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