Can Americans trust our electoral process?
If the answer isn’t an unequivocal yes, we’ve got a major problem. A free and fair election system is the bedrock of any democracy — without it, the legitimacy of the entire system is thrown into question.
Recent events have certainly given citizens cause for skepticism. There are good reasons to think that voter suppression played a key role in the 2018 midterm elections. Voter fraud scandals like the one most recently in North Carolina are likely to increase in future elections. And, of course, the president has asked two countries, Russia and Ukraine, to actively interfere in our election process.
So where does all that leave us?
Richard Hasen, a law professor at UC Irvine, has written a new book laying out the major threats to our election system. He focuses on four in particular: voter suppression, electoral incompetence, dirty tricks, and escalating rhetoric about “stolen” or “rigged” elections. Not all of these threats are equally worrisome, but collectively they paint a worrisome picture.
I asked Hasen to walk me through each of these dangers and explain what, if anything, we can do to eliminate them. A lightly edited transcript of our conversation follows.
Should Americans have faith in the electoral system?
I don’t think you can answer that question because we don’t have a single electoral system. We actually have something like 9,000 different elections going on. In some places, elections are administered better than others.
But if we have a very close election, the country will focus on those weakest links. That really is the place where the ugly side of election administration and counting gets exposed. There are also a lot of internal and external attacks on elections, including coming from the president himself, who has attacked the integrity of the election.
There are concerns about efforts to suppress the vote. There’s all of this talk about stolen and rigged elections, which I think undermines people’s confidence. So I think even if people are confident and even if the election system is running well, they may not have the confidence that their votes are going to be fairly and accurately counted.
Let’s go through the major threats one by one, starting with voter suppression. Where and why is this a threat?
To be clear, the threats I’m talking about are threats to the confidence that people have in the fairness and accuracy of the process. I think the pattern we’ve seen, especially over the last decade or so, and almost exclusively by Republicans, is efforts to make it harder for people to vote, especially people who are likely to vote for Democrats.
That undermines public confidence in two different ways. First, it convinces Republican voters that Democrats are trying to cheat and steal elections. There’s all of this talk about voter fraud, and voter fraud is focused on urban areas, areas with minority voters, areas with a lot of Democrats. So these laws are put in place that make it harder to register and vote.
Since there is no good evidence that voter fraud is a major problem, Democrats believe that these are not efforts to prevent voter fraud or promote public confidence. Instead, they’re seen as efforts by Republicans to try to cheat to win in the elections. So voter suppression ends up having this dual way of undermining people’s confidence.
The suppression of voting rights seems like a direct consequence of demographic changes and a Republican Party whose electoral fate is increasingly tied to a shrinking majority. Is it that simple?
I think it is that simple.
What do you mean by the phrase “electoral incompetence,” and why is it a significant problem?
For the most part, election administrators in this country do a pretty good job. It’s a very difficult task to run an election. But there are places where elections are run in an incompetent way. I give some examples in the book.
One example involves Brenda Snipes, who was the election official in charge of Broward County, Florida. In one election, she didn’t send out 58,000 ballots by mail that people had requested. In another election, she left the medical marijuana initiative off the ballot. I focused on the 2018 elections, the elections which broke the camel’s back where she was forced out of office. It was basically a comedy of errors all the way down.
I also talk about Secretary of State Brian Kemp in Georgia, a Republican who engaged in this kind of incompetence, although in that case it was more a combination of incompetence and malfeasance. But the point is that when there’s a close election, if you’re an election lawyer, you’re going to focus on the places where the election is done in the weakest places where you might be able to get a change.
So all of this incompetence or malfeasance, regardless of where or why it occurs, undermines trust in the entire process, and that’s a serious problem.
What are “dirty tricks,” and why are they a threat to our election process?
We all know of Russia’s 2016 efforts to try to influence our elections. We saw the hacking of key Democratic groups and officials. We saw the misinformation and provocation attempts via social media. We saw Russia’s attempts to access voter databases around the US. These are all new threats, and I think we could face even more serious threats down the road.
One of the threats I talk about in the book is what if the Russians or someone else targeted a Democratic city in a swing state for a power outage on Election Day? We don’t have good procedures to deal with that, so this is the kind of doomsday scenario that keeps me up at night.
We also have old-fashioned dirty tricks. Think of the 2018 election in North Carolina’s Ninth Congressional District, where you had tampering with absentee ballots. It was so bad that the bipartisan North Carolina state board of elections tossed out the results of the election and called for a new election. In this case, it basically amounted to stealing ballots or changing votes.
There are obvious advantages to relying on machines and computers to count votes, but do the risks outweigh the rewards?
The reason we moved to machine counting of votes is because when you have humans counting votes, they tend to be both less accurate and more prone to fraud. I think most people think the gold standard now is a hand-marked paper ballot. Fill in the bubble with your No. 2 pencil and have it run through a machine and you’ve got the markings on the page.
There’s a new controversy over these ballot-marking devices, though. We’re rolling them out here in Los Angeles County, where I am. They’re adopting them in Georgia. You vote on a touchscreen, it prints out a ballot which has a barcode or a QR code on it, then that bar code or QR code is counted. In the event of a recount, the count is of the results that are printed on the ballot.
There’s a big dispute now among computer scientists and voting integrity people and those who want more flexibility in terms of language and disability and giving people voting machines. I think it’s a trade-off. There are issues of security, but there are also issues of access. Because we have a decentralized election system, you see different jurisdictions making different choices about how to engage in that balancing act.
Your final threat is what you call an “increased rhetoric” around “stolen” or “rigged” elections. Why is this a danger, especially when most of the claims are fabricated?
The president famously declared, with no evidence whatsoever, that 3 to 5 million illegal votes were cast in the 2016 election. He said all of these votes went to his opponent, Hillary Clinton. None went to him. There’s absolutely no evidence to support this. But when people hear this, they believe that elections really are rigged.
We saw this, too, in the 2018 election when Stacey Abrams ran against Brian Kemp. Brian Kemp did some terrible things in terms of how he administered the election. He was a unique mix of misfeasance and malfeasance. Yet there’s no good evidence that what he did actually affected the results. But you have someone like United States Sen. Sherrod Brown [D-OH] saying the election was stolen, or Sen. Kamala Harris saying that without voter suppression, we have Gov. Stacey Abrams.
All of this rhetoric, when it’s not proven, undermines people’s confidence in the process. I think that can have a demobilizing effect and it can erode the entire election process.
What would you say is the greatest threat to electoral integrity in this country?
I would say that Donald Trump is the greatest threat to election integrity because of the fact that he has been calling lots of elections rigged without any good evidence, and because he’s in charge of a federal government that needs to be taking very serious steps to ensure that we don’t have internal or external forces that are trying to disrupt our elections.
And of course there’s the fact that he’s now invited two countries, Russia and Ukraine, to actively interfere in our election process. So, yeah, that’s uniquely bad.
A democracy can’t work if people don’t have faith in the electoral process and if the losing side doesn’t accept the legitimacy of the winning side. If you’re right, there are good reasons to be suspicious of the process.
So where does that leave us?
I’m afraid it leaves us with the election administrator’s prayer, which is “Lord, let this election not be close.” The best thing to deal with the problem is an overwhelming victory.
In fact, Nancy Pelosi, in an interview with the New York Times on another subject, dropped what I considered to be a bombshell, which is that she did not believe that Trump would have accepted the Democratic victory in 2018 in the House of Representatives unless Democrats won by a convincing margin.
I think there’s a real concern that in this hyper-polarized period, if we have very close elections, things can go bad very quickly on Election Day. Of course, if that happens and it’s very close, you’re going to see all kinds of outside agitators like the Russians trying to provoke Americans to be even more polarized than we already are.
So how can we fix the system? What are some concrete steps we can take?
When it comes to short-term solutions, it’s hard to come up with good ones, which is why I felt like I needed to write this book now because it’s so urgent. But there are steps I think we need to consider in the areas of law, politics, media, and tech to try to triage things.
Longer-term, I think we need to do things like move toward national nonpartisan election administration. We need to have better civics education so that people understand the importance of democracy and vote counting. There needs to be transparency among election administrators and officials as to how votes are going to be conducted and what the rules are going to be.
We can’t take for granted, as we have for so long in our history, that in a close election, the loser will simply be gracious and step aside. We have to expect that they’re going to be these hard-fought battles and be prepared for those as we go forward.