Rick Hasen on “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy”
Prof. Henry Weinstein interviews Prof. Rick Hasen about his latest book analyzing key threats to the integrity of the 2020 U.S. presidential election. Recorded April 1, 2020 via Zoom virtual presentation.
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Richard Hasen
Chancellor's Professor of Law and Political Science
Expertise: Election Law, Legislation, Supreme Court, Remedies -
Henry Weinstein
Professor of Lawyering Skills
Expertise: Media Law, Lawyering Skills
Featuring:
Podcast Transcript
[Narrator]: Welcome to UCI Law Talks from the University of California, Irvine School of Law. Join us on Twitter @UCILaw.
[Henry Weinstein]: Today, I will be in conversation with my colleague Rick Hasen who is a Chancellor's Professor of Law and Political Science at UCI. Perhaps more importantly, he is one of the nation's leading experts on voting rights and election law. As I suspect most of you know, the right to vote is perhaps our most fundamental right in this country because it is the gateway to so many other rights. And if you don't have a vote, you do not have a voice in a democratic society.
Twenty years ago, our country got a stark wake up call about failings in our election system with the debacle in Florida. The word hanging chads became forever a part of the American lexicon. Rick, at the time, was already considered an expert on voting rights and was quoted widely in the news media at that time. Since then, he has written three well, highly acclaimed books, including one called, The Voting Wars, another called Plutocrats United, and a third on Justice Scalia.
Now, with what I can only consider impeccable timing, Rick came out a couple of months ago with his latest book, trying to show you here, it's called Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy. Rick's book came out around the time of the Iowa primary, which turned out to be the first election meltdown primary of the year, but that event just a couple short months ago, in fact, even less than two months ago, now seems to pale in comparison with what the country is facing in many respects, including upcoming elections due to the coronavirus pandemic.
Already 10 primaries have been delayed, at least until June, it remains to be seen if it'll be possible to hold the conventions this summer. And it looks like our election in November may have to largely be conducted by mail ballot. Rick's been calling for election reforms for years, that need seems more apparent than ever. So, Rick, just as we start out, perhaps you could bring us up to date on what is going on in Wisconsin. Thus far, Wisconsin is the only state not to have canceled its primary, and they're proposing to have an election there tomorrow, what's going on?
[Rick Hasen]: Well, first of all, let me say, it's good to be with you all virtually at least. This was initially an event we we're going to do in person and I was home sick, and we rescheduled, and then the world turned upside down since then. I hope everyone is safe, and I'm glad that we can join this way. And although Henry didn't mention it, we will be able to take your questions later and we'll be doing that by the chat function on Zoom. So, when you have questions, you can type them up and we'll try and get to as many as we can.
It was really, I guess, maybe six or seven weeks ago, Henry, that you and I had a conversation for a different audience about the election and coronavirus was something we heard about going on in another country. And already I was very concerned about the election and whether or not we were going to be able to pull it off successfully. By successfully, I mean, that the losers would accept the election results as legitimate and would believe that it was a fair fight, it was hard fought, I'm disappointed, but I'll go on to fight four more years for a different outcome.
And now, the virus is really thrown curve ball to the whole election system. It's going to make it very hard to conduct voting if we have anything like what we have now in November. We expect that transportation is going to be normal, people can be close to each other, there can be campaigning, people can hand out flyers, you can go to the polling place, you can touch equipment that other people touched. You wouldn't have to be confined to your home to get information. You wouldn't have to vote by mail. And now, all things are topsy turvy.
We saw, I think it was now about three weeks ago, there were four states that had scheduled primaries, Ohio, Florida, Illinois, and Arizona. And Ohio, at the last minute, postponed their primary, potentially in violation of state law, which raises all kinds of questions about, when does the governor have a power to postpone an election, we can talk about that later on down the line. But in the other places where polling took place, there were problems, poll workers did not show up, election workers did not show up, polling places never opened, turnout was down among people voting in person.
Already the writing was on the wall that it was going to be very hard to conduct an in person election under these circumstances of quarantine and stay at home orders. Most other states that had primary scheduled for April and May have rescheduled them to June, and there's still some fighting over the rescheduling in Ohio and in some other places. But Michigan decided it was going to go ahead with its primary, in part, because there are a number of things on the ballot besides the presidential primary. For example, they're choosing a state Supreme Court Justice, the number of local offices where they need to make decisions. And although the governor had called for the election to be postponed, the legislature did not reschedule a date.
As we're speaking, there's a hearing going on right now, a telephonic hearing before a federal judge who has indicated, he doesn't think he can postpone the election, but might relax some other rules like about when absentee ballots need to be put in. We know the election is already disrupted, so I think the number of people who've requested absentee ballots has gone over a million today, about five times what you would expect in a normal Wisconsin primary. And we know the governor would want to postpone the election has called up the National Guard to work in polling places. I mean, this is really extraordinary.
There's no question that people are going to be disenfranchised because of this. But the question of, what you do? How you do it, for a primary? Is somewhat less of a concern than in a general election. But remember in Wisconsin, for some offices, this is the general election, like for that state supreme court justice. So it really makes a big difference as to what happens here. So, by the time we're done with this phone call, there may be different rules put in place by a federal judge, but as of now, the election is taking place not tomorrow, but on the seventh of April which is upcoming Tuesday, six days from now.
[HW]: Well, good. Well, thank you for that quick snapshot analytical update. Let's backtrack a little bit and talk a bit about the essential points of your book and how that leads into the situation that we're now facing because it's not as if you were suggesting that this was going to be a problem-free election before COVID-19.
[RH]: Yes, right. So, the way that I organized the book, Election Meltdown, is that I give four reasons why I think trust in American elections has been declining. Then I talk about the different short, medium, or long term ways that we might try to solve those problems. So just to run quickly through the four ways in which I think ... or the four reasons why I think trust in American elections has been declining. First thing I'd point to is that across the country, Republican legislatures, not all but some, have passed laws that make it harder to register and to vote. Voter ID laws get the most attention, but they're probably less important than other rules, for example, rules that limit registration. For example, I opened the book talking about a law in Kansas that required you to provide, a show me your papers, provide documentary proof of citizenship before you would be allowed to register to vote like a birth certificate or a naturalization certificate.
These laws are invariably defended as meant at preventing voter fraud or promoting public confidence. In fact the, I think, undisputed empirical evidence is that they do neither of those things. And the book opens up with a trial in Kansas in a case that was heard a few years ago called, Fish v. Kobach, about Kansas documentary proof of citizenship law, where Kris Kobach, who is former Secretary of State of Kansas, notorious for making unsubstantiated claims and exaggerated claims of problems of voter fraud, had to prove in this trial that non-citizen voting, which is about a documentary proof of citizenship requirement for registration would prevent. That non-citizen voting was a big problem. And he claimed that the few cases he could come up with, the very few cases, were the tip of the iceberg.
And in the end, after a long trial, the trial court concluded that there was no iceberg, only an icicle, this was the judges words, a Republican appointed judge, fourth generation Kansan. There was no ice purchase an icicle made up mostly of administrative error. And so this whole debate over voter fraud and voter suppression convinces many Republican voters incorrectly that voter fraud was a major problem and convinces democrats that these laws are being put in place to try to suppress the vote. So both sides lose confidence because of that.
[HW]: Rick, let me just quickly interject. Wasn't the 2013 Supreme Court decision in Shelby County v. Holder have an impact on this entire issue of potential voter suppression?
[RH]: Sure. So, in the Shelby County case, the Supreme Court killed off a key provision of the Voting Rights Act which said that, jurisdictions with a history of racial discrimination and voting had to come up with evidence that any change they would make like moving a polling place or changing registration rules would not have the purpose or effect of making it harder for minority voters to vote. And with that, Shelby County's decision, where the Supreme Court said that this law was no longer constitutional because it was based on outdated evidence as to which states had problems, this law was a backstop, it really prevented states that were covered by it from making changes. And Kansas was not one of those states.
So there are lots of places where it's open problems, but in North Carolina, and Texas, and Georgia, in places where in the last few years, we've seen lots of restrictive voting laws, those have now gone through and the alternative is trying to sue under other parts of the Voting Rights Act like section two of the Voting Rights Act or under the Constitution, much harder standards to meet and lots of these restrictive laws have been able to remain in place. So, that's been a huge difference.
[HW]: Just a couple of days ago the President, I think it was in one of his offshoots of one of his press briefings on coronavirus referred to some potential changes in voter registration laws where he said something to the effect of some of the changes have gone into effect. He said, "No republican would ever be elected anywhere." What exactly was he talking about there?
[RH]: So the comments were made on Fox and Friends, it was the President calling in, so it wasn't during one of his coronavirus conferences. And this gets into the 2020 election preparations, which we're going to talk about a little later here. But just to preview that, one of the proposals that Democrats made in phase three of the coronavirus federal bailout law was that there would be no excuse absentee balloting everywhere in the country, meaning, in the one third of states where you have to have an excuse, if you try to get an absentee ballot, you would no longer need that excuse. And it proposed a number of additional changes as well.
This provision that was not in the final law, the only thing that was in the final law related to voting provides $400 million in funding to states for COVID-19 related expenses in running the election, which is far too little, we could talk about that too. This was a provision that Trump said would mean no Republican could ever be elected to office again, which is manifestly untrue. There are, I think, five states, including Utah, where they have all vote by mail elections, not just no excuse absentee ballot, and Republicans are regularly elected to office. So, that's just a ridiculous thing to have said.
So, yes, what it showed was that Trump believes that increasing voting is going to work to his advantage. And just today, The Washington Post had an editorial saying, why is Trump afraid of people voting, and so it's unfortunate that even or maybe especially in this time of pandemic, we are having people who are trying to make it harder for people to vote. And of course, now is the most important time to vote because our leaders are making life and death decisions. And really, we want to have as many people who are eligible to vote be able to cast the vote as possible.
[HW]: Right. Okay, so let's go back to the other essential points of your book, which I interrupted, sorry.
[RH]: Sure. So I said there were four reasons why I think confidence in American elections is declining, why voters express the view that they're worried about foreign interference, worried about a fair count of vote. So one is this voter suppression, voter fraud fight. The second one are pockets of election administrator incompetence. I think most election administrators do a pretty good job in this country. I should point out, come November, we're not going to have a single election for president, we're going to have something like 9,000 different elections because we have a hyper decentralized election system. Our election system is only as good as the places where the weakest links are. And the reason for that is, when there is a very close election, attention focuses immediately on those who are the worst at running elections.
One of the examples I use in the book is Brenda Snipes, who was the Broward County election official, who just had a terrible track record of running elections. In one election, she failed to mail 50,000 absentee ballots to voters who requested them, another election she left a medical marijuana initiative off a number of ballots. And I focus on the 2018 election where there's a very close race for US Senate in Florida between Bill Nelson the incumbent Democrat, and Rick Scott was the governor who was running against him, and she just did such a terrible job and it provided an opening for Trump to claim that she was actually trying to steal the election.
And so I do think that when ... And I should say, Snipes was a Democrat and she was consistently re-elected to office without really any opposition because people don't pay attention to these issues, despite the fact that she had one of the worst records anywhere. So pockets of election administrator incompetence then become magnified in a close election, and people on the other side accuse the incompetent election administrator of engaging in fraud. So that's the second problem.
The third problem is what I call dirty tricks. Now dirty tricks have been around as long as we've had American elections, we've had dirty tricks. We've had people slashing tires of those who are going out to get the vote out, we've had phone lines jammed of election protection hotlines, we've got all kinds of things. But now lots of dirty tricks can take place on social media. We saw the Russians trying to provide misinformation about voting and try to foment discord. We saw the Russians also steal democratic official election emails and then release them, hack them and release them to journalists potentially affecting the election, and the probing of voter registration databases in all 50 states. So the Russians were trying to at least show that they could get in and potentially tried to make changes. There was no evidence it actually made changes in those voter registration databases, but all of this makes voters worried about foreign interference as the polling shows.
And then the final a fourth area that I talked about in Election Meltdown for where I see problems is in the rhetoric that people used to talk about elections. Lots more rhetoric today of stolen or rigged elections. Certainly you hear it from Donald Trump, he claimed, somewhat notoriously, that three million to five million non-citizens voted in the 2016 election, all for his opponent Hillary Clinton, somewhat magically matching the amount by which Hillary Clinton won the popular vote. There's absolutely no evidence to support this. The only person who came close to supporting Trump's ridiculous claim was Kris Kobach, the person I spoke about earlier, who tried to win that Fish v. Kobach case, and I should mention, that not only did Kobach lose that case, he was sanctioned in that case, both for misleading the court as to the advice he had given Donald Trump, as well as for how he ran his trial.
Now, he decided rather than use the attorney general's office, he would run the trial himself. And he did such a poor job with the rules of evidence, I think the students would be quite interested in this point. He did such a bad job with the rules of evidence that the sanction that the judge imposed was that he had to take a course in trial fundamentals. He took that course, it was $379, took it online, and he billed the state of Kansas for that.
So, lots of incendiary rhetoric, but it's not only coming from Republicans, prominent democratic example is the 2018 race in Georgia for governor between Brian Kemp, the Secretary of State of Georgia, and Stacey Abrams, who was running as a Democrat against him. Kemp did some terrible things as Secretary of State. He was both running and running in the election. He falsely accused Democrats and pasted false accusation on the official Secretary of State's website of hacking into the state's voter registration database, when in fact what they did was they reported third party information they received that the voter registration database was not secure. So, really all kinds of problems with how the election was run, but no evidence that what Kemp had done had actually changed the election results.
And I think it's very problematic for people like Ohio US Senator, Democrat, Sherrod Brown, to say that the election was stolen. I think when you make that kind of accusation, you get into a debate as to whether or not there's enough evidence that election results were actually changed, as opposed to focusing on the question, why is the state making it harder for any eligible voter to be able to register and to vote? And it's self defeating. Why should voters on your side turn out to vote when you're telling them that the vote is being rigged and is stolen against them?
So, those are the four areas and I think they work synergistically together, as I've tried to indicate, in undermining people's confidence in the process. And of course, all this analysis came before the coronavirus, and if you think now about the misinformation, for example, that could be spread, don't go to the polling places, voting machines are especially susceptible to spreading the virus, or polling places are closed, you can imagine all kinds of misinformation that could come out that could affect the election, the election is canceled, all kinds of crazy things that normally nobody would listen to, now potentially, could be something that people would actually take seriously if they saw it in this environment of a pandemic.
[HW]: Well, let's go back though to your third point, which had to do with dirty tricks. Large social media organizations were severely criticized for the role that they played in not monitoring false information during the 2016 presidential election. And I’d just like to hear you talk a little bit about the aftermath of that and what's happening in that regard now, because they don't all seem to be aligned as to how they're going to respond.
[RH]: Sure. And an interesting contrast is how they're dealing with coronavirus related misinformation. So, it's widely seen that Facebook, and Twitter, and Instagram were all sites for the spread, not just of misinformation, but also just organizing Americans in ways to pit us against each other. And one of the famous things that was reported was that the Russians set up two Facebook groups in a, I think it was a Florida city, pro-immigration, anti-immigration and they organized a rally and a counter rally that real people bought into and showed up at on these two foreigners street corners, and the whole thing cost the Russians $200, setting up these fake groups.
There was a lot of activity aimed at the African American community trying to convince them that Hillary Clinton didn't care about you, don't vote. It wasn't, go vote for Donald Trump, but trying to suppress the vote by saying don't even bother to vote.
So, there's just a tremendous amount of mischief that went on in 2016. And the question is, what do we do about that for 2020? These are private companies, they're not governed by the First Amendment, they don't have to let anybody speak, they can decide how they're going to run their platforms. And Facebook is trying to eliminate what they're calling inauthentic accounts, which are accounts where people are impersonating other people. So if you're in a boiler room in St. Petersburg, Russia, and you're pretending you're from Oklahoma, maybe they're going to remove you. When they see concerted efforts to try to spread inauthentic election related speech, they're trying to take that down. But one notable thing that they've said is they're not going to take down political misinformation if it's coming from a political officer or a government official. So Donald Trump could lie about something related to the election and Facebook's position is they're not going to take that down.
Twitter has taken a somewhat different view in terms of they've eliminated all political ads. Of course the devil is in the detail there as to what counts as a political ad. Facebook is requiring reporting about funding of political ads, but again, the details matter there and the reporting is not very good. So you could set up a fake organization, cause that organization to pay, that would apparently be good enough for Facebook.
Google now there's just a controversy that it just got onto my radar screen today, Google is not allowing any advertising that's mentioning COVID-19, which is potentially disrupting political ads where people might be criticizing Donald Trump. So, they're trying different things, and of course, they're fighting the last war. They're worried about the problems we saw in 2016, when in fact, there could be different problems in 2020. And so, the social media companies, I think, have not done a great job, it's not clear that there's a better solution. I don't know that we want the government to decide that we're going to give the Federal Trade Commission the power to decide what speech Facebook can include. I mean, we're really start getting some dangerous first amendment territory.
But it seems to me that one of the biggest problems is that these large companies don't have all that much of an incentive. They want to draw eyeballs, so it's really going to be public pressure. And I think ultimately, perhaps the use of antitrust to break up these companies that there's more competition, which might help to get these companies to do a better job in terms of policing this kind of stuff.
And just finally, on the coronavirus area, the companies seem to happen pretty good at removing false coronavirus information. For example, people selling pills or sprays that are supposed to stop coronavirus. They seem to have an easier time with that than ferreting out political misinformation. I think, that's understandable because there's much less of a dispute over whether somebody's vitamin or spray is going to prevent coronavirus than there is, for example, over whether a political official makes a statement that fact checkers would rate as false.
[HW]: So this looks like it's going to be a continuing problem because it's a division amongst the large private companies, government, as you're saying, it's question about what exactly they should do and seems pretty impossible for any nonprofit organization to monitor this in any way because there's so much flying across the internet every day, right?
[RH]: Right. The volume is huge and one of the concerns about the way that information spreads is that, something gets put out there by a foreign source, and then it gets picked up by some fringe domestic sources, and then ultimately, it gets spread. So, for example, when some of those stolen emails came out in 2016 from the democratic officials, at first, they were not getting any traction until the Russians reached out to WikiLeaks, and reached out to some fringe American publications, and eventually it got the attention of Politico and he New York Times, and then things spread.
There are lots of computer scientists and social scientists who are studying the way that misinformation spreads and the kind of networks that occur. One thing that Facebook is trying to do is if you try to share a post that has been found to be false by an independent fact checker like the Washington Post fact checker, factcheck.org, you'll be warned that it was found to be false before you spread it again. That can't really work well in real time, as a former journalist, fact checks take time, you can't easily say, that's just false and that's it. So, it's really hard to know because of the instantaneous nature of all of this what to do.
I was giving a talk about this in Santa Barbara, I think it was the last public talk I gave before we had the shut down. There was a lot of support in the audience, which is made up mostly of non-lawyers for a waiting period before you could post something on social media, the kind of things that would be considered a priori restraint of speech and almost certainly unconstitutional. But among non-lawyers, there's a lot of support for what many lawyers would considered to be violations of the First Amendment. I think that it just shows you that we have a public sentiment towards free speech, I think is shifting in some somewhat dangerous ways because of the legitimate fear of misinformation.
[HW]: Great, thanks. So looking ahead to the rest of the year, it looks like we're going to have to have a lot of increase of mail voting, voting by mail. And earlier you talked about there not being just one election, that there being 9,000 elections, I wonder if you could sort of give us a little primer on the current status of mail voting, any legislation that will make it easier, and what the pros and cons of mail voting are.
[RH]: Sure. So, vote by mail is tremendously convenient for voters who use it. You get your ballot in the mail, and in California, for example, where 60 percent or more of voters vote by mail, you could get permanent vote by mail status, meaning you don't have to request the ballot each election, it will just automatically be sent to you and you can send it back. Sounds great, sounds convenient. And for some people, it's great, that's why we have, as I mentioned, five states that are all or mostly vote by mail.
Other states use vote by mail much less commonly, you have to have an excuse. I think about two thirds of states have no excuse absentee balloting. I certainly think that if we have anything like the situation we have now where people are afraid to or ordered not to go out for unnecessary purposes, we've got to use more vote by mail, because otherwise, potentially millions of people are going to be disenfranchised.
But vote by mail is not perfect, let me mention some of the issues. Number one, vote by mail ballots are much more likely to be rejected as not complying with the law than a ballot you cast at the polling place. Some places you have to matching signatures, and a person has to decide if you're signatures match. I don't know about you but I do very little handwriting these days, my signature doesn't look anything like it looked 10 years ago or on my driver's license. In some places, voters are not notified if their ballot is rejected because of a lack of a signature match, or lack of a witness, or whatever the problem is, they're not given a chance to cure, there's a number of lawsuits over this. We know that at least in one county in Georgia, where there was a lawsuit, minority voters ballots were more likely to be rejected, so that's a problem.
We know that not everybody can easily get a vote by mail ballot. People living on Native American reservations, for example, often do not have regular mail service, and so they have a problem. There are some people who are distrustful of the mail, there are homeless, right, so there are populations that don't have easy access to this. People who are disabled who can't use ballots that are coming in the mail, they need to use an electronic machine where they listen to the ballot for example and record their votes in some way. So, a vote by mail is not perfect.
Vote by mail, we also know that although voter fraud and election crimes are quite rare in this country, when they do happen, about a quarter of time they happen involving tampering with absentee ballots, I described in the book, Election Meltdown, the 2018 US congressional race for the ninth congressional district in North Carolina, where the Republican candidate hired an operative who engaged in what appears to be ballot tampering, he's waiting to go on trial for this, including potentially destroying ballots, or altering the votes on the ballots, or voting blank ballots. Anytime you have voting outside the presence of election officials, you run the risk that there's going to be some tampering with ballots, so that's not perfect. And that raises a lot of concern for me in terms of issues of voter confidence.
You can imagine, for example, let's take Michigan and Pennsylvania, two states which were key to the Donald Trump victory in 2016. Both Michigan and Pennsylvania have now moved, unconnected to coronavirus, but they've now moved to no excuse absentee balloting for the fall. There's going to be a flood of absentee ballots that are going to come in, it's going to be hard for them to handle even without coronavirus, but you need to have more scanners, you need to have workers who are trained to be able to do this. It's very possible, for example, that Donald Trump is ahead in those states on election night based on the in person ballots, but when the ballots are ultimately counted, the vote total shift from Trump to Biden, for example. And it's possible that both sides claim victory and there is a fight over the Electoral College votes in Congress.
So there's all kinds of problems that could happen because we know two things about absentee ballots. One, we know this from California, they take a really long time to count. And number two, at least in recent years, the late arriving absentee ballots have tended to favor the Democratic candidates and you get what's called the blue shift. And we saw this in Orange County and around Orange County, where seven congressional races had Republicans in the lead on election night only to see those seats, including our former colleague, Katie Porter's seat, go from a Republican apparent winner to a Democratic winner. So, there are lots of issues related to these absentee ballots in this way.
[HW]: Now, earlier you were saying that the Congress had appropriated I think $400 million that was supposed to help in the conduct of the next election, and you said that wasn't nearly enough. So could you tell us a little about what that money is supposed to do and what more money ought to be legislated in?
[RH]: Sure. So, the estimate that the Bipartisan Policy Center came up with I think, was $1.5 billion for additional funding, I remember it was $400 million that was paid. And the Brennan Center estimate was $2 billion. So what is that paying for? A lot of that is the additional cost of printing ballots, of having employees check ballots to make sure that ... we have to state, for example, where you could vote in person or by mail, you have to make sure that someone doesn't vote twice. You have to make sure that the identity of the person is correct, that they filled out their form correct. If, for example, the type of witness signature, was that properly done. So it's very time intensive, labor intensive, scanners cost money, postage, and not every place offers free postage back of the ballot. So you can imagine, under locked down, do you want to go to the post office and get a stamp? See, all of these things make a huge difference.
So that is part of the reason why these estimates are so high, but also, I think, just about everybody agrees in those states that have a ballot vote by mail option, that they still need to have an in person option for people, and then you need to secure the polling places. What are you going to do to clean the voting machines? Are you going to find a location where you can spread people six feet apart? So all of these things cost additional money.
So, $400 million might sound like a lot of money, but I think it breaks down to the state of Michigan getting something like $12 or $14 million, which is not really that much when you think about the expensive nature of all of this. And of course, this is at a time when we're talking about all these people being unemployed, we're talking about all these businesses being closed, but one of the later ramifications about it means that state budgets are going to be really pushed because there's going to be no tax revenue coming in from these regular sources. And so states are going to be really crushed, they're not going to want to spend money on election stuff when they could be spending money on PPE for first responders. I mean, that's got to be at the top of the list.
And so, really this is a place where Congress needs to come in because when we talk about health, we also need to worry about the health of our democracy, especially at a time where politicians are making very controversial decisions. The voters need to be able to weigh in and you don't want the vote to be conducted in a way where thousands or millions of people are not able to express their preferences for how things should go going forward.
[HW]: Well that certainly makes sense. I mean, in the 2000 election, was probably six to six and a half weeks before the election was actually conducted before we had a final result. And one of the things that you seem to be suggesting is that even if everything went pretty well this fall because of the deluge of absentee ballots and mail ballots, and the amount of time it would take together count them, it seems increasingly likely that we may not have a result on election night.
[RH]: Well, right. So, if we're talking about for the presidential election, it's going to depend on if it's close in states that matter for the Electoral College. So in California, if the prior track record is any indication, the Democrat is going to be Donald Trump. And even though we may not know the exact total and millions of ballots will take weeks to count, they're going to be able to call California on election night. But Pennsylvania, or Michigan, that's where it could go three days, five days, a week. And remember, there's this very strict time frame that applies to presidential elections. The whole thing has to be resolved in about five weeks, between the time that people vote and the time that the electors are chosen in the Electoral College and then the vote are counted by Congress. So there really is a limited window in which this stuff can happen.
And so, yes . And it's not just a concern about delay because everybody wants to know, it's a concern about delay because if you don't have a result or you have somebody in the lead, that person may declare victory and it may change, and Trump already in that 2018 US Senate race in Florida, tweeted about how we should go with election night results, only those, everything else isn't ... He said "The late arriving ballots were massively infected." Which was, again, an unproven statement. But if Trump starts making those allegations, you can bet that many of his supporters will believe it.
[HW]: Right. Now one of the most, I guess, wild discussion subjects in recent months is just the entire notion of that Trump has made all these jokes about staying in office beyond this term. He says he likes to jab people by saying two terms, three terms, four terms. I mean, any possibility there?
[RH]: Well, the Constitution could be amended, that's a possibility. I don't think that is likely to happen, given what it takes to amend the Constitution. It would be something extra-constitutional. Then again, I remember when Michael Bloomberg was running for president, he actually got the New York city charter to be changed so he could run for a third term. Trump says he does this to stick it to the liberals and that he's just joking around but jokes about remaining in power past your term, I think undermine democratic norms, right.
So the democratic norm is, you stick to your term, and you follow the term length, and then you're out. So, that kind of talk worries me. It worries me people say, what if Donald Trump won't concede? Do the Secret Service have to remove him? I think that, that misunderstands the nature of how this might play out. Donald Trump wouldn't fail to concede, he would declare victory based on some evidence that he would claim gives him the victory.
Here's one of the nightmare scenarios I worry about and I think this is one we didn't talk about back seven weeks ago, or whatever it was that we did our initial talk. Imagine that because of the virus, people can't go to polling places safely in Pennsylvania. And the Pennsylvania legislature, which is majority Republican, decides we have a power under the Constitution to choose Electoral College votes ourselves directly. You may remember in Bush versus Gore the case that ended the 2000 election, that you and I spend a lot of time talking about that 20 years ago, when you were a reporter for the LA Times, I was following the stuff.
In Bush versus Gore, the Supreme Court said the Constitution gives the state legislature the power to choose presidential elections. And even though the state legislatures have given that power to voters, state legislatures can take it back at any time. So imagine that Republican legislature decides, we're just taking back our power, we're going to appoint electors directly for Donald Trump because we don't think that there could be a fair vote conducted on Election Day because of the virus.
I mean, I think if that happened, there would be rioting in the streets. I think that would be a moment of profound ... It would be profoundly anti-democratic, even if it is constitutional, because our norms have changed so much from where we were when the Constitution was first drafted. So, that's a real nightmare scenario that I think would worry me. And it's possible, for example, that voting takes place and the legislature decides to do this anyway, and that there are competing slates of electors sent to Congress from Pennsylvania. And then there's a whole series of rules and procedures that Congress has put in place to deal with disputes over electoral college votes, and not only are they not clear, it's not even clear if they're constitutional.
Which brings up one of the other nightmare scenarios I mentioned in the book, which is, is the Supreme Court going to get involved? And of course, the Supreme Court got involved in the 2000 election, it was very controversial, but people moved on from that, more or less, after a lot of angry Democrats. But remember there, the courts split five to four, conservatives versus liberals, two of those liberal justices were Republican appointed justices, David Souter and John Paul Stevens. Now all the conservatives on the court were appointed by Republican presidents, all the liberals by Democrats, and if there's a five to four decision with the conservative Republican appointed justices siding with Trump, and the liberals siding with Biden or whoever the Democratic nominee is, and especially after Merrick Garland and all of that with Gorsuch with so called stolen seat, as Democrats claim, you can imagine that even a Supreme Court decision which would resolve the election is not something that would be considered legitimate if that nightmare scenario occurred.
[HW]: Now, this is not the first time that the United States has confronted holding elections in the midst of a pandemic. In 1918, which was not a presidential election, but it was a congressional election all over the country, there was a flu massive pandemic here. It killed 675,000 Americans and 50 million people worldwide, is there anything that happened in the conducting of the 1918 elections that we can learn anything from?
[RH]: Well I can tell you there's a good article about this in the Election Law Journal, which is a journal I used to co-edit by a guy named, Jason Marisam, it's called, “Judging the 1918 Election,” I think is the title, Election Law Journal 2009. And what he reports is that things were very uncertain. And in some places where the virus was raging, turnout was way down, and in other places where ... And there was no regular vote by mail. I mean, there was a little bit of absentee balloting for soldiers and people overseas, but it was not widespread.
Some places voting took place closer to normal and other places it was very hard to vote, and there's actually pictures of people lined up at polling places wearing surgical masks. A picture that until a few months ago, we would have looked at and thought, this is the most bizarre thing possible in America and yet, we may have pictures like that in November. I mean, I hope not, but who knows what things are going to look like in November.
So, one of the things we know, and this goes back to the whole public health concern is that, places where they had earlier lockdowns, saw less spread of disease, and they were able to conduct the election a little bit ... they were able to get more participation in the election. So, if you care about maximizing turnout in November, you want to shut things down now so that things are calmer and it's possible to conduct business in public and including the election. But of course, now we have the ability to have people vote by mail. And I would advise everyone, even though absentee balloting is not perfect, I would advise everyone, if you have the opportunity to vote by mail, why not do that for this election? It will also take the pressure off election officials in terms of filling polling places and avoid exposing more people in that sense.
And the worst that happens is you end up having a vote by mail ballot that you didn't really need and you could have voted in person. I mean, that's not such a big downside. So, my personal advice, I never vote by mail, but I will vote by mail in the November election.
[HW]: Right. Before we get to questions, I was just wondering if there are any other significant reforms that you raised in the book that you would like to mention today? I realized that some of them may not be able to come to pass in the short term, but you had a lot of proposals in the book.
[RH]: Well, actually, rather than address those, let me say something slightly different which is that, one of the last conferences that we held at UCI before we had to shut everything down was a conference I put together because I felt like there were no good short term solutions to this crisis in confidence, a conference called, “Can American Democracy Survive the 2020 Elections?” And I got together leaders from law, tech, politics and media. We had a public conference and then the next day, about 18 of us had a private meeting, where we came up with proposals for how to try to address the very real problems that we face as a country in running an election where people are going to accept the results as legitimate. And of course, right after the conference, everything shut down.
And so we are in the process of drafting a report. This is what I've been starting on today. We have the four groups law, politics, tech, and media, their subcommittees have met, they have their recommendations, so we're going to be putting out something like 15 to 20 recommendations in about a month for the things that ... because it's a multifaceted problem, it's the kind of thing that requires a multifaceted solution.
So, for example, the media has to explain that election result delays does not mean that there is something fraudulent going on but that counting takes time. And this is especially important now, given the surge in absentee balloting that we're expecting. And so people's expectations are so if a candidate comes and declares victory early, the media has to be out there saying no, wait, it's too early to call, that has to be a key factor. So, lots of recommendations coming, stay tuned in about a month I'm sure that all the UCI social media will be blasting out this report from this Ad hoc committee when we get together.
[HW]: Okay, thanks. So if people have questions, if you can send them by chat on the Zoom system. I have gotten one question by email that I want to read to Rick and here is the question. The person says, it has concerned me for some time that President Trump would try to manufacture a crisis so he can somehow cancel the November election. Now the crisis is upon us, with emergency powers and declaring martial law across the entire US he could conceivably cancel the election, is there anyone that would have the authority to stop him? And again, what status would the US Chief of State have if not elected? Anything you can say about that?
[RH]: Sure. Well, you may remember we got this question several weeks ago when we did the first panel and I get this question I think everywhere I go, and I got this question before the coronavirus issues. So let me say, first of all, the Constitution gives Congress not the President the power to set the dates for elections. And Congress passed the statute in 1845 setting the date for the election, and the procedures for when the electoral college votes are counted. And the 20th Amendment says that if you don't hold an election and choose the president by January 20th, then you go to the order of succession.
Now there's a whole question as to whether or not it's constitutional to have the Speaker of the House in the line of succession and all that there was an interesting piece at Lawfare by Jack Goldsmith about that question, but Trump would no longer be president if the election were not held. I don't think… you know, it would be unconstitutional for Trump to try to postpone the election, so I don't see that happening. And also, I think, it would be unconstitutional for a governor to cancel that election.
But you can imagine the president declaring martial law or using other powers and saying, everyone in Philadelphia needs to stay home, that could have a profound effect on the outcome of the election without actually canceling the election. So I think we need to think about that or the other scenario, which I mentioned earlier, which was trying to get state legislatures to pick electors directly. And in Michigan, in Pennsylvania, in North Carolina, in Arizona, in Wisconsin, just named a bunch of swing states where in part thanks to gerrymandering, there are Republican majorities in all of those states. And there's your ball game right there. But that's not canceling the election, but it is, I think, profoundly undemocratic.
[HW]: Great. Well, next question I have is a question that is somewhat ghoulish but altogether realistic in the present moment. The person asked, what happens if one of the nominees dies from COVID-19 before the election, would it mean that the nominee's running mate would become the nominee?
[RH]: Okay, so we have to divide this up into three time periods. I'm going off of my memory here so some of this may not be accurate. So check your Constitutions and your rule books before relying on this. But the period before the nomination, so the official nomination of Trump and Biden or whoever's the Democratic nominee, won't happen till the summer. If someone died before then, then the conventions will choose the new nominee. And so we already have a procedure in place for that, that's built in.
If the nominee dies in the period after the convention, but before the election, if it's before the ballots are actually printed, there are provisions for the parties, through their executive committees, to name a replacement. They can name their replacement and it might be a situation where a vote for the deceased candidate would actually be a vote for someone else. And then the Constitution provides rules for what happens if the President Elect dies before ... Of course, I guess we have the Electoral College the Congress could always potentially try to choose differently.
But then afterwards, then the constitution kicks in and the vice president elect would come in for the President. So, there are procedures for all of this, it is a ghoulish question, but the idea of a presidential candidate or President Elect dying is something we've had to deal with in American history before this pandemic hit.
[HW]: Right. Okay. Well, that seems to be ... I'm quite happy to entertain, we've got a few more minutes, entertain more questions, but that's the only other one that's come in. While we're waiting for the next question, Rick, anything that you'd like to mention that somehow I haven't asked you about?
[RH]: Well, yes, so one thing that we didn't talk about are all of the other elections that are taking place, right. So we have so much of a focus on the presidential election, but think about all of those other down ballot races, everything else on the ballot, and lots of places to save money or for other reasons that consolidated the elections, so that we're not having local elections as often and in off years. I don't know what campaigning is going to be like. If you can't go out and shake people's hands. It's one thing if you're Joe Biden and you can have millions of dollars or Donald Trump, millions of dollars in advertising on TV, and everybody's home watching TV now because what else are we going to do?
But if you're running for State Controller, you're running for some local office, it's going to be very hard to get the word out. And I think we haven't really focused on how campaigning is so important to our democracy. Voters have to learn about candidates and without the opportunity to be able to communicate with voters, that also undermines our normal democratic processes. And so I think we need to think more carefully about that, as well as the question of voter registration. So many people registered to vote in presidential election years. First time voters are people who've moved, and in part that's because of concerted voter registration drives, that are really hard to conduct if you can't go door to door knock on people, or you can't have your table outside Trader Joe's trying to get people registered.
I mean, not even think about the initiative process. I mean, who's going to go and ... I don't want to pick up a pen and sign a petition for a voter initiative now, what if you're an independent candidate, you need to collect signatures? And so there are all kinds of other issues at the sub presidential level where our elections are going to be somehow changed or distorted that I think we're not really giving enough attention to.
[HW]: And there's something else that's going to exacerbate that which is the shredding of local news organizations all over the country. The amount of journalistic personnel who would be writing about local campaigns was substantially diminished before the COVID-19 epidemic hit us, and now every day you read more stories about local news organizations treading staff and that is surely going to exacerbate the problem you just described.
[RH]: Yes. In fact, just today I saw earlier in the week Gannett announced, which owns a number of newspapers and was bought by a private equity company a while back. They announced that they're fallowing their employees, everyone is going to give up 25 percent of their salary and their time. And they were saying this about Wisconsin where, as we talked about at the top of this discussion, they're having this major primary under these terrible conditions where the National Guard up being called out, and their primary team, their political team is going to be taking turns taking time off.
Well, there's some really important stories about government accountability that needs to be told especially at this time and having reporters laid off and science reporters, health reporters, right, and lifestyle reporters, I mean, I'm really worried that the LA Times announced they're consolidating sections because who's advertising? I mean, why would you advertise cars if nobody can come in and buy your cars? And so, really, journalism is, I think, a public good for our democracy and we're going to have to think about ways of subsidizing it to make sure that we can have journalists out there providing information that voters need to make intelligent decisions.
[HW]: Yes. Well, we're almost at a time so I'm just going to put on my citizen hat and say everybody register to vote however you can, vote, and also get a subscription to a newspaper or some other nonprofit media organization that's trying to tell you the truth because it's to the benefit of our democracy.
[RH]: And fill out the census.
[HW]: What?
[RH]: And fill out your census forms.
[HW]: And fill out your census forms, yes, absolutely. Fill out your census forms and to better educate yourself, I'll also say, buy Rick's book, Election Meltdown. Thank you all for listening and stay healthy.
[Narrator]: Thank you for joining us for UCI Law Talks, produced by the University of California, Irvine School of Law.
