Rick Hasen on Voting Rights and Election Integrity at the Time of COVID-19 - COVID-19 & the Law Series
Chancellor’s Professor of Law and Political Science Rick Hasen discusses voting rights and election integrity at the time of COVID-19 with Professor of Lawyering Skills Henry Weinstein. Hosted by Veronica Gray, Partner of Nossaman LLP and UCI Law Board of Visitors Member. Introductions by UCI Law Dean L. Song Richardson. Recorded June 4, 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.
[Song Richardson]: Good afternoon, everyone. It's my pleasure to welcome you to this presentation in UCI Law's COVID-19 and the Law series. Today, we'll be discussing a timely and very important topic, voting rights and election integrity at the time of COVID-19. Before I introduce our moderator, I want to recognize the UCI Law team that assisted in developing today's program. They are Rebekah Bergeron, Jillian Henry, Dennis Slon, and Mary Ann Soden. Thank you so much for all of your efforts and bringing us together this afternoon.
And we are very fortunate to have two UCI Law faculty members with us today, Professors Rick Hasen and Henry Weinstein. They'll be introduced by our moderator Veronica Gray, so it's now my pleasure to introduce her. Veronica Gray is a Partner at the law firm of Nossaman LLP, where she chairs the employment practice group. She's a prominent trial attorney with more than four decades of experience representing privately held companies and public entities, and a broad array of employment and labor related matters, including issues related to the implications of COVID-19. Ms. Gray also prosecutes and defends unfair competition and trade secret matters.
Ms. Gray is a sought after speaker across the country on a variety of topics and on trends in the industry that impact employers, including the prevention of sexual harassment and discrimination, the elimination of unconscious bias, and defending and avoiding wage and hour class actions. Ms. Gray has been recognized for her important and impactful work. She was named as "Super Lawyer" by Los Angeles Magazine, and was recognized by Orange County Metro Magazine as one of the region's top-rated employment lawyers. I could go on and on introducing Ms. Gray, but I want you to get to the program. So, please look at her full biography that was included with the program.
Finally, Ms. Gray is not only a brilliant lawyer, but she's also a brilliant photographer, and you can see some of her photography behind her. Her work focuses on street photography and close-up images of indigenous people across the world. One of her compelling photos was recently chosen from thousands of international entries to be included in an exhibit in Russia, featuring 60 women street photographers. So, you can view her work at veronicagrayphotography.com. I am so honored that Veronica is a member of UCI Board of Visitors. She's been an incredible partner and friend, both to me and to the law school. I'm so looking forward to this presentation on voting rights and election integrity at the time of COVID-19. Veronica, I now turn the session over to you.
[Veronica Gray]: Thank you so much, Dean Richardson, for your very kind remarks. It is truly my pleasure to moderate this panel as a member of the law school's Board of Visitors. These are extraordinary times, and this is such a timely and important topic. Just before I introduce our distinguished speakers, as a reminder, we are reserving about 15 to 20 minutes at the end of the conversation for your questions, so please use the Q&A button at the bottom of your screen. If you've already submitted a question during the registration period, we already have them. Please don't re-enter those. Thank you.
Now turning to our distinguished faculty, Professor Richard Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. He holds a Bachelor of Arts degree with highest honors from UC Berkeley, and a J.D., M.A., and Ph.D. in Political Science from UCLA. Professor Hasen is a nationally recognized expert in election law and campaign finance regulation. He's a prolific writer. He is the author of over 100 articles on election law issues published in numerous journals, Harvard Law Review, Stanford Law Review, Supreme Court Review.
His op-eds and commentaries have appeared in many publications, including The New York Times, The Washington Post, Politico, and Slate. You will frequently see him as a guest speaker on many of the new shows. You may want to follow his Election Law Blog because this is such a dynamic area and what we are dealing with. His most recent book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy was published by Yale University Press in early February of this year. It is currently available at Amazon.
At the end of February, Professor Hasen hosted a conference at UCI Law, "Can Democracy Survive the 2020 Elections?" Following the conference, he convened a bipartisan, diverse group of scholars who formed an ad hoc committee for 2020 election fairness and legitimacy. The report issued at the end of April provides 14 recommendations of specific actions that should be taken now to minimize the chances of an election meltdown in November. The report will be addressed during the conversation today. A copy is also available on the UCI Law website.
Professor Hasen will be interviewed by Professor Henry Weinstein, who is Professor of Lawyering Skills at UCI Law with expertise in media law. Professor Weinstein earned a Bachelor of Arts in History and a Juris Doctorate from the University of California, Berkeley, and has undertaken postgraduate work at Harvard University's John F. Kennedy School of Government. He has worked for the Los Angeles Times, New York Times, San Francisco Examiner, and the Wall Street Journal. You can say he's a newspaper kind of guy, and he's written more than 3,000 stories reporting on the ground in 36 States, District of Columbia and Canada. As a journalist, he wrote frequently about election law issues, notably providing extensive coverage of the legal battle leading up to the Supreme Court's decision in Bush v. Gore in 2000.
Professor Weinstein, we're looking so much forward to your interview with Professor Hasen, and I turn the program over to you.
[Henry Weinstein]: Thank you very much, Veronica. I want to thank everyone for joining us for this webinar today. Today is the third program I have done this year on election law issues with Professor Hasen who I've known for 20 years, and I am rather confident that it will not be the last one. I want to make just a couple brief introductory remarks before I started asking Rick questions. I can't and I don't think anyone can overstate the importance of the right to vote. The right to vote is perhaps the most fundamental right in our country because it is the gateway to many other rights. If you don't have the right to vote, you don't have a vote, you don't have a voice in a democratic society. In fact, people have been murdered in this country attempting to secure the right to vote.
Twenty years ago, the nation got a stark wake-up call that our nation's voting systems were far from perfect as a result of controversies in the presidential balloting in the state of Florida. I suspect that all of you know that the word 'hanging chads' became a part of the American lexicon at that time. Since that time, Rick has spent a good deal of his waking hours working on ways to improve voting processes in this country with two major focuses: maximizing access to voting and maximizing the integrity of the voting process.
Rick, your committee formulated 14 important practical suggestions on how to conduct an election during the crisis. For those of you who have not had a chance to read it yet, all you have to do is to Google "Fair Elections During a Crisis" in Google and it will pop up on your screen. The committee's recommendation concerns four major areas relating to law, media, politics, and technology. We don't have time to focus on all 14 today, so we're going to zone in on some that seem the most pressing.
Rick, I'd like to start with recommendation one, which says, states should adopt reforms to improve the absentee ballot and provisional balloting process-both in terms of access and security. Mail-in ballots have been used in this country for years, including, particularly by members of law enforcement. It seemed like something that would be particularly important given that the country's in the middle of a Coronavirus pandemic, but all of a sudden, mail-in voting seems to have become controversial in some quarters. So, tell us a bit about mail-in voting and what your committee came up with in that regard.
[Rick Hasen]: Sure. Before I go further, let me just thank Veronica, and Song, and also Mary Ann, and Jillian and Rebekah, Dennis, and the staff at UCI Law for putting on this program and this series. Thanks to you, Henry, for taking the time to do this again. I feel like every time we talk, there's another crisis. The first one was after the Iowa Democratic Party debacle, and then the next one was Coronavirus. Now, of course, we have social protests and the situation seems to be very dynamic. So, I feel like we have a lot of new material to cover. That's really unfortunate for our country that we're jumping from one crisis to another.
At the end of my book Election Meltdown, which describes why American confidence in the election process has been declining, I was flailing for what can be done in the short term, what could be done to ensure that the upcoming election is going to be successful, because we are in a period of high polarization. We have problems with how elections are administered in particular parts of the country in terms of the competence, there’s a lot of churn about voter fraud and voter suppression. There's a lot of incendiary rhetoric about stolen and rigged elections. Some of that's coming from the president, but it's not only about the president. It goes much beyond that.
So, I convened this group of scholars in those four areas you mentioned: law, politics, media, and tech. A diverse group, ideologically diverse and diverse in other ways, to try to come up with what's the common ground we can find. There are lots of things I would have put in the report if I was writing it myself, but we're looking for more of the common ground. When we started writing the report, few people had thought COVID-19 was going to be a major issue in the United States. By the time we had issued the report, it was a major issue in the United States. So, we reworked and expanded some of our recommendations.
The first recommendation is about making sure that there is a multiplicity of ways for people to vote in November, which means not only voting by absentee ballot but including voting by absentee ballot. Why is that? Well, because polling places are not necessarily safe. In order to hold effective in-person polling place voting, you're going to have to have social distancing, you're going to have to clean machines, you're going to have to have poll workers who are willing to work there and election judges. Since 60 to 70 percent of poll workers tend to be older Americans who are most susceptible to the virus, what we've seen in a bunch of primaries is poll workers pulling out.
So, in the April 7 Wisconsin primary, which was a very controversial primary, we'll probably get into talking about that in more detail. In Milwaukee County, 175 out of 180 polling places were closed. If the virus in the fall looks anything like it does now, mail-in balloting is going to be an incredibly important part of that way that people are going to vote. There's danger that people will be disenfranchised if they can't vote by mail, either because they're going to lack of immunity and be afraid to go to the polling place; or maybe because the lines at the polling places will be so long, because there'll be fewer polling places and fewer workers and more demand, that if you tried to show up at the polling place, you're going to be in trouble. We've seen this in some of the primaries.
So, we agreed as a committee that mail-in balloting needs to be put in place. It needs to be adequately funded. Congress needs to come up with much more money. They've come up with $400 million. They need to come up with billions of dollars, somewhere between $2 and $4 billion for increased costs related to making the election safe. A piece of that is mail-in balloting. You're right that mail-in balloting is not new. It goes back to the Civil War. It even goes back before the Civil War when soldiers who were away from home were able to vote.
In most recent elections, about a quarter of the country voted by mail. So, that's a very significant amount. In five states, including the heavily Republican state of Utah, they have all mail balloting, right? So, everyone votes by mail unless for some reason you have a disability or otherwise want to go to a vote center, you have that option, but it's essentially vote by mail. In about two thirds of states, including those five, anyone can vote without an excuse by mail, if they'd like to. That includes California where about 60 to 70 percent of people have been voting by mail. In the last third of states, people have to come up with an excuse. There's been a lot of litigation which we can also talk about what should count as an excuse under COVID conditions for this.
But historically, mail-in balloting was used more by Republicans than by Democrats. But in recent years, Democrats have started a big push towards early voting, both in-person early voting and absentee voting. This has created a bout of parody between Democratic and Republican use of vote by mail. I think until the president started making claims that vote by mail was full of fraud, this was not a major issue. Those states that have all mail voting do not see great cases of fraud. I can talk about how we know about the numbers of fraud and how are things detected and all of that.
There are some pretty famous instances of fraud with absentee ballots. The most recent notorious one involved a Republican candidate’s campaign manager or campaign organizer in Bladen County, North Carolina tampering, allegedly -- he's been indicted but has not yet been convicted -- tampering with absentee ballots, stealing ballots or voting ballots or destroying ballots. This tampering was serious enough that the bipartisan North Carolina Board of Elections called a new election. They had to redo that election. But these are pretty rare instances. Ordinarily, what we're thinking about when we're talking about absentee balloting is balancing the small risk of fraud against the great convenience to voters who want to vote from home.
Now, the balance is different because we're balancing not just that convenience on the benefit side, but health and safety of voters and the ability of voters to be able to vote in an effective and safe way. That said, there are not only issues with fraud related to ballots, there are issues with ballots being counted. In our recommendations, we talked about this. You're much more likely to have your ballot tossed if you vote by absentee than if you vote in person, because you might make a mistake. Your signature might be found not to match. You might forget to sign, as Melania Trump did a few elections ago, and her ballot was tossed. One of the things we say is state should give opportunities for voters to be able to know if their ballot's being tossed.
Although, it wasn't a committee recommendation, I certainly believe that voters should be given the ability to cure their ballots, that is, come up proof, yYeah, this is me. This is my signature. It just changed. So, a lot of churn about this issue. It's already starting to have an effect where Republicans in the primary seem to be using vote by mail less. I'm actually worried that the rhetoric from the president is going to disenfranchise his own voters, because if he's telling them that it's not a safe way to vote and they don't feel comfortable voting in polling places, then maybe they won't vote at all. Really, it is a safe and fair way to conduct an election. I wouldn't say we should move to all vote by mail across the country in November. That's not really possible, but we're going to have much more of it if we can get adequate funding for it. Hopefully, states can do a better job of it.
[HW]: Rick, to the extent that there will still be in-person voting, how important is it to have a paper ballot or at the very least some kind of an electronic trail of how the person actually voted?
[RH]: We think that's crucial. In our report, we say that there should be some paper record of how someone voted. Now, I should be clear, just to back up. In our country, we don't have a single election system as everybody knows. If you live in New Jersey, it's going to look different than if you live in Hawaii.
In fact, if you live in one part of California, the voting machinery may look different than in other part of California.
[HW]: Right.
[RH]: Some machines are electronic. Some, you're using a pencil, like you're filling up the SAT, bubbling in a circle. Fortunately, we don't have those punch card machines that you talked about, that we talked about 20 years ago in Bush v. Gore, those bad machines for voting that they had in Florida, California and elsewhere.
But the problem with a lack of paper, that is a fully electronic system, one that doesn't produce a piece of paper that can be recounted is, I think three-fold in terms of I'm thinking about it for the upcoming election. Number one, the National Academies of Sciences, as we cite in our report, unanimously concluded that we don't have the technology to have a non-hackable form of fully electronic voting.
Number two, even if you wanted to adopt electronic voting, jurisdictions are not ready to do it quickly, because it takes time to ramp these things up. You're talking about lots of jurisdictions where the election administrators are starved of resources. Some jurisdictions, I believe, are still using Windows 95 software. So, to move to a fully electronic system is a problem. I think we're going to talk later about what happened this week in Washington, D.C., where they accepted some ballots by email, really problematic. So, number one, it's not secure. Number two, not enough time to ramp it up.
Number three and this is key, this was a focus of my book Election Meltdown, is without a piece of paper, voters may not accept the results, right? We're already so polarized, we're already so suspicious, the president is saying things about voter fraud. If a computer announces that the result is candidate X gets this amount, candidate Y gets that amount, and there's no way to verify that other than some zeros and ones in some computer code. Who's going to believe it? We need physical forensic evidence that could actually be examined.
After Bush v. Gore, when that thing was all over, all those Florida ballots, the 6 million of them or whatever there were, they went to Chicago to be recounted by the NORC organization. There was something physical to count. You could actually look at the evidence. So, I think it would be terrible. I was on a recent panel with someone who supports moving to electronic voting. I said I think it would be the biggest mistake we could make. Our report says no online return of ballots. It's fine to deliver ballot materials to voters if that's the only way to get it to them, like sending them a ballot if necessary, that they could be filled out, but it has to be a piece of paper that's returned on the ballot. The piece of paper has to be the actual record of the vote.
So, lots of places have these new electronic machines that are called ballot marking devices. You vote on the touchscreen, this is how it is in Los Angeles County, but it produces a piece of paper and it's that paper that is going to be counted. It's that paper that can be recounted. There are all kinds of issues about counting the barcode versus counting the actual names that are on the paper. But in the end, if there's a dispute, we could always look at those names on the paper. I think we really need that.
[HW]: Right. So, Rick, since you already mentioned that, why don't you just briefly touch on what happened this week with Washington, D.C.'s attempt to use email voting?
[RH]: So, let me put this in the broader context of what's happening with absentee balloting in the primaries. One of the things that we've noted in state after state, having these delayed primaries during the pandemic is that request for absentee ballot are way up. How way up? I want to give you from Georgia. In Georgia, in the 2016 primaries, 36,000 people in the state of Georgia voted by absentee ballot. As of two weeks ago, there were 1.5 million requests for absentee ballots, right? So, we're talking about a huge demand. What we're seeing in state after state, some states are doing better than others and many states are doing very poorly right now, is meeting that demand.
So, what has to happen in most states is if you want to vote by absentee ballot, you have to fill out a request. You mail that request, or you can sometimes online request that ballot, and then that request has to be processed and the ballot has to be mailed out to you. You have to get that ballot in time to send it back by the deadline, which is often either receipt of the ballot by Election Day or postmarked by Election Day. So, in D.C. as in a number of other places, there were a number of people who never got their absentee ballots and there were very long lines. Because of the protests and the social unrest, there were curfews. So, the people in line were being told they needed to leave, even though what they were doing by law, they were allowed to stay in line and vote.
So, the D.C. Board of Elections, seeing all of these people who did not get their absentee ballots in the mail, allowed people to cast their votes by email. I think it's a terrible precedent. I'm glad it didn't happen in a national election where the stakes were high, because that might have violated the law and then there'd be a question about those voters and whether their vote should count and whether they would be disenfranchised. Really a disaster. Not only is voting by email disaster, but to do it on the fly for last minute, terrible precedent. I talked about this in Election Meltdown, when the similar thing was done to deal with a hurricane in Florida.
What I said in the book is that Florida had already enacted procedures. Here are the emergency procedures if we have a hurricane, and they explicitly excluded voting online. Yet, this election administrator decided to take in his own hands. That's really dangerous when you start changing the rules without authority. What happens in a close election? What's going to happen with those ballots? It's just a recipe for post-election fighting in the case of a close election. I don't want to see that happening in November.
[HW]: Right. So, to do these things effectively, as you've already alluded to, is a question of resources. You mentioned the fact that Georgia already has an astronomical increase in the number of requests for absentee ballots, and that's just in the primary. Of course, at this point, there's not much question who's going to win in a primary in Georgia, but for the general election, you may have many, many more. Part of the question is does the state have enough paper? Does the state have enough resources to send out the ballots? How do they send them out? Which neighborhoods get them first? That could all be very important about, whether people get their ballots on time to cast them on time, right?
[RH]: Yeah, let me just disagree with the premise of your question, because even though the presidential primaries are over, you've got a very contested race for the Republican nomination for U.S. Senate, for example-
[HW]: Fair enough.
[RH]: ... between Doug Collins and Kelly Loeffler.
[HW]: Loeffler, yes.
[RH]: There are some important things on the ballot, local races and ballot measures and all kinds of things. So, these primaries, we can't just dismiss them just because the presidential primary is over. There's a lot of lead time. One of the things I've been talking about is flattening the absentee ballot request curve. The idea is that if your state requires you to request an absentee ballot, then you need to do it as soon as possible, because we're seeing this backlog. You're going to need more scanners, right, if a state requires signature matching. In the big states, where they use this a lot, they'll have machines that can match signatures and then knock out the ones that look like they don't match and allow humans to compare them, but it's much, much faster. So, those machines cost a lot of money. You need to hire workers. Are you going to put all those workers in a room? You're going to have to have social distancing. The planning needs to happen now. This is one of the recommendations in making the report. It's like now is the time. You can't think about the stuff in September.
Remember, under federal law, the ballots have to be prepared and mailed out to overseas and military voters 45 days before the election. So, we already have to get this going. Unfortunately, because a lot of these primaries have been delayed, you end up having two elections, one after the other. So, Georgia is not having its primary until next week, and then they have to turn around and start preparing for November. We saw big problems in Pennsylvania, big problems in Maryland. Maryland, the congressional delegation today, made up of I think almost all Democrats, called for an investigation into why the Maryland election was so botched. So, one after the other, big problems. As you mentioned, so important, turnout is just a fraction of what it's going to be in November, because people are very polarized. They're very motivated to vote on one side or the other, and demand is going to be very high. Without adequate resources, without adequate preparation, we're just asking for trouble.
[HW]: So, let's focus in on that for just a second. You said that Congress has authorized the spending of $400 million. You mentioned the terms of between $2 and $4 billion being necessary. What are the signs that that additional money will be forthcoming?
[RH]: Well, so you've had this kind of stalemate between the Democrats and Republicans. On the one hand, the Democrats are pushing for more than just money. They've called in their proposed legislation for states to offer mandatory absentee balloting, and not only for November but forever. I think that was a mistake. I think the focus should be just on this election. We shouldn't be trying to make major changes to rules on that side. On the other side, you have Republicans who are hearing the message from President Trump that mail-in balloting is not safe. They're trying to limit that. So, there's been kind of a stalemate.
The reason I have some hope that more money might come through is because you do have state election administrators and local administrators in solidly red states who are going to their members of Congress and their Senators and they're saying, look, the requests for these absentee ballots are coming. Our costs are going way up. We need federal assistance. So, I think it's certainly possible that more money will come through. Whether that money comes through or not, there's going to be a great demand to vote this way. That means that we run the risk of shoddy election administration because of inadequate resources, and that further can both undermine the fairness of the election itself and undermine the public's confidence in the process.
One thing I'm worried about and write about in the report and I write about it a little bit in Election Meltdown is it takes a long time to count absentee ballots. If there's not enough money to process those ballots, it might be a week or two after the election before we know who the winner of the election is. You can imagine a situation in a swing state where one candidate's in the lead on election night and declares victory. And then it's a week later that the ballots are all counted, the other candidate has won. That is going to create a lot of anger and uncertainty in a hotly polarized atmosphere around this presidential election in particular, because Donald Trump seems to be a very polarizing figure. You love him or you hate him.
We know that 40-something percent of the public at least is going to be very disappointed with the election results in November. Let's not give the people who are disappointed a reason to wonder about whether the election was conducted fairly.
[HW]: Okay, we'll come back to a little more of that in a second, but I want to go back to something else you said. Let's talk about the way this money gets allocated, because it had some practical ramifications. Of the $400 million, how is it determined what states get that money and how much it?
[RH]: So, first of all, I should say that of the $400 million, it includes a matching provision. So, the state has to come up with 20 percent of the money in order to be able to access the money. In a lot of states, the state legislators have not met because of the pandemic. So, they haven't been able to get the money. So, that's been a real problem. In terms of the allocation, it's a formula that goes through the United States Election Assistance Commission. I think it's based on the size of the state, the population of the state, is how the money is divided.
So, I don't think there's any kind of preference for red states or blue states or anything like that, but the match requirement is proven to be an obstacle. So, there's been some lobbying of Congress to drop that match requirement. I should say the other thing is it's a block grant to be used for increase election expenses related to Coronavirus. It doesn't say you have to use it for mail-in balloting. It could be from making your polling places safer, hand sanitizers, plexiglass, whatever it is you're going to do to do that.
[HW]: Right. Now, getting back to the point you're just making about the slowness of counting, particularly if you have an increased number of mail-in ballots, one of the major, and it seems to make quite significant, recommendations that your committee made has to do with the media and media educating voters about the question of the counting process. So, that because as you know or I suspect most people in the audience know that the night of a big election, and people are often up late, waiting to hear who won, who lost, of course. We had six weeks after the election, I mean, in the 2000 election, that determined who won.
A big part of that is if things change, then all of a sudden, you're saying that people may become suspicious. And as we know, sometimes -- I mean, in general, changed results don't necessarily mean that there's been fraud. I mean, just for example, in the last congressional race in Orange County in District 45, where I'm now sitting, initially, the Republican was ahead and then over the next several days, the Democrat Katie Porter immerged as the winner. So, talk a little more about what the media should do and what you think are the prospects of the media doing what you think they ought to do.
[RH]: Right. So, this is what I consider one of the key recommendations of the report, and it's in the media section of the report. Again, if you want to see the report, just Google the words 'Fair Elections During a Crisis,' and you'll be able to find the report and pull it up. So, here's the issue. We have, especially in cable news, a desire to be the first ones to call the state. We've seen enough ballot returns to be able to call the state. You'll see sometimes, it'll say 100 percent of precincts have reported.
Well, if you're going to have a lot of mail-in ballots, and that 100 percent of precincts reported does not include the number of ballots that are left, voters are going to wonder, well, what's going on? Why is it taking so long to give a result? Or why is the result changing when you've said on election night you have all the ballots? This problem is going to be exacerbated by not only the flood of absentee ballots that we're expecting because of Coronavirus, but also because a number of states that are going to be experiencing this flood don't have experience counting this.
So, California, it would already take us a month to count all the ballots. We already have 60 to 70 percent of the ballots coming in by mail. There's going to be more. It's going to take a long time. Of course, in California, I should say, right now, there's a plan to have everyone be mailed a ballot. This is now subject to a lawsuit, which we can talk about, but you don't have to request that ballot. It will just automatically be sent to you. But there's going to be a flood of these ballots. It's going to take time. One of the things we know, these patterns may not hold up given the Coronavirus and how that's going to change how people vote for November.
One of the things social scientists have noted over the last few elections is that absentee ballots tend to shift towards Democrats at the end. Democrats tend to vote later than Republicans. So, if you're Republican, you're more likely to send your vote in two weeks before. If you're a Democrat, you're going to do it at the last minute. So, this explains in part, why there was this blue shift. Why you saw a number of Southern California congressional races start off with the Republican in the lead, and every night, Neal Kelley, the Orange County Registrar would issue new numbers. Election after election, including Katie Porter's election, the Democrat overtook the Republican. Okay. So, we know that's the pattern.
The problem is that if the media doesn't adequately explain this, voters are going to hear, let's say, Donald Trump is in the lead in Pennsylvania. If he wins Pennsylvania, he's going to win the election. Let's say it comes down to Pennsylvania as the pivotal swing state, and then Trump says, "I'm the winner." He's already cast aspersions on mail-in ballots as fraudulent, and he's already cast aspersions on Philadelphia as a corrupt place. Philadelphia is going to have the most ballots, most uncounted ballots. They're biggest city in Pennsylvania, heavily Democratic, heavily minority. Those votes are going to come in. Maybe Joe Biden pulls it out after Trump's been in the lead.
If the media hasn't conditioned people to believe this, and then Biden becomes the president, I mean, this is one of my nightmare scenarios, is the public on the Trump side going to accept that or they're going to believe that it was fraudulent? What is it going to mean in terms of social protests? What's it going to mean in terms of legitimacy of the Biden presidency, if you've got a large percentage of the public that honestly believes, because of what the president saying, that the election has been stolen because of the shift in ballots? So, we're trying to educate the media now. I've actually been speaking to people on decision desks, people who are involved in coverage of these decisions, people who call races to talk to them about the message from the media should be too early to call.
No more talking about 100 percent of precincts reporting, it should be 40 percent of ballots outstanding if that's what it is, the number of absentee ballots that are yet to come in. Even on election night, in those states that allow a ballot to be postmarked on election night, it might be that we don't even know how many ballots are outstanding yet, at least 40 percent of ballots are outstanding or something like that. So, it is one of my very top concerns. I think the message is starting to get through to the media that there needs to be this kind of education about this potential issue.
[HW]: Isn't that also the problem of that even can be exaggerated, because of the use of polling data exit, when people come out to make projections that aren't necessarily accurate?
[RH]: Right. So, this is a real question about exit polling. I'm not an expert in exit polling, but as I understand it, most of the problem last time was not that the exit polls were wrong, but it was that the pre-election polls were wrong. They were wrong within their margin of error, but everyone went the wrong way. Maybe that was under weighting of non-college educated whites or whatever it was that... Because when you poll people, everyone's going to say they're going to vote, but we have to kind of predict if they're actually going to vote. There's often difference between what all eligible voters say, and what those who are likely voters actually do.
Exit polling is now being done in a more sophisticated way, including making sure that all those absentee ballot voters are found. So, I think that is a big part of what's going to help, and exit polling can actually be validating in the sense. If it turns out that one candidate has a 3 percent lead in these more sophisticated exit polls and in the end of the day when all the ballots are counted, it's around that, then that can be validating. But you're right, it could work the other way. It's going to be very hard to poll during a pandemic, if we still have these problems. It's going to be hard to know who's voting by mail and all of that, who's ballots are not going to get counted. So, it's a little precarious, but I don't know if the alternative is not having exit polling, because we learn a lot from exit polling too.
You learn things like, what were the three top issues that people cared about? Was it immigration? Was it healthcare? Was it the economy? So, I think we're going to have that data, and hopefully, it's going to be more helpful than harmful.
[HW]: Right. So, I want to move into some of the questions from the audience and tie the first question into something that you alluded to before, what happened in Wisconsin. The question one of our audience members poses is may a state require an in-person election, despite the public health threat posed by COVID-19 pandemic stay at home orders? So, I'd like you to talk a little bit about that, and then talk about what happened in Wisconsin, which went all the way to the Supreme Court.
[RH]: I guess the question is can the state require an in-person election?
[HW]: Right.
[RH]: I think the answer is yes. I would say unless the conditions are so dire that people actually cannot vote in this way. I'll talk about Wisconsin in a second, but just today, the United States Court of Appeals for the Fifth Circuit overturned a district court ruling, which had said that Texas has rules that say, you can't vote by mail unless you're over 65 or have an excuse and lack of immunity and fear of getting the disease is not an excuse. The court said no constitutional problem, and it's perfectly fine for Texas. As long as you allow in person voting, no requirement that you offer absentee balloting as well. I think that's where the courts are going to end up. You would have to show that the inability of the state to provide a safe atmosphere is so severe that it's disenfranchising.
I think it's going to be hard to convince an increasingly conservative judiciary, as we saw from the Fifth Circuit's opinion about this. What do we know about what happened in Wisconsin? That election was held on April 7. It was very controversial. At the last minute, the Governor tried to cancel it. The legislature rejected it. The State Supreme Court rejected it. The U.S. Supreme Court got involved, because there was dispute about counting late arriving ballots. That was complicated. We can get into that.
Well, here's we know about voting. People in Milwaukee, as I mentioned at the top of our discussion, if they didn't vote by mail, they waited in very long lines. There was a huge racially disparate impact. So, although, white Democrats voted in large numbers, African American Democrats voted in much lower numbers. Part of that is where in the state, the state Democratic Party was getting the message out and how they could get people to vote. We know Republican turnout was way down voting by mail, because the president had said don't do it and the Republican Party in the state had not really reached out in the same way. I think the lesson that we're going to learn is, despite what the president is saying, both parties are going to try and reach out and have as many people vote by mail as possible.
It's going to be different in every state. It's going to be very hard to do that in Texas. It's going to be a lot easier to do that in the swing states, Wisconsin, North Carolina, Pennsylvania, Michigan, Arizona all have no excuse absentee balloting. So, I think there's going to be a push for that. So, I don't think you're going to have a state that requires anyone who's able to vote in person. But to the extent they do, as Texas is trying to do, I don't think there's going to be a way to legally block it.
[HW]: I take it that conversely, thinking of another question an audience member asked, is that a state couldn't require that there to be voting just by mail or say curbside drop off?
[RH]: A state could require, I think. State could require vote by mail unless you could show that system was somehow unsafe. I think the state has the choice, and that's what five states do. That's essentially what California is moving towards. I think that doesn't present the same problems, as requiring someone to show up physically at a polling place. I should say I'm on the record, I'm not a huge believer in all vote by mail, generally. But I do think that vote by mail under conditions of a pandemic is absolutely essential. I think there are problems with vote by mail, both in terms of the raised risk of fraud, which I still think is relatively small, but still there.
Also, as I mentioned earlier, the problem of voters are more likely to have their ballots tossed, because they're going to make a mistake in how they fill out the ballot. We know this can have a racially disparate impact too. There's a lawsuit in Georgia over Gwinnett County, where African American voter ballots were much more likely to be tossed out because people have to make discretionary decisions about accepting ballots. If you're dealing with a situation where there's a racially discriminatory problem, it's going to reflect in accounting of ballots too.
[HW]: So, in terms of the places that were there, and there will be in a lot of places, still actual voting places, but in some places, there have been tremendous reductions in the number of polling places. Is the question of where people can vote and how many polling places there are, is that solely within the discretion of a local election authority? Can it be legally challenged?
[RH]: Well, it used to be that the parts of the country that had a history of racial discrimination voting had to get approval under the Voting Rights Act for consolidating polling places. That part of law of the Voting Rights Act was thrown out by the Supreme Court in the Shelby County case in 2013. It's possible if polling places are closed in a discriminatory way that there could be lawsuits to try to open up polling places, but that's a cumbersome thing to do and it's not always easy. One of the things we've seen with the pandemic is that public places are consolidated to the last minute simply because election officials cannot find adequate number of workers. In Chicago, in Illinois when they were holding their primary during the pandemic, they had to pull people off the street to act as election judges. They were so desperate.
[HW]: So that goes back to your point about the need for advanced planning, which-
[RH]: Absolutely.
[HW]: Seems to be absolutely imperative. Let’s just say, one of our audience members wants to know something about election rigging and what's done about election rigging. So, let's just say for example that there's a report that there's somebody leaves a polling place with a bunch of actual ballots in a box or something like that, and they're not brought to where they're supposed to be brought. Who has the authority to do something about that?
[RH]: Well, that could be both a state crime and a federal crime, because we're dealing with a federal election. I meant to mention this earlier about ballot harvesting, because this is a topic I get asked about a lot. It relates back to the 45th Congressional District. So, let's talk about ballot harvesting. So, that's a kind of a pejorative term. Maybe a more neutral term is third-party collection of ballots. Here's the issue. If you are trying to encourage your voters to vote by absentee ballot, can you come to their house and say, hey, why don't you vote your ballot now? I'll take it from you, and I'll turn it in. In California, since 2017, that's completely legal. In North Carolina, where we had that controversy I talked about, it's illegal. If you're not a family member, you can't touch the person's ballot.
In a place like Colorado, where they have all mail balloting, you can collect up to 10 ballots. I don't think ballot harvesting itself is somehow unethical or somehow wrong. The problem with ballot harvesting is that it facilitates the ability to do something wrong. So, in North Carolina, in order to tamper with the ballots, you first had to get the ballot out of people's hands. So, I think that ballot harvesting raises the risk that someone's going to destroy ballots or tamper with ballots.
So, I would favor in California moving to a system where we have a limit on how many ballots can be collected, making sure that in places where people might have difficulty turning in their ballots, for example, nursing homes, or Native American reservations, where there's not easy access to the U.S. mail, that there are exceptions built in or safeguards built in. But I should be clear, despite the fact that Republicans have claimed fraud in rigging due to ballot harvesting in California, absolutely no evidence that any ballots were tampered with. In fact, until the president started talking about this, Kevin McCarthy, the Republican leader, had been saying that the Republican Party in California needs to do more ballot harvesting, because they need to catch up with Democrats.
What Democrats are doing is they're going out door to door and they're trying to bank their votes. Get their early vote in and then they're trying to do it by mail. So, understand what they're trying to do. It's raising a lot of suspicions. It's not in itself wrongful, but anytime ballots are out of the hands of election officials, we need to be on guard. And I should say, back to rigging, there's a ballot tampering controversy brewing in Paterson, New Jersey right now. It's very hard to hide one of these conspiracies. and there are calls for a recount, there’s calls for a new election.
When these things happen, they tend to be found out if there's any organized effort to do this, it requires a conspiracy among a number of people. Usually, this is found out. How did they find out in Paterson, New Jersey? Because people said, I never got my ballot, or you're showing me in the records is though I voted, I never voted. So, we find these things out and law enforcement can take steps to prevent it.
[HW]: It could be either state or federal law enforcement?
[RH]: Yes, especially if you're dealing with a federal election. Absolutely.
[HW]: If the state officials wanted to do something and the federal didn't?
[RH]: Well, this is what happened in North Carolina in 2016. In the 2016 election, the same guy that was involved in that 2018 fraud was accused by state officials of engaging in the same activity. They went to the U.S. Attorney in the Eastern District and tried to get an investigation, and they were unsuccessful. That was an exercise of prosecutorial discretion, I guess, or lack of resources, or lack of interest. And then we had this controversy two years later.
[HW]: One other question and then I'm going to turn it back to Veronica, a member of the audience wants to know, would it be possible for the Congress to make a law saying that all national elections for Representatives, Senators, the President and Vice President are to be by mail-in ballot?
[RH]: So, could Congress requirement all mail-in balloting? For federal elections, I think the answer is yes. In Article 1, Section 4 of the Constitution, it provides that states set the time, place, and the manner of conducting congressional elections subject to congressional override. This is the same authority that lets Congress pass laws like the National Voter Registration Act, which requires states to accept registration from using a federal form or require offering voter registration opportunities at Department of Motor Vehicles and public assistance agencies, etc. So, yes, it could happen. I don't expect we're going to see it, but it could happen theoretically.
[HW]: Actually, one final question before I turn it back to Veronica, and I realized, I believe it was Yogi Berra that said, "It's impossible to predict the future." But if you have to, what do you think are the odds that this year's presidential election will wind up in front of the Supreme Court?
[RH]: Well, I think the odds are pretty low. This is the only way I'm able to sleep at all at night, because the only way that's going to happen is if the election is so close in the Electoral College that this stuff’s really going to matter. There may be pre-election issues before the Supreme Court over various rules. That would mean we have a very, very close election or close election contest. If that happens, yes, I do think the Supreme Court would get involved. Just like you prepare for the small risk of a nuclear meltdown if you run a power plant, we have to prepare for the small risk of an election meltdown in November.
[HW]: Thank you Rick, and now I’m going to turn it back to Veronica for any additional questions and wrap up. Thank you.
[RH]: Thank you.
[VG]: Thank you, Henry. Thank you. And Rick, thank you for addressing ballot harvesting, because we did have several questions and concerns about that and I think you responded to those questions. Following up on the pending litigation in the State of California, as you know the Republican National Party and others have filed several federal lawsuits to block the Governor's recent executive order from serving all voters in the state for the state mail-in ballots for the general election, arguing it's unconstitutional and invites voter fraud. There's going to a preliminary injunction hearing on July 16. They're trying to move up the scheduling right now as we speak. What's your thinking of how that case is going to go?
[RH]: Yeah. So, there are essentially two arguments raised in the lawsuit. The first is that the governor doesn't have the authority to order that every voter be sent a mail-in ballot. The constitutional hook for this, the reason they're in federal court rather than in state court claiming a state separation of powers issue is they're claiming that that same part of the constitution that states the power to set the rules for congressional elections subject to congressional override applies to state legislatures, and the governor's not the legislature. I think that aspect of the case, while they raise some arguments that could be meritorious is going to be mooted, because the state legislature which is heavily Democratic is already on its way too approving similar kind of legislation.
So, I think that claim that the legislature doesn't want it, or the legislature has an authorized it is going to disappear. The other claim, which is that this will provide a basis for allowing fraud in the elections, thereby diluting the votes of legitimate voters and disenfranchised them, I don't think that has a strong argument for two reasons. Number one, and we saw a case like this, there was the same kind of challenge to all mail election primary in Nevada. The court said, where's your evidence of fraud? So, I think one issue is, there's not enough evidence that sending ballots to every voter is going to lead to fraudulent conduct.
The other is just generally, the courts show a lot of deference to the decisions of how states decide to run their elections, and that was one of the messages that came out in this Fifth Circuit case today that federal court should not be micromanaging the details of elections. So, I don't think it's likely that the lawsuit is going to go forward, but I do want to mention one other thing, the difference between this Nevada lawsuit and the California lawsuit. There's a lot of misinformation about this, in part, because I think the Governor did a bad job announcing what they're doing. He said, we're sending the ballot to every registered voter and the truth is there are probably millions of people on the California voting rolls who are no longer eligible. They're dead, or they've moved. In fact, they're not sending it to every registered voter, they're sending it only to active registered voters, which are people who voted within the last few elections. If you're an inactive voter, so you haven't voted in a while, you're put in a different pile. Those people are not getting sent ballot. So, it's not as though your great aunt who has been dead for 20 years is going to get a ballot sent to your address that you could then go out and vote, which of course be a crime. But so, I think people should have less concern about sending all of these ballots. I'm not generally in favor of sending ballots to everyone, but given the pandemic and given the backlog that we're seeing in states where you have to request the ballot and have it sent back to you, I think it's a reasonable choice to make at this point.
[VG]: I think another issue that's raised is can the United States Post Office address these other internal and external pressures that we could have problems, especially from the Trump administration. What's your thinking on that?
[RH]: So, vote by mail requires a working post office. Now, it's not true that everyone returns their balance by mail. Some people put them in drop boxes, depending on what the state allows or dropping them at vote centers. But yes, we need to working post office, but we recognize in our report, Fair Elections During a Crisis, that you can't just depend on vote by mail. If we have to all get online because we're not getting our ballots, then that's what we'll have to do. So, I certainly hope we have a functioning post office.
I think it's in the interest of the country, and its interest of the bipartisan members of Congress to keep the post office working. So, far, we've seen no political interference signs at the post office with ballots. I certainly hope it will stay that way. It will be quite a scandal if there were slow handling of ballots or anything like that. We have to be prepared with a plan B, and a plan C, and a plan D. Who could have predicted what the last three months would have looked like in the United States? I mean, just unprecedented.
[VG]: No one.
[RH]: We've got to think about all the things and we haven't even mentioned this... Henry didn't get to this question, but in my book, I talked about what if we have a cyber attack on Election Day? or terrorist attack or hurricane or an earthquake? All of these things can happen. We haven't exhausted all the possibilities. So, we need to be planning for all eventualities because we have to hold the election in November.
[VG]: Agreed. What's your sense of the impact of the George Floyd situation is going to have on the election?
[RH]: Well, so one of the concerns I have is people feeling safe going to polling places. This was a concern yesterday or Tuesday, I should say, when people are going to polling places under conditions of curfew where there are military vehicles in the streets. I mean, really a scene not out of something you would expect to see in the United States. So, social unrest, military response, police response, it could affect turnout. It could affect people's ability to get to places, to be able to get to a polling place and be able to vote. I think it's very hard to know, but it's yet another stress on our system.
One of the answers that we're hearing too, what's the first step we should be taking to deal with the crisis that the George Floyd situation has brought forth for everyone is go and vote, but we have to ensure that people can safely vote on Election Day. That's going to require cooperation with law enforcement, election officials, and people being able to get to the polling places and cast their ballots.
[VG]: In addition, for people voting, since we do have several months before the election, what would you consider, I'll ask Henry the same question, a call to action? What should people be doing now that we make sure that we have a valid election, and it does not go to the Supreme Court?
[RH]: Yeah. So, one of the things is make sure you're registered to vote. Make sure that everyone you know is registered vote and that your voter registration is accurate. If you have to request an absentee ballot and you want to vote that way, you should request it as soon as you're allowed to. But the other point I'd make, and I'll turn this to Henry, is because we have such a decentralized election system, that means that it's the local administrators who have a lot of power. You can go to those people. You can send an email. You can call the office. Ask them, what's your plan for transparency? How are you going to conduct this election safely?
A lot of places, a lot of election administers are putting their plans online now. Put the pressure on those people to make sure they're thinking through all the eventualities, and they have enough resources. If they don't have enough resources, go to your local representatives. Go to your state and congressional representatives and demand that there would be adequate funding for our elections.
[HW]: I would agree with everything Rick just said and one additional thing. If you're somebody that's already registered and you are contemplating then asking to vote by absentee, make sure that you know for sure how you've signed your name in the first place so that there won't be any dispute about whether it is actually your vote when they're matching it up.
[VG]: Unfortunately, we are out of time. I know, Rick, you have another appearance in a few minutes. I want to thank you both for an exceptional conversation, Dean Richardson, the same to you, and the full staff at UCI Law School. For the audience, thank you so much for joining us today. Until the next symposium, stay safe.
[Narrator]: Thank you for joining us for UCI Law Talks, produced by the University of California, Irvine School of Law.
