the Demo­crats didn’t do anything?

HASEN: Well, the general reason I think why you didn’t see voting reform on the agenda was a polit­ical reason, which is that Obama was putting his effort into health care and they felt there was only so much they could do. We can say the same thing about why he didn’t reform the Federal Elec­tion Commis­sion, which he prom­ised to do, or pass mean­ing­ful campaign finance reform. Why didn’t he pass a law against partisan gerry­man­der­ing?

But on the specific point about the Voting Rights Act, I test­i­fied in 2006 before the Senate Judi­ciary Commit­tee. The Repub­lic­ans on the commit­tee, Arlen Specter and Jeff Sessions, brought in three liberal law profess­ors to come in and say that we thought the Voting Rights Act as it was consti­tuted was likely going to be found uncon­sti­tu­tional by the Supreme Court on the very grounds that the Court ulti­mately did so. And the argu­ment was you should fix this because it’s going to get struck down. And the voting rights community gambled that there’s no way that Justice Kennedy was going to strike down a crown jewel of the civil rights move­ment. That was the bet; we’re not making any changes. We proposed all kinds of fixes and they were rejec­ted. That was a polit­ical choice that was made. And, you know, you gambled on Anthony Kennedy if you’re a liberal, you’d lose seven out of 10 times.

BASSETTI: So we have time for one last ques­tion from the audi­ence. Oh, sorry, he was ahead of you.

Q: Hi. My name is Wes. My ques­tion is about people declar­ing victory, which was I think one of your night­mare situ­ations, and we saw it happen last night in Iowa with Mayor Pete declar­ing that he was victori­ous, and then kind of recant­ing, and then stick­ing with it. My ques­tion is, is there any recourse for the United States to take when someone declares a wrong­ful victory? And what would you suggest in a situ­ation where that did happen?

HASEN: Well, let me talk about a situ­ation where some­thing close to this happened, and it was just a few months ago. It was the Kentucky governor’s race. Matt Bevin, the incum­bent governor, running against Andy Beshear, the son of the former governor, so that helps when you’ve got the family name. Beshear was ahead, and the incum­bent said there were some irreg­u­lar­it­ies, I think there’s fraud in this elec­tion. And some people star­ted point­ing to a provi­sion in the Kentucky Consti­tu­tion which says the legis­lature, if it’s presen­ted with an elec­tion contest, can just over­turn the will of the voters and can declare the loser the winner.

I saw what Bevin did as a trial balloon. The fact is that Bevin was very unpop­u­lar even among Repub­lic­ans. And after a couple of days of hemming and hawing, the Repub­lican legis­lature said, show us the proof of this elec­tion fraud or concede, and even­tu­ally Bevin gave up and conceded while making a comment about how there was too much voting in the urban areas, by which he meant people of color were voting, which by his defin­i­tion was a kind of voter fraud.

So he was unsuc­cess­ful. He was unsuc­cess­ful because he didn’t have the back­ing of the party. If Trump makes a claim that he won Pennsylvania based on elec­tion night returns, look at how much he has been able to take over and control the Repub­lican Party right now. There is no recourse other than a polit­ical recourse.

There’s no legal mean­ing to declar­ing your­self a victory or to conced­ing. The winner is the person whose elec­tion certi­fic­ate is signed or, for the pres­id­ent, who gets the votes in the Elect­oral College. But those votes in the Elect­oral College, that’s a polit­ical choice that gets made by Congress. So that’s why I’m so worried about some­thing like this, because if it becomes a polit­ical thing then if people are lock­step with their party and not look­ing at the actual evid­ence of who won, that is very troub­ling.

I’m sorry for bumming all of you out. I apolo­gize. (Laughter.)

BASSETTI: Well, so that was actu­ally going to be my last ques­tion. I think we’re all well and thor­oughly frightened now. Are there any green shoots? Are there any areas of optim­ism?

HASEN: Well, rather than optim­ism let me suggest activ­ism. There’s nine months. 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.

And when you see the media acting hyster­ical about having to wait four hours for results, tell them. We can all speak to, you know, Jake Tapper on Twit­ter, right? Just go and complain about what you don’t like. It’s our demo­cracy and we’ve got to take some actions to try to keep it that way.

BASSETTI: So I want to thank all of our colleagues here at NYU Law, and partic­u­larly the NYU student chapter of the Amer­ican Consti­tu­tion Soci­ety for part­ner­ing with us on this event. And a huge thanks to Rick. We wish you great success with your book, Elec­tion Melt­down. You’re going to have an oppor­tun­ity outside in the lobby to buy it — will you be sign­ing it?

HASEN: Yes.

BASSETTI: And I am Victoria Bassetti. I’m a fellow at the Bren­nan Center for Justice. Please keep up with our work by sign­ing up for our news­let­ters at Bren­nan­Cen­ter.org and follow­ing us on Face­book or Twit­ter. Thank you all very much for coming.

HASEN: Thank you. (Applause.)