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Rick Hasen on Election 2016: Rigged, Hacked or Stolen?

Prof. Weinstein and Prof. Hasen Q & A

Recorded at UCI Law event Sept. 28, 2016

UCI Law Profs. Rick Hasen and Henry Weinstein discuss myths and realities about Election 2016: Rigged, Hacked or Stolen?

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Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks.

[HW] Good afternoon everyone and thank you for coming. It's a real pleasure for me to participate in a program on issues vital to the 2016 election and beyond with my distinguished colleague, Rick Hasen. Rick, as you may know, is one of the nation's leading experts on election law. He has written a textbook, he's written popular books that are for regular folks, as well. Rick is an honors graduate of UC Berkeley and has J.D., an M.A., and a Ph.D. from UCLA in political science. He practiced as an appellate lawyer for a while in Los Angeles. First taught at Chicago Kent Law School. When I made his acquaintance, he was teaching at Loyola Law School. Fortunately, several years ago, we snared Rick from Loyola.

I can say, in all honesty, during the period of about six or seven weeks following the 2000 election, when the litigation was going on over who was going to become the President of the United States, Al Gore or George Bush, I was literally joined at the hip with Rick on a daily basis. We must have talked three times a day. This is when Rick had an election law listserv that I would call a predecessor to his fabulous election law blog. Put up a lot of vital information every day that was really important to journalists around the country, as well as to other people that were following that hotly contested and very consequential litigation.

As all of you, I think, understand, voting is perhaps the most fundamental right in a democracy. You can't have a democracy without a free voting system. Voting was a very hard-won right in this country for a number of people, particularly in the South. People in this country died seeking their right to vote. Particularly, as you probably have heard of, three civil rights workers in the summer of 1964 were murdered trying to help people gain the right to vote.

Just to lead off the discussion, I would like to ask Rick to talk a little bit about what happened, legislatively, after those murders to lead in to the current voting rights that people have in this country.

[RH] Sure. Great to see a lot of old faces and new faces. I just want to take issue with one thing that Henry said, which was, he contrasted ... I don't know if you picked up on this ... textbooks that you read with what regular people read. I'll just leave that as what he's saying about you.

It is true that, especially in a place like California, where it is very easy to register and vote, we take the right to vote for granted. It's one of the reasons I think that voter turnout in California is abysmally low. That and the fact that we're a heavily Democratic state. There's often not a lot of competition on the ballot. I just spoke to a middle school yesterday, where my kids used to go to school. I asked them if they could name one of the two candidates running for Senate. I won't ask you, I won't put you on the spot, but not one could. Senator is such an important position, and yet all the attention is at the top of the ticket.

The right to vote didn't come to most people so easily. It took not just litigation but it took the passage of the 14th and 15th Amendments, and the 19th amendment, to enfranchise African-Americans and to enfranchise women. Then, as Henry points out, there was the passage of the 1965 Voting Rights Act. Even after that, voting in some parts of the country, especially in the South, was difficult. It took the Supreme Court interpreting the Voting Rights Act in a very creative way to give it some teeth. Then, in 1982, when things seemed to have stalled in terms of voting rights, it took Congress to strengthen the Voting Rights Act in 1982, much to the dismay of the point person for President Reagan at the time, who was fighting against the amendment. A guy named John Roberts, who had a very strong position against the strengthening of the Voting Rights Act.

That, of course, comes back in 2013, when the Supreme Court, in a case called Shelby County v. Holder. A case you'll probably hear about or have heard about in your classes, where the court strikes down a key part of the Voting Rights Act. 2013, Shelby County v. Holder. The Supreme Court says that the part of the Federal Voting Rights Act which says that jurisdictions with a history of racial discrimination in voting had to get approval from the federal government before they made any changes in their voting rules, and had to show that the changes would not make protected minority voters worse off ... the Chief Justice writes an opinion for five members of the Supreme Court over dissent of four, saying that that provision was no longer constitutional.

Since then, there's been a retrenchment and a re-emergence of restrictive voting rules, not only, but especially in places that were covered under this part of the Voting Rights Act, including Texas and North Carolina.

[HW] Let's go back to 2000 again for just a second. Besides the big controversy over what happened in Florida, the hanging chads, which votes would be counted, and so on and so forth ... the entire mechanism of voting in this country seemed to be called into question. There were problems in a number of states, and there was legislation passed. Just in terms of the technical aspects of knowing that your vote's going to count if you actually vote, where do you think we are now?

[RH] Let me first try and make you and me feel old. How many of you have a conscious memory of the 2000 presidential election being contested?

That's good. A few more ... Joe, good. Good to know our memories are still working. A few more years and that won't be the case. I used to come into my class, my election law class, and joke that there was a contested election in Florida, you may have heard about it. Now I say it with a straight face, because not everybody has.

Just on the technical side of things ... you can come by my office, 3800D. Anytime my door's open, come on in. I have one of those Florida voting machines with the punch cards and the hanging chads. I used to carry it to class. There used to be these little pieces of paper, the chad, that used to fall out on my way. Now there's no more left in there. My wife got it for me on eBay. It's not the machine with the butterfly ballot, which you may have heard about ... you know about this? That was where they put names on both sides, and people vote in the middle. You had all of these ... what we'll call Jews for Buchanan voters, people in Palm Beach County who thought they were pushing for Al Gore but actually voted for Pat Buchanan.

Turns out there are lots of problems with how we run our elections on the technical side. Something that probably cost more votes than the butterfly ballot was, in Duval County, they had a lot of candidates on the ballot for President. The instructions on the sample ballot said, "Be sure to vote every page," so 26,000 people had their votes for President thrown out because they voted for a President on one page, and then on another page.

The technical way that we run our votes, that's actually improved. We now think that there are about a million fewer lost votes because of technical problems than there were before. Part of that is because Congress came up with a pot of money to fix the voting machines and part of that is people paying more attention to these things, but we still see problems with ballot design. We see problems with technology. Now, there's been a big warning that ... and we'll get into this ... with some of these electronic voting machines, there's concern about the machines being hacked or vote totals being changed. I think some of those concerns are overblown, but it really does show that you can't just take for granted that what people mark on the paper or what they punch on the electronic voting machine's actually going to get accurately recorded.

[HW] Since you brought up hacking, why don't you talk a little bit about that? How real you think the concerns are?

[RH] Sure. Most voting in this country is not done electronically. What's seen as the gold standard now is pencil, paper, and Scantron forms, which you're all very familiar with. They're not perfect, but they're a lot better than some of the other alternatives. It is true that even those optically-scanned ballots are counted with computers, software that counts the markings, but with those we can audit. You can take a pile of ballots, count them, and see if they actually match. The place where there's concern is electronic voting machines that have no paper trail. We've had a few situations where there have been recounts, and the recount, essentially, consists of pushing the button again and seeing the same number.

I think the consensus among most people who follow this is that's a bad system, that you need to have a paper backup in order to get these things out. That said, there's no evidence that anyone's tried to hack those machines in this election. All of the hacking that we've heard about, it's been the DNC's emails. That's not going to affect how the votes are counted. It might affect how people think about the Democrats, but it's not going to affect that. Also, there have been attempts to steal voter registration lists in Arizona and in a few other places.

I don't think it's a huge danger, but I am concerned because Pennsylvania is one of the states ... battleground state ... that has electronic voting machines without a paper trail. It's a place where Donald Trump has said that the election could be rigged. I worry that, even if the election is not rigged, people can point to those machines without a paper trail and say it. There's no way to formally be able to disprove it because there's no paper record.

[HW] Trump has talked on several occasions about the notion of the election being rigged. What exactly does it mean to rig an election? It's not just potentially with a machine, is it?

[RH] I define election rigging as where eligible voters are improperly excluded from voting, ineligible voters are allowed to vote, some people are allowed to vote multiple times, or the counting that is done does not accurately reflect the count. Those are, I think, the four categories of what would be a rigged election. Trump, unsurprisingly, does not use the word with any scientific precision. He's claimed the superdelegates, for example, rigged the election, the Democratic nomination for Hillary Clinton. That's not how I'd use the word rigged. It's also not true. It didn't take the superdelegates to get Clinton over the top on the Democratic side.

What he has said about the general election, and particularly about Pennsylvania, is that he's worried about ... these are his words ... "certain areas of Pennsylvania where the vote could be rigged. You know what I'm talking about." That's not me saying that, that's him saying that. "You know what I'm talking about." This seems to be code word for watch the urban African-American districts where there's going to be vote fraud. There is a belief among some people on the right that there's a massive amount of voter fraud going on. It's being done by Democrats. It's labor unions and minorities getting together to steal the vote from everyone else. That's pretty much what I think he means by it.

I was very glad, at the very end of the debate ... you may remember, Lester Holt asked a question, "Will you accept the results of the election?" Hillary Clinton says, "Yes," and Donald Trump starts talking about, "Maybe there were people that should've been deported from the country, but then they were made citizens. Maybe 800, maybe 1,800 ... " I don't know if you remember this ... and then he said, when pressed again by Holt, "If she wins, I will support her," which, at first, made me a little more relaxed about this, but not too relaxed about it, because "If she wins ... " That pre-supposes that he would accept that she would win. If it's a close election, maybe he doesn't, and points to these kinds of things. I think there's still concern.

The other thing is, right after he made the comments that the election was rigged about a month ago, he put on his website a form you could fill out that you could join his citizen brigade or whatever it was called to make sure the voting is not rigged. There's a problem we've had, historically in the country, of voters being intimidated. We've had situations ... for example, in New Jersey in the 1980s, and in Louisiana, armed police in front of polling stations in predominantly minority areas. It was so bad that the Democratic National Committee sued the Republican National Committee claiming that this was voter intimidation, violating the Voting Rights Act and various civil rights acts. The DNC and the RNC settled that suit with a consent decree that says the RNC basically cannot engage in this kind of activity. That expires next year, unless it's extended by the court. There's question as to whether Trump's activities would count, whether Trump would count as an agent of the RNC for these purposes, so people are watching that.

It's possible that, even if Trump doesn't organize anything, Trump's supporters might be going to the polls trying to make sure the voting's not rigged and, in the process, make it so that eligible voters cannot vote, thereby rigging the process. I'm concerned about that.

[HW] Along the same line, one of the states that passed a law in the aftermath of Shelby County decision that looked like it was going to make voting more difficult for certain groups of people was Texas. It was a very restrictive law. The Fifth Circuit Court of Appeals, which is probably the most conservative federal court of appeal in the United States, struck the law down, which seemed to open things up. In the aftermath, it seems like Texas has been doing some other things that might discourage people from voting.

[RH] Well, the Texas story's an interesting one. Texas actually passed a strict voter ID law before Shelby County, but it was blocked by the Justice Department, by this pre-clearance process. Then, two hours after Shelby County was decided, Texas announced it was going to enforce this law. Voter ID is a very big topic. We could probably spend the whole hour talking about it, but let me just say briefly: voter ID's kind of a misnomer because everyone has some kind of way of identifying themselves. The question is, which kinds of identifications are okay?

In Texas, if you have a concealed weapons permit, that's okay. If you have a student ID from the University of Texas, that's not okay. It depends on what kind of ID counts. There's a very narrow class of IDs. I was in Austin speaking this weekend on a panel. There was a Republican state senator on the panel. He said, "You need ID to fly, you need ID to buy alcohol, so why not for voting?" Well, it turns out you actually don't need ID to fly, you just go through a more restrictive screening process. Also, in terms of constitutional rights, the question is, "Well, what is this law meant to do?" If what it's meant to do is to stop people from impersonating other people at the polling place, that doesn't really seem to be that necessary. In fact, there have been fewer than ten cases out of tens of millions of ballots cast of anyone caught trying to ... in Texas ... impersonate another voter.

I'll give you an example so you know what kind of vast conspiracies are going on with this. It was Election Day and Dad was out of town, so Mom took Junior, who had the same name as Dad, who was 16, to vote for Dad. Dad was away on a business trip. Dad comes home early from the business trip. Before he gets home, stops off at the polling place to vote. Seeing that he's already voted, they do an investigation, Mom's arrested. This is not an organized way to steal elections. It's people doing stupid things, doing illegal things, but ...

For my 2012 book, I tried to find a single example in the country, from the 1980s going forward, where an election has been stolen by impersonation fraud. I couldn't find a single example anywhere in the country. I could find examples every single year, from the '80s onward, of absentee ballot fraud. That's where, for example, your vote by mail ballot comes and someone steals it out of your mailbox. That happens occasionally. More common in south Texas is, my absentee ballot comes, somebody pays me $20 for it, and I give it to them.

Now, that kind of fraud happens, but Texas's law didn't address that. We have a situation where there's documented, actual fraud that's led to prosecutions, that's led actually to elections being re-done, not addressed by the Texas legislature, but a non-problem, addressed by the Texas legislature. A trial court struck that law down, said it was passed with a discriminatory intent, and had a discriminatory effect under section two of the Voting Rights Act.

Case went up to the Fifth Circuit. As you said, one of the conservative appellate courts. A conservative panel said, "The law's okay, but you need to soften it for people who have a big problem getting IDs," like people who are in rural areas and are maybe 100 miles from the DMV where they would have to get, at their own expense, a voter ID, or someone born without a birth certificate. We had a situation in Wisconsin of someone born in a concentration camp who was denied an ID, or a woman who lacked arms and, even though she brought ... her daughter had the power of attorney, they wouldn't give her the ID because she couldn't sign the form. Not so easy to get these ideas.

The Fifth Circuit said, "You need to craft a softening." That went all the way to the full Fifth Circuit. The full Fifth Circuit, somewhat surprisingly, agreed, sent it back to the trial court and said, "For this election, come up with some rules." Texas agreed to some rules and everything looked great for this election. Texas is going to the Supreme Court to try and get them to overturn this. Then it turns out that Texas is not properly advertising, even though they promised to, how they are going to allow people without one of these seven accepted forms of ID to be able to vote.

Now, the trial judge has said, "Alright, every time you want to put out something, Texas, that explains how the voting is going to work, you need to get approval from the plaintiffs," so it's kind of pre-clearance brought back in for this case because the trial judge is so upset about this. Meanwhile, you have the city clerk in Houston saying that anyone who tries to vote with an affidavit who lacks the right ID, that person's going to be investigated for voter fraud.

[HW] Which would potentially, certainly, intimidate somebody that ... right?

[RH] Yes. The other piece of what happened in the Fifth Circuit case was, the trial court found that Texas passed its law with racially discriminatory intent. The Fifth Circuit said, "Some of the evidence you looked at was improper to infer intent. Take another look." There's no doubt in my mind what this judge is going to find. She's going to find that there's discriminatory intent. Then it's going to go back to the Fifth Circuit for another round of this.

If there's a finding of discriminatory intent, two things. One, the entire law could be thrown out. That's what the Fourth Circuit just did in North Carolina. The second thing that could happen is the part of the Voting Rights Act that says "If you're found to have engaged in intentional racial discrimination, you could be put back under federal oversight for up to ten years."

The case is far from over, it's still going on. This is the next stage of where things are. The fact that Texas is dragging its feet after it agreed to these changes ... that's evidence the plaintiffs are writing down now to make their case as to why Texas should be put back under federal pre-clearance approval for up to ten more years.

[HW] Explain one other thing about what's going on there, which is: I know states have a lot of autonomy in how they administer elections, localities have some autonomy in how they administer elections, but if you think about the ID. The notion that a gun permit is an acceptable form of identification and that a student identification from a university in Texas is not acceptable ... how would that even pass a rational basis test for being acceptable?

[RH] One point that has been made in defense of this is that concealed weapons permits have expiration dates and that student IDs do not. So presumably, a student ID could be passed off ... this happened in Wisconsin, so the University of Wisconsin started putting expiration dates on their student IDs just so that the students could vote, but you're right.

There are really two defenses that have been made in both Texas and North Carolina. North Carolina passed a law that not only imposed a strict ID, but did a bunch of other things. One defense is, this is our good government choice as to how we think we should run our elections, promote confidence, prevent voter fraud. The Supreme Court, in 2008, in a case called Crawford versus Marion County Election Board, said, "You don't need proof of actual voter fraud to be able to have a generally applicable voter ID law." The court left open the question if the law burdens some specific groups of people, whether they get an exception.

One way that the states have been trying to defend themselves is saying this is good government or we're making a choice. For example, North Carolina rolled back early voting from 17 days, which the Democratic legislature had put in place, down to 10 days. They said, "Why should Democrats be able to make it easy for people to vote, but we can't make it hard for people to vote?"

One question is, who makes that public policy and how is that done? The other question is ... and it's sometimes said, "This isn't discrimination against minorities or students, this is discrimination against Democrats," as though that's okay. The reason that's apparently okay is because the court, in the context of gerrymandering ... how you draw the lines for congressional districts or state and local districts ... has said, "We can't police when partisanship is taken too much into account in drawing district lines." Analogizing from those cases, some people have said, "Well, if all we're doing is trying to craft the rules in a partisan way, that's okay." I think that issue, ultimately, is going to have to get tested at the Supreme Court.

It's just nonsensical to me that we would distinguish Democrats from minority voters in a place like Texas where, if you are African-American in Texas, you're over 90 percent Democrat to Republican and, if you're Hispanic in Texas, it's like two-thirds. There's such an overlap that to say, as Texas did in one of its briefs, that a law that discriminates against Democrats is okay, even if it has an incidental ... these are Texas's words, not mine ... effect on minority voters.

There's no incidental effect. There's a reason that the Democratic Party is favored by minority voters. It's because the Democratic Party puts forward platforms that minority voters like. It's not a coincidence. That's got to be disentangled, but the way the courts have done it so far is they've drawn a distinction between "If you're doing it and it's about race, then you're in trouble. If you're doing and it's about party, it might be okay."

[HW] We've had a lot of talk over the past decade about voter fraud. A number of states, as you've said, have done things, particularly photo ID laws and a variety of other things that are, at least on the surface, potentially an attempt to restrict voting. You mentioned a couple of moments ago a Supreme Court case called Crawford, which was decided in 2008.

I distinctly remember talking to you the day that the Seventh Circuit decided that case a couple of years earlier. Since that time, a quite interesting thing has happened. The judge who was involved in that case, Richard Posner, one of the leading conservative judges in the United States ... a Seventh Circuit judge, law professor ... has said that he very much regrets his vote in that case, and that he's seen very little evidence of voter fraud since then. He's become a big skeptic about this issue. Could you talk a little bit about that?

[RH] Yes. Well, I remember when Judge Posner wrote his decision, I had an op-ed in the Washington Post urging the Supreme Court to take the case. I'm sure it didn't have an effect, but that was a dumb position for me to take because the worst thing ... before the Roberts Court, while Justice Scalia was still on it ... was to put a voting rights case before the Supreme Court. The last place you want to be to defend voting rights was the Roberts Supreme Court. They just took a bad opinion and made it worse, in some ways.

I'm going to disagree with a couple of things you said. First, to call Posner a conservative ... he's a very quirky kind of conservative.

[HW] Fine.

[RH] Libertarian-

[HW] I'll buy that.

[RH] ... he's not Edith Jones, he's not-

[HW] Oh, definitely not.

[RH] ... Justice Thomas. He's kind of a free thinker, and does some strange things that are out of ideological character.

[HW] Appointed by a Republican President.

[RH] Yes, appointed by Ronald Reagan. He's written more books than I've read. The guy's unbelievable.

The other thing I want to take issue with is, after being pushed on this, he did not say he regretted his vote in that case. What he said was that there was not enough evidence in that case to draw a conclusion that this was about voter suppression, but since then, the evidence is in, and these laws are more about making it harder for people to vote, especially voters who tend to vote Democratic, than they are about trying to prevent voter fraud.

Justice Stevens also has expressed some regret. Crawford ... only law students would appreciate this. This will not be on the exam, so stop writing. In Crawford, the court divided 3-3-3. There were three Justices who said the law's unconstitutional. There were three Justices ... Justice Scalia, Alito and Thomas, the three most conservative Justices ... who said, "If the law's not a big burden for most people, it's constitutional for everybody," so even if a few people face a big burden, we can't start looking at individuals and seeing if their rights are being violated, that's going to be cumbersome in our elections. Three on one side, three on the other.

The group in the middle was Stevens, Roberts, and Kennedy. They took the position, For most people, it's really not a big deal to get an ID ... and voter fraud was a problem. Justice Stevens was the old guy on the court. Cited example of voter fraud from 1868. Boss Tweed. He also cited one possible impersonation vote in the 2004 governor's race in Washington. He said, Facial challenge no good because, for most people, it's not a big deal to produce your driver's license or your passport or whatever, but for some people, it could be a big deal. We're leaving open the possibility of an as applied challenge.

While Justice Stevens has said he now has regret about that case, I don't believe Justice Stevens. I don't think he ever believed what he wrote in that opinion and that it was a strategic vote to prevent a 5 to 4 decision, which would have been the Scalia decision, that ... no as applied challenges. He was able to keep the center. I think that he saw what was coming, but didn't want to say it. That's how I read that 3-3-3 split.

What's happened since then is ... we talked about how the Fifth Circuit softened the law. That's happening all over the country. Courts are offering these softening. Split the baby approaches. For example, in South Carolina, in order to avoid a voting rights lawsuit, South Carolina said, "If you have a reasonable impediment to voting, you just fill out this affidavit." It turns out, in practice, they don't tell anybody that. It's very hard to know that you can vote without an ID. All the advertising is vote with ID.

I think the courts are getting the wrong impression that if they just say "Make it easier," that actually happens. There's a distinction between the law in the books and the law on the ground. That's all of what's being litigated right now.

[HW] Well, laws generally are not self-executed. You need somebody to enforce them.

A few moments ago, you talked about the lack of any solid evidence in Texas of voter fraud. I think you said there were hardly any cases out of millions. The last study I read on this nationally was written by a chap I believe you're quite familiar with, Justin Levitt, which I said that there were, out of millions and millions, 31 cases of impersonation total that had been established. You think that's an accurate number? If so, what does that say about the notion that there's rampant voter fraud that should be prompting laws?

[RH] I certainly think there are many more than 31 cases. What Justin did ... Justin's now ... he's a professor at Loyola, but now he's working at the Justice Department as the head voting person. He took over for Pam Karlan, who's going to come in a few weeks. You want to hear somebody brilliant and entertaining, you should come hear Pam Karlan, she's really the best.

Justin counted up actual cases that have been documented. Now, surely, there are more cases that have not been documented. So you have 31 out of however many hundreds of millions of votes that have been cast. I don't think that's a good way to figure out how much of this is actually going on. A better way is to count up all the prosecutions for election crimes in the country.

There was a group ... a student journalist organization called News21 out of Arizona State and the University of Arizona. They looked at all election crimes in the period from 2000 to where ... I think it was 2012, when they counted. If you looked at the number of prosecutions for impersonation fraud, it was below one-tenth of 1 percent. If you looked at the prosecutions for absentee ballot fraud, it was among the highest. I think it was the highest. Maybe it was in the 30s, I may not be remembering that right.

Voter fraud happens. It's rare, but it doesn't happen in the way that voter ID laws prevent it. If you really cared about voter fraud, the number one thing should be no more absentee ballots unless you have a good excuse. You're sick, you're disabled, you're overseas ...  you can't get to the polling place. You might ask, "Well, why don't we do that if we're really concerned about voter fraud?" The answer is, people like voting by mail. We're willing to take the risk of some crime in order to have convenience. It's a trade-off.

It turns out that most voter fraud that people catch ... like James O'Keefe, if you know who this guy is, he's one of these guys that goes around trying to sting people ... is committed by the people doing the stings. It's very, very rare, and the kind that a voter ID prevents is extremely rare. More than 31 though, no doubt.

[HW] What would you say was the state of voting rights and the actual administration of elections in the state of California right now?

[RH] Well, California's not competitive, so people pay less attention. There have been some problems in California with how our elections have been administered. There's a problem with how our campaign finance laws have been administered. There are lots of problems in California, but they're below the surface. If you vote an absentee ballot, your chances of it being thrown out ... historically, have been pretty high in parts of California ... because you didn't fill it out right. You didn't sign it in the right place or you didn't bubble in something you're supposed to bubble in. There are millions that are not being counted in our elections. Until recently, you wouldn't have been notified that your vote would not have been counted.

Now, we're finally moving to Election Day registration in California, same-day registration. Suppose you've moved or you've never voted. You'll be able to register and vote the same day. Electronic database ... they're trying to make improvements, but I think that part of the reason things have not improved more is because California's not competitive, people are not paying so much attention.

I should point out something. We're talking about the Republicans in states like North Carolina and Texas passing laws that help Republicans, or at least are perceived to help Republicans. I think the amount of voter suppression that takes place from these laws is much, much, much less than Democrats claim. Let me just talk about self-interest on the part of Democrats. In Oregon, and now in California, we're moving towards automatic voter registration, meaning that as soon as you become a California resident you're going to automatically be registered to vote unless you opt out. You think Democrats did that only because they think it's a good idea and enfranchisement is great? It's because they know the same things the Republicans know: voters who are less likely to register, voters who are younger, who are poorer, who are minorities, are much more likely to vote for Democrats. That's why Democrats make it easier to vote and Republicans make it harder to vote.

Every time I say that I get accused of false equivalence. "No, Democrats are fighting the good fight." Maybe some of them are, but it seems like a coincidence that it's only the blue states that are passing these laws and only the red states that are passing the other laws. They both seem to work in the interests of the majority party in the legislature.

[HW] Over and beyond the question of who benefits. What is the problem, would you say, since I gather you have some problems with what's being done in California and Oregon? Do you have an equity problem? A technical problem?

[RH] At the end of my book, I make a proposal. I think we should have automatic voter registration across the United States. We'd have a uniform system. National voter ID, along with automatic voter registration and a thumbprint, if you want it. If you forget your ID, you won't forget your thumb. You could just put your thumb down.

This is a proposal that has united everyone. Everyone hates it. Democrats hate it because they don't like an ID. Republicans hate it because it's automatic voter registration, it's going to increase those who can vote. Privacy advocates hate it because it's a thumbprint. People who worry about identity theft ... everybody hates it, but I think that is the best way to go.

We are one of the few democracies that runs our national elections on a sub-state level. Not even on a state level. We don't run one election on Election Day, we're going to run 14,000 elections on Election Day. There are 14,000 separate electoral jurisdictions in the United States, each with their own rules. We didn't talk about this about Florida, because you told me to talk about the technical stuff. In almost every place ... I don't want to say almost every place, 38 states ... partisan election officials make the rules. Even if you are trying to be the fairest you can, when you are a partisan election official, it's really difficult to be objective.

Here's a great statistic. The ballots from Florida, the ones with the "Is this a vote for Gore? Is it a vote for Bush? Is it a pregnant chad? Is it a hanging chad? Is it a dimpled chad?" Those ballots were public records in Florida. After the election, they were transported to an organization in Illinois called NORC. A consortium of news organizations worked with NORC to recount those ballots to figure out who really won Florida, which is something we'll never know because the margin of error in how we ran the election greatly exceeds the margin of victory. It turns out that the people hired by NORC a few months after the election ... if they were Democrats, they were much more likely to find votes for Gore than if they were Republicans.

Everybody, myself included ... we all could not see through in the height of such a partisan moment. It is very difficult to be objective. Making someone be a partisan election official is really the worst position to be in, but it's going to be much worse in this election if it comes down to Clinton versus Trump instead of Bush versus Gore before the Supreme Court. Why is that? Because we have a 4-4 Supreme Court. In the last election, we had conflicting ... nobody focused ... well, Henry focused on it, but most people didn't focus on ... we had cases going on in the Eleventh Circuit ... the federal court, pretty conservative court at that time-

[HW] That covers Florida, among other states.

[RH] ... that were in conflict with what the Florida Supreme Court was saying. Now, the good thing about the Supreme Court is they can resolve all of that, but not when you have a Supreme Court that's deadlocked. In that North Carolina case I told you about, about are their voting rules going to be thrown out ... North Carolina went to the Supreme Court, and the Supreme Court divided 4 to 4 on whether or not to reverse on an emergency basis.

If it's Clinton versus Trump, and it's a 4-4, the lower court's ruling stands. Say it's in Ohio. You could have ... well, Ohio's not a good example, because the Sixth Circuit is more conservative, and the Ohio Supreme Court ... You could have some state where ... Florida would still be the one ... you could have the Florida Supreme Court, Democratic Supreme Court, going one way, the Eleventh Circuit going another way, and no way to resolve it. At the court level, anyway.

[HW] Or you could have it in North Carolina, with a more liberal Fourth Circuit than it was before Obama was the President. Their opinion about what North Carolina did was scathing. They said that they basically precision targeted in a way that would disenfranchise black people. It's one of the most scathing opinions of that kind I've seen.

[RH] That was not en banc, that was just a panel.

[HW] I know it was a panel, but it was very scathing.

Let's finish, I guess, the next tawdry chapter. If the Supreme Court were to divide 4-4, is there a possibility that the House of Representatives could get involved in this vote eventually?

[RH] Sure. We could also have a 269-269 split of the Electoral College vote. We could have a faithless elector, someone who decides not to vote for Trump or Clinton. We could end up with ... I was just talking about this yesterday ... President Tim Kaine. That's really a possibility. How would that happen? Well, under the 12th Amendment, if the House can't give anyone a majority of the electoral college votes ... and you know how the voting works in the House? Schoolhouse Rock?

[HW] You should explain that.

[RH] If nobody gets above 270 or above then the House has a vote where each state delegation gets one vote. That's right. Wyoming gets the same number of votes as California ... one each ... and they can only vote for the top three candidates. Then, if they can't reach anything, it is going to be up to the Senate to pick a Vice President. Not each state, but each senator gets a vote. This happens on January 3. Maybe Democrats take back the Senate, maybe they don't. If they do, Tim Kaine could be chosen. If they don't, Mike Pence could be chosen.

The 12th Amendment says, "If the Congress cannot agree, the House cannot agree, then the Vice President becomes the temporary President." This was in Veep, somebody told me. Oh, spoiler alert. I haven't seen it, but apparently ... The new Vice President could become the ... at least temporary President, until the impasse is broken. If there are claims of faithless electors ... someone who has been listed as an elector for Hillary Clinton or Donald Trump and decides "I'm not going to vote for that person. I'm going to cast my vote for someone else." That might raise a judicial question, might be a political question. Could end up in the courts. Supreme Court could divide.

I'll recite the Election Administrator's Prayer, which is, "Lord, let this election not be close." The last thing you want is a close election when things are so contested. You want a blowout. That way, all the rigging and hacking and all the things that people say will be mostly ignored. If you think that that stuff's not out there every election, go to Obamavoterfraud.com or Obamavoterfraud.blogspot ... I know this because they always cite something I wrote, I'm not sure why that is, but ... You can go back to from 2000 on, and you will find people who will argue that the election was rigged. It's not just Republicans making these claims. Democrats believe that -

[HW] Ohio was rigged, and ...

[RH] ... that Ohio was rigged, John Kerry actually won that state, and the evidence for-

[HW] 2004.

[RH] ... that is that the exit polls didn't match up. Well, exit polls are not really all that predictive. They serve a different purpose, but there are some people that believe that kind of stuff. If it's really close, it could be a disaster. The good news is, it's not likely to be that close, absolutely close. You think about Florida. At one point, the Florida margin between Bush and Gore was down to 537 votes out of about six million votes cast. That's really, really, absolutely close.

Chances of that happening again are pretty small. It'd have to be in a state whose electoral college votes matter for the outcome, and it would have to be on absolute numbers. When Kerry was behind in 2004 by about 100,000 votes, the morning after Election Day his lawyers got together and said, "No way we're going to find enough of a problem that's going to make up 100,000 votes."

Just like you should worry about the small chance of a nuclear meltdown at San Onofre, you should worry about the small chance of an electoral meltdown. Same kind of thing. Small risk of a catastrophic event. That put you all at ease, right?

[HW] Let's talk about something else about all of the talk about the possibility of something being rigged, or so on and so forth. What do you think is the impact of this on democracy? I guess I'll just ask you sort of a leading question. It seems like some people are doing this as part of an attempt to erode faith in government.

[RH] Objection, leading. I certainly think that Trump is saying some of this stuff to get people to de-legitimize the potential of him losing. One thing we know from public opinion polls is, if you ask people in a recent close election if they thought the election was done fairly, if the votes were counted accurately, if they were on the winning side of a close election, they were much more likely to believe the election was done fairly than if they're on the losing side, and that flips. Democrats didn't believe that the 2000 election was conducted very fairly. Republicans in 2004 in the governor's race didn't believe that was done fairly, where a recount led to the Democrat beating the Republican when it looked like it was going to be the other way around.

Only ... the figure was something like ... 29 percent of Trump supporters are very confident or confident that their votes are going to be fairly and accurately counted. The message seems to be resonating. If Trump narrowly wins in a place and there's a credible claim to be made by Clinton people that it was rigged, people will believe it. This is another one of those test yourself moments. It's like someone said to me yesterday, "If Donald Trump was the Democratic nominee and Ted Cruz was the Republican nominee, how would you vote?" He asked this in a class of 100 people. None of them would claim to be Trump supporters. He said almost three-quarters of them said they would vote for Trump. Situational ethics. How you view the electoral process depends a lot on where you are relative to your own values.

[HW] Let's have some questions.

[RH] The first part is easy. A, no, she will not recuse herself. She would likely point to Justice Scalia's statement in the Cheney ... I don't know if you know this whole thing about Dick Cheney. There was a case where Dick Cheney was the defendant. They had just gone duck hunting. One of the things that Scalia said in his decision, where he explained why he did not recuse himself, is, "We're a Supreme Court where we can't replace ourselves so easily. Therefore, we have an extra obligation to sit on a case unless it's clear that there's a conflict," and then he said there was no conflict.

I can't imagine that she would recuse herself in what would be such a case, especially because we know what she thinks of Donald Trump, because she told us. Whether she should? That's a hard question. There's a very credible claim to be made that she should recuse herself. You don't want Supreme Court Justices making statements about who should win any election, much less the Presidency. I think it was a big stumble by her. I don't think she should've said it. She eventually apologized for it.

I think what her thinking was is ... it's kind of like how Bernie Sanders ... these older progressives become icons to millennials. She thought, "Here I am. I'm going to get millennials listening why they need to oppose Trump." When you're on the Supreme Court, you tend to think your importance is great, because it is great. I think she just overstepped the line.

[HW] Other ... Jonathan.

[Audience Member] You mentioned earlier that the DNC actually claims that the Democratic election was rigged in favor of Clinton. Can you expound a little bit on your thoughts on those claims, and what happened?

[RH] You want to repeat the question?

[HW] Go ahead.

[RH] It's about whether or not the election was rigged against Bernie Sanders ... the primary season ... based on the hacks of the DNC's emails, which showed, basically, that Clinton was being supported by many in the DNC and the DNC leadership when the DNC took the position that they were officially neutral between Clinton and Sanders.

I don't know that I would call that rigged. I would leave rigged for situations of those examples I gave where eligible voters can't vote or anything like that. I wouldn't have had a problem if the DNC came out and said, "We're supporting Clinton over Sanders." A political party can take that position, especially because Sanders was not a Democrat. He's never been a Democrat, he's been Independent. The problem was ... as always, it's the cover-up. It's the lie. It's saying we're going to be fair and neutral, and not be fair and neutral. I've a problem with that. I'm not really surprised by it. Of course they wanted Hillary Clinton, she was part of the Democratic apparatus for decades. That's not a surprise at all.

Do I think it affected anything? I think the DNC was not particularly effective in the primary season. I don't think anyone thought, "Oh, Clinton and Sanders ... well, what does Debbie Wasserman Schultz think? I'm going to go with what she says." I don't think it really had much of an effect on anything, but I do think that it shows ... People are worried that there's going to be something else that comes out, that ... maybe it's the Russians, maybe it's a 400-pound guy sitting on a bed, I don't know ... is sitting on some additional information, and that information is going to be the October surprise. Well, if you're watching on the Internet, early voting's already started in a number of states. My daughter's overseas, she's already voted. People are voting so, if you've got the October surprise, now's the time. People are already voting.

I don't know if there's anything else to come out, but if this is the worst that comes out, I can't imagine now people saying, "Clinton or Trump? I was really going with Clinton but, now that I know that the DNC was favoring her, I'm going with Trump." I really don't think it's going to have much of an effect. I do think, though, that it's legitimate to be concerned that foreign governments might be trying to influence our elections. That's something that I hope, after the election, there could be some bi-partisan investigation and better steps to be taken. We can mess up our own democracy, we don't need somebody else to do it for us.

[HW] Other questions?

[RH] That's a great question. What would happen in terms of from this election about superdelegates or the Electoral College? Electoral College, I think, is off the table. It's so difficult to amend the Constitution, especially when the small states would suffer. If we had a national popular vote, the candidates would spend all their time in California, Texas, New York, and Florida. They wouldn't be in Ohio and Pennsylvania. Nobody would care about Colorado and Wyoming. I don't think that's ever happening.

On superdelegates ... this is going to be very interesting. As part of the Sanders kumbaya effect, they decided that they're going to lessen the role of superdelegates. Democrats are going to make superdelegates less important. That's one of the things that Sanders pushed for. Republicans, on the other hand ... if Trump wins, then I don't think anything changes. If Trump loses, I think there's going to be a push to put in superdelegates so that they could actually try to block someone like Trump next time.

Looking a little bit further in the future ... if Trump loses, I expect we're going to see the Republican Party break apart. There's going to be a more centrist, moderate party that's also going to attract the support of some Democrats who are more to the right of the Democratic Party, and there's going to be a right-wing populist group that will eventually ... Tea Party, Trump supporters ... fall off. That's what I think, but I'm talking 10, 20 years in the future. If Trump loses ... and the process could well lead to Trump again ... the Republican Party's going to have to think about what they're going to do, because Trump's not going away. He could be a factor in the next election, too, if he loses.

[HW] Trump, or Trump-ism.

[RH] That's right. Imagine Trump, but someone who is willing to prepare for debates and doesn't have thirty years of Howard Stern tapes and things that could be thrown against him.

[HW] One more. Yes?

[RH] The question is, could the primaries be changed if they're starting in places that are maybe not the most relevant? I would say the better word is not representative. The people in Iowa and New Hampshire: overwhelmingly white, rural, not necessarily representing lots of Americans. Representing some, but not all. There have been all kinds of proposals for rotating regional primaries and shaking things up. I think that would be a great idea. It's just that every presidential candidate who comes in now under the existing rules ... they pledge. You're Ted Cruz, you spend six months in Iowa. Iowa's always going to be first. It's "How do you get beyond it?"

You'd think, after the 2000 election, that would've caused us to rethink a lot of things but, in a lot of ways, aside from the technology, things are pretty much the way they were. On primaries, things have not really changed much at all.

[HW] Except for the fact that, before the caucus system came in, New Hampshire had the first primary, so Iowa as the first state is a relatively recent phenomenon, maybe the last 40 years or so.

[RH] 40 years is still ...

[HW] Years, right. What do you think about the idea of having ... the possibility of a national primary day?

[RH] I think a national primary day's a bad idea because you want to see how the candidates develop over time. The proposal I like is the rotating regional primary. You divide the country into four, five, or six parts, then you rotate in the election. One election season, the west goes first. The next election season, the south goes first. Everyone gets that. Then you could campaign in those areas. I think that would be a fair way to do it, but I also wouldn't have designed an Electoral College where it could divide evenly. We've got a lot of problems with how we run our elections.

[HW] On that note, thank you very much, Rick Hasen.

[Narrator] Thank you for joining us for UCI Law Talks, produced by the University of California, Irvine School of Law.

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